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Parent Ordered to Pay Attorney’s Fees for Attorney Appointed to Represent the Children Has Standing to Raise Legal Malpractice Defense

In a full-fledged opinion by Justice Saxe, the First Department determined that father, who had been ordered to pay the attorney’s fees for the attorney appointed to represented the children, had standing to raise the defense of legal malpractice:

…[A] parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards. That the children cannot hire and pay for their own attorneys, leaving it to the court to make the necessary appointment, does not alter the applicable standards, or the means by which they may be raised.  Venecia V v August V, 2013 NY Slip Op 08140, 1st Dept 12-5-13

 

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New York Had Continuing Exclusive Jurisdiction Re: Custody of Child Living With Mother In Florida Eight Months Per Year

Family Court had continuing jurisdiction over the custody of a child who had been living with mother in Florida.  The custody arrangement included four months per year with the father in New York:

…[T]he Family Court correctly determined that New York had exclusive, continuing jurisdiction to determine custody pursuant to Domestic Relations Law § 76-a. It is undisputed that the initial child custody determination was rendered in New York, and there is ” ample evidence of a significant connection by the child with this state for Family Court to retain jurisdiction'” (…see Domestic Relations Law § 76—a[1][a]). The father’s extensive parenting time took place in New York, the child has relationships with a half-sibling and extended family in New York, and the father has furthered the child’s education and attended to her medical care in New York … . Accordingly, the court correctly concluded that the child has a substantial connection to New York, that there was adequate evidence in this state regarding her present and future well-being, and that jurisdiction in the courts of this state is proper (see Domestic Relations Law § 76-a[1]). Matter of Seminara v Seminara, 2013 NY Slip Op 07978, 2nd Dept 11-27-13

 

Father Demonstrated His Loss of Employment Justified a Downward Modification of Child Support

The Second Department determined Family Court erred when it held father had not demonstrated his loss of employment constituted a substantial and unanticipated change in circumstances justifying a downward modification of his child support obligations:

Loss of employment may at times constitute a substantial and unanticipated change in circumstances … . A party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that he or she diligently sought to obtain employment commensurate with his or her earning capacity … .

Here, the father testified that he is unable to pay child support because he lost his prior job in October 2010. More specifically, he stated that he had been working at a restaurant in the dual capacity of manager and head waiter. Following his loss of that employment, he sought and obtained a position as a manager at a restaurant at a lesser salary, but could not find a position working in the dual capacity of manager and head waiter.

Under these circumstances, the father demonstrated that his loss of employment and obtainment of new employment at a lesser salary constituted a substantial and unanticipated change in circumstances, and that he made a good faith effort to obtain new employment which was commensurate with his qualifications and experience… .  Matter of Dimaio v Dimaio, 2013 NY Slip Op 07969, 2nd Dept 11-27-13

 

 

Supreme Court Properly Declined to Give Husband Credit for Separate Property Contributions to Marital Residence—Husband Subsequently Conveyed Property to the Parties Jointly

The Third Department determined that Supreme Court properly declined to credit the husband with separate property contributions to the acquisition of the marital residence:

Although the residence was purchased prior to the marriage and the husband’s separate funds were used for the down payment and premarital mortgage payments, the husband conveyed the property to the parties jointly in 1998, creating a presumption that it then became marital property in its entirety … .  Under these circumstances, whether to grant the husband a credit for the contribution of separate property to the acquisition of this marital asset was within Supreme Court’s discretion …, and we find no abuse of that discretion here. Alecca v Alecca, 516659, 3rd Dept 11-21-13

 

Criteria for Reduction or Termination of Father’s Child Support Obligations Not Met/No Showing Wife Interfered with Access to Child/No Showing of Unjustified Abandonment by Child

The Third Department affirmed Family Court’s determination that the father’s child support obligations for his 18-year-old son should not be reduced or terminated.  The court described the relevant criteria:

