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Out of State Visitation for All School Breaks and Three-Day Weekends (In Addition To Summers) Should Not Have Been Granted

The Second Department determined Family Court correctly awarded visitation with the father in Kentucky for the entire summer, but should not have awarded visitation with the father in Kentucky for school breaks and three-day weekends throughout the year:  In remitting the matter for re-working the The visitation, the court wrote:

The provision of the visitation schedule which, in addition to the summer visitation, awards the father visits in Kentucky during school breaks for “every Thanksgiving, Christmas, winter, mid-winter, spring, and Easter,” effectively deprives the mother “of any significant quality time” with the children, and is therefore “excessive… . While that provision takes into account the children’s need to spend time with the father and his family, it does not take into account the importance of their relationship with the mother and her extended family, in that it deprives the children of contact “during times usually reserved for family gatherings and recreation” … . We note that the court-appointed forensic evaluator recommended that the parties share parenting time during major holidays such as Thanksgiving, Christmas, and Easter. There was no contrary evidence that awarding all parenting time during these holidays to the father furthers the children’s best interests. The opinions of experts “are entitled to some weight” …, and, under the circumstances presented here, the Family Court should have awarded equal parenting time to the parties for these school breaks. Accordingly, we remit the matter to the Family Court to set forth a new visitation schedule regarding “Thanksgiving, Christmas, winter, mid-winter, spring, and Easter” that apportions those school breaks equally between the parties.  Matter of Felty v Felty, 2013 NY Slip Op 05454, 2nd Dept 7-24-13

 

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Family Offense of Disorderly Conduct Not Proven—No Proof of Public Inconvenience, Annoyance, or Alarm

In a full-fledged opinion by Justice Skelos, the Second Department determined the wife’s allegations against her husband did not demonstrate the family offense of disorderly conduct.  The wife alleged the husband tried to push her down stairs, twisted her arm and pushed her against a wall. Under the Penal Law, disorderly conduct requires an intent to cause or the reckless creation of a risk of causing public inconvenience, annoyance or alarm.  However, Family Court Act section 812 provides: “For purposes of this article, disorderly conduct included disorderly conduct not in a public place.”  The Second Department determined that, even in the context of a family offense proceeding, the “public inconvenience, annoyance or alarm” element must be proven:

We … hold that, even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct … . The plain language of the subject provision of Family Court Act § 812, in contrast, provides only that the conduct need not occur in a public place (see Family Ct Act § 812). The plain language of Family Court Act § 812 therefore pertains only to the actus reus of the offense—specifically, the place where it is committed—and does not speak to the mens rea of the offense. Indeed, since Family Court Act § 812 does not specify an alternative culpable mental state, if the mens rea provided for in the Penal Law were not applicable in family offense proceedings, it is unclear what the mens rea of this family offense would be. * * *

One can certainly contemplate conduct occurring in a private residence that is intended to cause, or evinces a reckless disregard of causing, public harm. Such conduct might include, for example, a loud fight, or a loud argument with disturbing content, occurring in an apartment building late at night, or under other circumstances where the public may reasonably be expected to hear or see the altercation. As the Court of Appeals has observed, “the risk of public disorder does not have to be realized,” in order to infer that an individual intended to cause, or recklessly disregarded the risk of causing, such a threat… . Matter of  Cassie v Cassie, 2013 NY Slip Op 05446, 2nd Dept 7-24-13

 

Denial of Father’s Petition for Modification of Custody Reversed

In reversing Family Court and granting father’s petition for a modification of a prior custody order awarding custody to mother, the Fourth Department wrote:

“Generally, a court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” … .  Here, we conclude that the court’s determination that it is in the best interests of the child to remain in the custody of the mother lacks a sound and substantial basis in the record.  ,,,

As a preliminary matter, we conclude that the court abused its discretion in failing to “draw the strongest inference that the opposing evidence permits” against the mother based upon her failure to appear for the hearing …, although we note that the court stated that it was doing so.  Although the court properly determined that the father failed to take steps to enforce his right to visit with the child, the court failed to credit the testimony of the mother’s family that the mother interfered with the father’s ability to visit the child; that the mother disparaged the father in the child’s presence; that, despite the court’s order granting telephone access to the child, the access lasted only two weeks; that the mother was verbally abusive to the child; that the child was afraid of her mother; and that the mother exhibited behaviors that support a determination that she failed to provide a proper home environment and parental guidance for the child … .  Further, the court failed to credit the evidence, including testimony and school records, that the mother failed to provide for the child’s emotional development and that the child’s intellectual and emotional development was supported by the mother’s family members and long-term friend, rather than by the mother ….  We note that there is no evidence that the mother has the financial ability to provide for the child and that the evidence establishes that the father has a job, a home, and pays child support … .

