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In Court Stipulation Was Valid Postnuptial Agreement; DRL 236(B)(3) Did Not Apply

In affirming Supreme Court’s determination that a stipulation/postnuptial agreement, which was not signed in open court, was not invalidated by Domestic Relations Law 236, the Second Department explained:

…[T]he Supreme Court properly determined that the postnuptial agreement was valid and that Domestic Relations Law § 236(B)(3) does not compel a different result. “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (Domestic Relations Law § 236[B][3]). A written agreement between parties made before or during a marriage which does not meet the formalities of Domestic Relations Law § 236(B)(3) is not enforceable … . However, Domestic Relations Law § 236(B)(3) “applies only to agreements entered into outside the context of a pending judicial proceeding”… . Moreover, “[s]tipulations of settlement are favored by the courts and are not lightly cast aside” … . Thus, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered” (CPLR 2104…).

Here, the record established that the parties relied on the duly executed stipulation of settlement, which was denominated as the postnuptial agreement, as a means of resolving the respondent’s prior divorce action. It is undisputed that the postnuptial agreement was executed while the respondent’s action was pending before the Supreme Court … . … Accordingly, the postnuptial agreement was valid, as it “was executed in the context of a pending divorce proceeding, and was subject to judicial oversight, even though it was not signed in open court” … . Rio v Rio, 1013 NY Slip Op 07023, 2nd Dept 10-30-13

 

Relocation Criteria Explained

In affirming the grant of father’s petition to relocate with the child, the Third Department explained the criteria:

The party seeking to relocate with a child – here, the father – bears the burden of establishing by a preponderance of the credible evidence that the relocation is in the child’s best interests … .  Family Court must consider a number of relevant factors in making this determination, including “‘each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the [nonmoving] parent, the degree to which the [moving] parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the [non-moving] parent and child through suitable visitation arrangements'” … .  Notably, as “Family Court is in the best position to make factual findings and credibility determinations, its decision will not be disturbed if it is supported by a sound and substantial basis in the record” … .  Matter of Cole v Reynolds, 514712, 3rd Dept 10-24-13

 

Sex Offender Status Not Enough to Support Neglect Finding

The Third Department reversed Supreme Court’s finding of neglect against respondent mother for leaving the children with the father unsupervised.  The father was a sex offender who failed to complete sex offender treatment and was previously found to have neglected the children by Supreme Court on that and other grounds.  In the prior appeal of the father’s neglect finding, the Third Department reversed Supreme Court and determined the father’s status as a sex offender was insufficient to support a finding he neglected the children and the other factors relied upon by the court lacked a sound and substantial basis in the record.  Because of those prior rulings, a finding of neglect against the mother based on leaving the children unsupervised with the father had to be reversed:

Inasmuch as the finding of neglect against respondent was premised on her permitting the father to have unsupervised contact with the children, it would be completely illogical to conclude that the subject children’s “physical, mental or emotional condition [had] been impaired or [was] in imminent danger of becoming impaired as a result of the failure of [respondent] . . . to exercise a minimum degree of care . . . in providing the child[ren] with proper supervision or guardianship” (Family Ct Act § 1012 [f] [i] [B]), when we previously determined that petitioner failed to prove that the father posed a risk of imminent danger to them (Matter of Hannah U. [Dennis U.], 97 AD3d at 909).  Thus, for the same reasons that led us to reverse the finding of neglect as to the father, we similarly conclude that petitioner failed to prove by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]) that respondent neglected the subject children as alleged in the petition … .  Matter of Hannah U …, 514024, 3rd Dept 10-24-13

 

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Special Immigrant Juvenile Law Triggered by Abuse, Neglect or Abandonment by One Parent (Not Both)

In a full-fledged opinion by Justice Roman, the Second Department determined that in order to qualify for the special immigrant juvenile provision of the Immigration and Nationality Act (8 USC 1101), which provides a gateway to permanent residency for undocumented children who have been abused, neglected or abandoned, the juvenile need only demonstrate that reunification with one (not both) of his or her parents “is not viable due to abuse, neglect, abandonment, or a similar basis found under State law…”:

…Susy established that reunification with her father was not viable due to abandonment (see 8 USC § 1101[a][27][J][i]…). The Family Court, as evidenced by its comments at the hearing, denied Susy’s application for a special findings order on the ground that the viability of reunification with Susy’s mother rendered Susy ineligible for SIJS. However, we disagree with the Family Court’s interpretation of the reunification component of the statute.