Generally, a parent in this state is obligated to support his or her child until the child turns 21 (see Family Ct Act § 413 [1] [a]).  However, a noncustodial parent’s child support obligation may be suspended where such parent establishes that “the custodial parent unjustifiably frustrat[ed] the noncustodial parent’s right of reasonable access” … .  On the record before us, we agree with Family Court’s determination that the father failed to establish that the mother unjustifiably interfered with his visitation.  * * *

…[W]e similarly conclude that the record supports a finding that the father’s support obligation should not be terminated based upon the son’s refusal to have contact with him.  A child’s right to support payments may be forfeited when he or she is “of employable age and . . . actively abandons the noncustodial parent by, without cause, refusing contact” … .  However, the child’s refusal of contact must be “‘totally unjustified'” …, and “where it is the parent who causes a breakdown in communication with his [or her] child, . . . the child will not be deemed to have abandoned the parent” … .  Matter of McCloskey v McCloskey, 516342, 3rd Dept 11-21-13

 

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Criteria for Termination of Parental Rights Based Upon Abandonment Explained

The Third Department determined Family Court properly terminated respondent’s parental rights after a finding of abandonment:

Despite respondent’s intermittent homelessness, difficulties in arranging transportation, and lack of finances and accessible phone service, at some points during the six-month period she had housing and employment.  Thus, Family Court found that it would not have been impossible or unfeasible for respondent to contact petitioner or her child at some time during that period … .  …

Unlike in a permanent neglect proceeding, in an abandonment proceeding petitioner is not required to prove that it exercised diligent efforts to reunite the family or assist the parent in maintaining contact (see Social Services Law § 384-b [5] [b]…; compare Social Services Law § 384-b [7] [a], [f]).  The only statutorily authorized disposition after a finding of abandonment is an order committing the child’s custody to petitioner; a suspended judgment is not an option (see Social Services Law § 384-b [3] [g]; compare Family Ct Act § 631 [permitting suspended judgment as an option after a finding of permanent neglect]).  Thus, Family Court properly terminated respondent’s parental rights.  Matter of Erving BB …, 515880, 3rd Dept 11-21-13

 

Amendment Allowing the Consideration of Incarceration as a Reason for a Downward Support Modification Is Not Applied Retroactively

The Third Department affirmed Family Court’s finding that the amendment to Family Court Act section 451 (which allows a court to consider incarceration as a reason for a downward support modification) does not apply retroactively:

Before the 2010 amendment to Family Ct Act § 451, a parent’s loss of income resulting from incarceration generally was not considered a sufficient change in circumstances to warrant a reduction or suspension of child support … .  As part of legislation making many changes regarding child support (see Assembly Mem in Support, 2010 McKinney’s Session Laws of NY at 1747), Family Ct Act § 451 was amended in several respects including, as relevant here, to provide that “[i]ncarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of nonpayment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment” (Family Ct Act § 451 [2] [a]; see L 2010, ch 182, § 6).  However, the legislation further provided that, as to the section that included this amendment, it “shall apply to any action or proceeding to modify any order of child support entered on or after the effective date of this act”… .  Matter of Baltes v Smith, 514485, 3rd Dept 11-21-13

 

Grandmother Had Standing to Request Visitation/Visitation Properly Granted

The Third Department affirmed Family Court’s determination that grandmother had standing to petition for visitation with the child (Dakota) and that such visitation was in the best interests of the child. With respect to the standing criteria, the Third Department wrote:

Family Court correctly determined that petitioner established standing to petition for visitation with Dakota. When a child’s parents are living, a grandparent who seeks visitation with his or her grandchild must establish that “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72 [1]) in order to obtain standing … . The grandparent “must establish a sufficient existing relationship with [his or her] grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention” … .  In the latter situation, the grandparent’s “effort is measured against what [he or she] could reasonably have done under the circumstances”… . Matter of Rubel v Wilson, 511985, 3rd Dept 11-21-13

 