Although the court properly determined that the child “barely knows” the father, we conclude that the court erred in failing to give any weight to the 14-year-old child’s preference to live with the father rather than the mother, where, as here, the record establishes that her age and maturity would make her input “particularly meaningful”… . Matter of Lara … v Sullivan, 818, 4th Dept 7-19-13

 

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Termination of Parental Rights Affirmed Because Diligent Efforts to Reunite Parent and Child Were Made (In Spite of Misdiagnosis of Mother’s and Child’s Psychological Conditions)

The Fourth Department, over a dissent, affirmed Family Court’s termination of mother’s parental rights.  The dissent argued that the misdiagnosis of both the mother’s and child’s psychological conditions rendered the efforts to reunite the mother with the child inadequate.  The Fourth Department wrote:

Contrary to the contention of the mother, Family Court properly determined that petitioner made diligent efforts to reunite her with the child (see Social Services Law § 384-b [7] [a], [f]).  Among other things, petitioner arranged for a psychological assessment of the mother, arranged for therapy sessions for the mother and various services for the child, and provided the mother with parenting, budgeting, and nutrition education training.  Petitioner also provided the mother with supervised and unsupervised visits with the child. Most significantly, petitioner arranged for a child psychologist to meet with the mother on several occasions in her home to provide parenting training, and we agree with the court’s assessment that this was “truly a diligent effort” by petitioner to encourage and strengthen the parent-child relationship.

Contrary to the further contention of the mother, the court properly determined that she failed to plan for the future of the child (see Social Services Law § 384-b [7] [a]).  “ ‘[T]o plan for the future of the child’ shall mean to take such steps as may be necessary to provide an adequate, stable home and parental care for the child” (§ 384-b [7] [c]).  “At a minimum, parents must ‘take steps to correct the conditions that led to the removal of the child from their home’ ” (Matter of Nathaniel T., 67 NY2d 838, 840).  Here, while the mother participated in the services offered by petitioner and had visitation with the child, the evidence established that she was unable to provide an adequate, stable home for the child and parental care for the child… .  Matter of Cayden LR, 575, 4th Dept 7-19-13

 

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Children Were Not “Dependent on Court;” They Therefore Did Not Meet Criteria for Statutory Path to Lawful Permanent Residency in US

In a full-fledged opinion by Justice Cohen, the Second Department determined that two children born in Hong Kong, and living with their father in New York, did not meet the “dependency-on-the-family-court” requirement such that they could petition for special immigrant juvenile status (SJIS) pursuant to 8 USC1101 (which provides undocumented children with a gateway to lawful permanent residency in the US).  The court explained:

In New York, a child may request that the Family Court, recognized as a juvenile court (see 8 CFR 204.11[a]), issue an order making special findings and a declaration so that he or she may petition the United States Citizenship and Immigration Services for SIJS … . Specifically, the findings of fact must establish that: (1) the child is under 21 years of age; (2) the child is unmarried; (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by a State or juvenile court; (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis; and (5) it is not in the child’s best interests to be returned to his or her home country (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c]). With the declaration and special findings, the eligible child may then seek the consent of the Department of Homeland Security for SIJS (see 8 USC § 1101[a][27][J][iii]).  * * *

The requirement that a child be dependent upon the juvenile court or, alternatively, committed to the custody of an individual appointed by a State or juvenile court, ensures that the process is not employed inappropriately by children who have sufficient family support and stability to pursue permanent residency in the United States through other, albeit more protracted, procedures. In this case, there has been no need for intervention by the Family Court to ensure that the appellants were placed in a safe and appropriate custody, guardianship, or foster care situation, and the appellants have not been committed to the custody of any individual by any court….