“To interpret a statute, we first look to its plain language, as that represents the most compelling evidence of the Legislature’s intent” … . Under the plain language of the statute, to be eligible for SIJS, a court must find that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law” (8 USC § 1101[a][27][J][i] [emphasis added]). We interpret the “1 or both” language to provide SIJS eligibility where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar State law basis… .  Matter of Marcelina M-Gv Israel S, 2013 NY Slip Op 06868, 2nd Dept 10-23-13

 

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Failure to Call Treating Physician Allowed Negative Inference in Case Alleging Mother Incapable of Caring for Child by Reason of Mental Illness

The First Department determined Family Court properly found mother incapable of caring for her child by reason of mental illness and noted the court properly drew a negative inference from the mother’s failure to call her own treating physician to rebut the allegations in the petition and a suspended judgment is not available:

The evidence, including testimony from a court-appointed psychologist who examined respondent mother, provided clear and convincing evidence that she is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the child (see Social Services Law § 384-b[4][c], [6][a]…). The psychologist testified that respondent mother suffers from, inter alia, bipolar disorder, which interferes with her ability to care for the child, placing the child at risk of becoming neglected if she is returned to her mother’s care. Moreover, respondent mother’s testimony confirms that she lacks insight into the nature and extent of her mental illness … .

Contrary to respondent mother’s contention, the Family Court properly exercised its discretion by drawing a negative inference against her for failing to call her treating physician or other medical providers to rebut the allegations raised in the petition and by the testimony after she expressed an intention to call her providers … .

The Family Court did not err in denying respondent mother’s application for a suspended judgment. This dispositional alternative is not available after a fact-finding determination of mental illness (see SSL § 384-b [3] [g], [4] [c]…). Matter of Love Joy F, 2013 NY Slip Op 06792, 1st Dept 10-17-13

 

Court Should Have Held Lincoln Hearing to Learn Preferences of 12-Year-Old Child

The Third Department remitted the matter to Family Court for a Lincoln hearing to determine the preferences of the 12-year-old child with respect to custody:

While the decision whether to conduct such a hearing lies within the court’s discretion …, it is often the preferable course … .  In this case, the court originally indicated that it intended to speak with the child and later reiterated this position.  While we can assume that the court ultimately decided that an interview with the child was not warranted or appropriate, the record is bereft of any articulation or explanation for such decision.

Additionally, we cannot ascertain from the record whether Family Court failed to consider the child’s wishes with respect to spending time with her father or whether it considered the child’s wishes, but rejected them as a basis for a modification. While Family Court stated in regard to the violation petition that the child’s wishes did not excuse the mother from complying with the existing orders, it is not clear to what extent, if any, this conclusion played in the court’s determination regarding the modification petition.  To be sure, the wishes of this 12-yearold child were “at minimum, entitled to consideration” …, and the record does not reflect whether such consideration was given to the child’s wishes.  As a result, and because we conclude that a Lincoln hearing is called for under the circumstances here … , we must remit the modification petition to Family Court. Matter of Yeager v Yeager, 515860, 3rd Dept 10-17-13

 

Father Not Denied Due Process by Absence from Portion of Neglect Proceeding

In affirming Family Court’s finding that the parents had permanently neglected their daughter, the Third Department noted that father had not been denied due process based on his absence from some of the proceedings:

We reject the father’s assertion that his due process rights were violated when Family Court proceeded with a portion of the fact-finding hearing in his absence.  Although a parent in a proceeding seeking to terminate parental rights has a right to be present for all stages of the proceeding, that right is not absolute … .  On the second day of the factfinding hearing, the father’s counsel appeared and informed the court that his client would not be present due to health reasons. Rather than request an adjournment, counsel affirmed that the father’s attendance at the hearing “would not be required today,” requested another hearing date – which the court agreed to schedule – so as to allow the father to testify, and thereafter actively participated in the hearing.   Under these circumstances, we discern no error in Family Court’s decision to proceed with the hearing in the father’s absence or any prejudice inuring to the father as a result thereof… . Matter of Arianna BB…, 2013 NY Slip Op 06758, 3rd Dept 10-17-13

 

Order Prohibiting Visitation Unless Recommended by Therapist Improper

The Third Department affirmed Family Court’s neglect finding but determined the order prohibiting visitation unless recommended by a therapist improperly delegated the court’s authority to make determinations in the best interests of the child:

…[W]e find merit to respondent’s argument that Family Court’s order prohibiting visitation except “as therapeutically recommended or attendance at therapy with [the child] as recommended by a therapist after review by . . . Family Court” constitutes an improper delegation of the court’s authority to make determinations on the issue of the best interests of the child … .  Although the record contains some indication that Family Court recognized and attempted to avoid this delegation, the order failed to require further review unless triggered by the therapist, and did not direct the child to attend therapy with respondent unless recommended by the therapist.  As the order thus makes the recommendation of a therapist a prerequisite for any visitation, we find that there was an improper delegation of the court’s authority, and the matter is therefore remitted to Family Court for further proceedings regarding the issue of visitation… . Matters of Alisia M…, 515188, 3rd Dept 10-17-13

 

Family Court Properly Assumed Jurisdiction Over California Order

In affirming Family Court’s dismissal of mother’s petition for a modification of custody, the Third Department noted that Family Court properly assumed jurisdiction over a California custody order:

Family Court properly assumed jurisdiction over this proceeding.  As California no longer had exclusive continuing jurisdiction over this matter (see 28 USC § 1738A [d]), New York could assume jurisdiction for the purpose of modifying the California order so long as it “[was] the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent . . . continues to live in this state” (Domestic Relations Law § 76 [1] [a]; see Domestic Relations Law § 76-b).  “Home state” is defined as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a [7]).   Matter of Clouse v Clouse, 514987, 3rd Dept 10-17-13

 

Child Support Standards Act Formula Should Have Been Used

The Third Department determined Family Court erred in determining the parents’ respective contributions to child support when it used the catchall factor (factor 10, FamCtAct 413 (1)(f)(10)) to deviate from the Child Support Standards Act (CSSA) formula because the father had custody of the older child all the time and the younger child every other week.  The Third Department determined the CSSA formula should have been applied:

Here, the Support Magistrate stated that he was relying on factor 10, the catch-all provision for “[a]ny other factors the court determines are relevant in each case” (Family Ct Act § 413 [1] [f] [10]).  His stated reason for deviating from the presumptive amount was that the father has physical custody of the older child all of the time and of the younger child every other week, so the Support Magistrate adjusted the amount such that the father would not pay support when both children are with him.  This was merely another way of applying the proportional offset method, which would reduce a parent’s child support obligation based upon the amount of time that he or she actually spends with the child … .

The Court of Appeals has rejected this method as impractical, unworkable and contrary to the statute and legislative history … .  … While application of the CSSA formula may seem to produce unfair results where, as here, the parties equally share parenting time with a child, “[t]he difficult policy choices inherent in creating an offset formula for shared custody arrangements are better left to the Legislature” … .  The costs of providing suitable housing, clothing and food for the children during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount (see Family Ct Act § 413 [1] [f] [9]…). While there may be circumstances in which a deviation is warranted in situations involving shared parenting time, the Support Magistrate’s articulated reason did not provide an adequate basis for such deviation here… . Matter of Ryan v Ryan. 514954, 3rd Dept 10-17-13

 

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