Family Court Should Not Have Terminated Parental Rights (After an Alleged Violation of a Drug-Treatment Condition of a Suspended Judgment) Without Holding the Necessary Hearings

The Second Department sent the matter back to Family Court for a hearing on whether the parents (after a finding of permanent neglect) violated the drug-treatment condition of a suspended judgment, and, if warranted, a new dispositional hearing with respect to the termination of parental rights. Family Court, based solely on documents from DSS, determined the parents had violated the drug-treatment condition of the suspended judgment, and, on that ground, had terminated the parents’ parental rights without any hearings:

Upon a finding of permanent neglect, the Family Court may suspend judgment, “during which time the parents must comply with terms and conditions that relate to the adjudicated acts or omissions of the parents which led to the finding of [permanent] neglect” (…see Family Ct Act §§ 631[b]; 633). By enacting Family Court Act §§ 631(b) and 633, the Legislature vested the Family Court with discretion to give a parent of a permanently neglected child a second chance before terminating the parent’s parental rights … . If a parent fails to comply with the terms and conditions of a suspended judgment, “a motion or order to show cause seeking the revocation of the order” suspending judgment “may be filed,” and “if, after a hearing or upon the respondent’s admission, the court is satisfied that the allegations of the motion or order to show cause have been established and upon a determination of the child’s best interests, the court may modify, revise or revoke the order of suspended judgment” (22 NYCRR 205.50[d][1], [5] [emphasis added]). “The Family Court may revoke a suspended judgment after a violation hearing if it finds, upon a preponderance of the evidence, that the parent failed to comply with one or more of its conditions” … . * * *

…[E]ven if the Family Court had conducted a hearing on the DSS’s motion to hold the parents in violation of the drug-treatment condition, and had determined that the violations had been established by a preponderance of the evidence, the Family Court was required to conduct an inquiry into the children’s best interests before terminating the parents’ parental rights … . Although a separate dispositional hearing is not always required in a proceeding to enforce a suspended judgment where the violation hearing or prior proceedings established that the court was aware of and considered the children’s best interests …, this is not such a case … . The Family Court conducted no hearing at all on the motion to hold the parents in violation of the drug-treatment condition, and the record does not otherwise show that the Family Court made an inquiry into or adequately considered the best interests of the children in terminating the parents’ parental rights.  Matter of Timmia S, 2013 NY Slip Op 07739, 2nd Dept 11-20-13

 

Modification of Custody Reversed

The Second Department reversed Family Court’s modification of a custody arrangement (changing custody from mother to father), finding there was no sound and substantial basis for the modification in the record. There was evidence that the father induced the mother to agree to allow him to have custody of the child while she recovered from surgery by falsely stating the arrangement would be temporary:

Upon weighing the appropriate factors (see Eschbach v Eschbach, 56 NY2d 167), we find that the Family Court’s determination that the best interests of the child would be served by remaining in the father’s physical custody lacked a sound and substantial basis in the record, and that the child’s best interests will be served by awarding the mother sole physical custody of the child. The Family Court failed to give sufficient weight to the mother’s testimony, which it credited, that she only intended for the father to have custody of the child temporarily while she underwent a hysterectomy and moved from Washington to Colorado with her new husband. The record here shows that the mother, who stays at home to care for her children, has been the primary caregiver throughout the child’s life, while the father had limited involvement with the child until the mother transferred custody to him …. Furthermore, while living with her mother, the child thrived both at home and at school … .  * * * The Family Court also erred in finding that the mother replaced the “father figure” in the child’s life. The record contains no evidence to support a finding of parental alienation against the mother.

The Family Court also failed to give sufficient weight to the fact that the child’s relationship with her half-siblings, who reside with the mother, will continue to be disrupted if she remains in the father’s care, as the record demonstrates that the child and her half-siblings have a close and healthy relationship. Courts will not disrupt sibling relationships unless there is an overwhelming need to do so… . Matter of Shannon J v Aaron P, 2013 NY Slip Op 07733, 2nd Dept 11-20-13

 

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