While the appellants met all of the other requirements for SIJS, the Family Court correctly determined that the dependency requirement had not been satisfied. A child becomes dependent upon a juvenile court when the court accepts jurisdiction over the custody of that child, irrespective of whether the child has been placed in foster care or a guardianship situation… . The Family Court has only granted applications for SIJS special findings where dependency upon the court was established by way of guardianship, adoption, or custody.  Matter of Hei Ting C, 2013 NY Slip Op 05310, 2nd Dept 7-17-13

 

Attorney for Child Could File Abuse Petition After Abuse Petition Withdrawn by Department of Social Services

The Second Department determined that the attorney for the child had the power to file a child abuse petition after the Department of Social Services withdrew its petition:

Although the primary responsibility for initiating a child neglect or abuse proceeding “has been assigned by the Legislature to child protective agencies” … , Family Court Act § 1032 also permits such a proceeding to be initiated by “a person on the court’s direction.” “The requirement for court approval or authorization for proceedings prompted by those other than child protective agencies indicates the Legislature’s concern that judicial proceedings touching the family relationship should not be casually initiated and imposes upon the courts the obligation to exercise sound discretion before permitting such petitions to be filed” … . Contrary to the appellant’s contentions, the record demonstrates that the attorney for the child was in fact authorized by the Family Court to file a new abuse petition on behalf of Amber A., and that the Family Court’s decision to authorize him to do so was a provident exercise of its discretion… .  Matter of Amber A, 2013 NY Slip Op 05308. 2nd Dept 7-17-13

 

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Family Offense Must Be Established by Fair Preponderance

The Second Department determined the family offense of attempted assault in the second degree had not been “established by a fair preponderance of the evidence” in Family Court:

A family offense must be established by a fair preponderance of the evidence (see Family Court Act § 832;…). “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the credibility determinations of that court, which has the advantage of seeing and hearing the witnesses, are entitled to considerable deference on appeal” … .Here, a fair preponderance of the credible evidence did not support the Family Court’s determination that the appellant committed the family offense of attempted assault in the second degree (see Family Court Act §§ 812[1], 832; Penal Law §§ 110.00, 120.05[1]… .  Matter of Hubbard v Ponce DeLeon, 2013 NY slip Op 05211, 2nd Dept 7-10-13

 

No Constructive Emancipation or Abandonment

In affirming Family Court’s denial of father’s petition to modify child support, the Second Department explained the doctrine of constructive emancipation, noting that a child’s reluctance to see a parent is not abandonment:

The father claimed that he should no longer be required to pay support because the mother had alienated the child from him. Under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support…. However, a child’s reluctance to see a parent is not abandonment…. There is no evidence in the record that the child has refused all contact and visitation with the father.  Matter of Grucci v Villanti, 2013 NY Slip Op 05209, 2nd Dept 7-10-13

 

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Family Court Had Jurisdiction But New York Not a Convenient Forum

The Second Department determined Family Court’s finding that it did not have jurisdiction (over a visitation petition) under the Uniform Child Custody Jurisdiction and Enforcement Act was error.  But the Second Department went on to determine that New York was an inconvenient forum for the proceeding:

A New York Family Court has jurisdiction to make an initial custody determination if “(a) this state is 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]). ” Home state’ means 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]).

…”[T]he inquiry is not completed merely by a determination that a jurisdictional predicate exists in the forum State, for then the court must determine whether to exercise its jurisdiction” … . A court of this state which has jurisdiction under the UCCJEA may decline to exercise it if it finds, upon consideration of certain enumerated factors, that New York is an inconvenient forum and that a court of another state is a more appropriate forum (see Domestic Relations Law § 76-f[1];…). While the Family Court did not consider the enumerated factors, the record is sufficient to permit this Court to consider and evaluate those factors…

…[T]he “evidence regarding [the children’s] care, well-being, and personal relationships is more readily available” in Georgia… Under these circumstances, Georgia is the more appropriate and convenient forum … . Matter of Balde v Barry, 2013 NY slip Op 05204, 2nd Dept 7-10-13

 

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Respondents in Visitation Proceeding Have Right to Assigned Counsel

The Fourth Department reversed and remitted a visitation proceeding to Family Court because Family Court had relieved assigned counsel, noting that the Fourth Department had recently held respondents in visitation proceedings are entitled to assigned counsel:

Family Court erred in relieving his assigned counsel after the modification petition, which sought full legal custody of the three children at issue, was amended to seek only a modification of respondent’s visitation (amended petition).  While this appeal was pending, we held that respondents in visitation proceedings are entitled to assigned counsel… . Matter of Brown v Patterson, 768, 4th Dept 7-5-13

 

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