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Denial of Visitation With Incarcerated Father Upheld

The Fourth Department affirmed Family Court’s denial of an incarcerated father’s petition for visitation with his children:

Although we recognize that the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated…, we conclude that respondents rebutted the presumption by establishing by a preponderance of the evidence that visitation with petitioner would be harmful to the children …. A parent’s failure to seek visitation with a child for a prolonged period of time is a relevant factor when determining whether visitation is warranted…, and, here, petitioner has never met the daughter or the son.  In fact, before commencing these proceedings, petitioner did not seek visitation with either child.  Thus, petitioner is “essentially a stranger to the child[ren]”….  Matter of Brown v Terwilliger…, 576, 4th Dept 7-5-13

 

Grandparents Had Standing to Seek Visitation

The Fourth Department noted that the grandparents had standing to seek visitation with their grandchildren, in addition to mother’s and father’s visitation:

…[W]e conclude that the grandparents established “a prima facie case of standing to seek visitation with the subject child[ren]” inasmuch as they demonstrated “the existence of a sufficient relationship with the child[ren] to warrant the intervention of equity”….  The record establishes that the grandparents regularly visited with the children before the mother ceased permitting such visits. In addition, the grandmother provided full-time daycare for the children before they reached school-age, took the children to pre- kindergarten, and engaged in activities with them after school, and the grandfather attended the children’s school activities. Matter of Dubiel v Schaefer, 672, 4th Dept 7-5-13

 

Career-Related Relocations Did Not Result in Change of Domicile

In affirming Supreme Court’s finding that the plaintiff in a divorce action met the durational residency requirements of Domestic Relations Law section 230, in spite of several career-related relocations, the Third Department wrote:

Given the absence of any proof that plaintiff intended to abandon her existing New York domicile and adopt any of the temporary locations as her new  permanent  home,  neither the fact that the parties – of necessity or convenience – established homes  and  all of the accouterments of family and  community  life in each location where  defendant’s career took the family nor that they generally paid income  taxes as residents of the respective locations demonstrates a change of domicile. Black v Black, 516094, 3rd Dept 7-3-13

 

Neglect Based on Failure to Provide Child with Cleft Palate Proper Nutrition

The Third Department affirmed Family Court’s finding of neglect based upon the father’s failure to ensure that the child (born with a cleft palate) was receiving adequate nutrition and medical care.

Here, the record establishes that the father attended many of the  child’s pediatric appointments,  as  well as  the  evaluation conducted by the feeding and swallowing specialist, during the course of which medical professionals repeatedly explained that the child’s cleft palate made  it difficult for her to feed, stressed the importance of ensuring that the child was fed consistently and gained weight at a steady rate and offered instruction and specific recommendations for different feeding techniques. Matter of Mary YY, 514692, 3rd Dept 7-3-13

 

Court Can Not Order Treatment as Condition of Future Visitation—Okay to Order Treatment as Component of Supervised Visitation

The Second Department noted that Family Court should not have ordered a parent to undergo treatment as a condition of future visitation.  Rather treatment should have been ordered as a component of supervised visitation:

…”[A] court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation”…. Thus, the Family Court should have directed the mother to enroll in an assisted outpatient treatment program as a component of supervised visitation. Matter of Torres v Ojeda, 2013 NY Slip Op 05091, 2nd Dept 7-3-13

 

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Consent Order Not Appealable; Open Court Stipulation Valid

The Second Department noted that an order made on consent is not appealable and affirmed Family Court’s determination that a stipulation entered into in open court was valid:

Stipulations of settlement are favored by the courts and a stipulation made on the record in open court will not be set aside absent a showing that it was the result of fraud, overreaching, mistake, or duress”…. Here, the Family Court conducted a proper allocution of the mother, determining that she understood the terms of the stipulation, that she had sufficient time to consult with her attorney, and that she consented to the terms of the stipulation, and thus properly determined that she voluntarily and knowingly accepted the terms of the stipulation…. The mother’s contentions in support of her motion that she felt “forced into settling” and “misle[]d” by her attorney, and that she “did not fully understand what [she] was agreeing to” are insufficient to establish a claim of mistake or duress so as to warrant setting aside the stipulation of settlement… . Matter of Strang v Rathbone, 2013 NY Slip Op 05088, 2nd Dept 7-3-18

 

 

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Factual Question About Whether Family Court Had Jurisdiction Over Visitation Modification Where Supreme Court Originally Ordered Visitation

In remitting the matter to Family Court, the Second Department determined Family Court should have examined the evidence to determine whether it had jurisdiction over a petition to modify visitation where the initial visitation determination was part of a divorce action in Supreme Court:

The Family Court erred in declining to sign the order to show cause accompanying the father’s petition to modify visitation …. Since the initial visitation determination in this matter was made as part of a stipulation of settlement entered into during the parties’ divorce proceedings before the Supreme Court, it was error for the Family Court to summarily decline to sign the order to show cause on jurisdictional grounds. Instead, the Family Court should have signed the order to show cause and then directed the parties to submit evidence on the issue of whether the Family Court retained exclusive, continuing jurisdiction over the visitation issues…. Matter of Ramirez v Gunder, 2013 NY Slip Op 05086, 2nd Dept 7-3-13

 

Criteria for Allowing Parent Relocation

In affirming Family Court’s allowing a parent’s relocation, the Second Department explained the criteria:

A parent seeking to relocate bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests …. In determining whether relocation is appropriate, the court must consider a number of factors, including the children’s relationship with each parent, the effect of the move on contact with the noncustodial parent, the degree to which the lives of the custodial parent and the child may be enhanced economically, emotionally, and educationally by the move, and each parent’s motives for seeking or opposing the move …. Inasmuch as “[t]he weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved” …, the Family Court’s credibility determinations are entitled to deference and its decision will be upheld if supported by a sound and substantial basis in the record… . Matter of Pietrafesa v Pietrafesa, 2013 NY Slip Op 05082, 2nd Dept 7-3-13

 

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Family Court committed reversible error by depriving father of his right to self-representation

In determining Family Court committed reversible error by depriving father of his right to self-representation, the Second Department wrote:

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had a right to be represented by counsel (see Family Ct Act § 262[a][iii];…). A party, however, may waive the right to counsel and opt for self-representation… .. Before permitting a party to proceed pro se, the court must determine that the party’s decision to do so is made knowingly, intelligently, and voluntarily …, by conducting a “searching inquiry” of that party…. Where a respondent has made a knowing, intelligent, and voluntary choice to represent himself or herself, “forcing a lawyer upon [him or her] is contrary to his [or her] basic right to defend himself [or herself]” … .  Matter of Massey v Van Wyen, 2013 NY Slip Op 05078, 2nd Dept 7-3-13

 

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Not Enough Evidence Before Family Court to Make Custody Determination

In remitting the matter to Family Court for a hearing in a custody proceeding with controverted allegations, the Second Department noted that, although a hearing is not always required, there was not enough evidence before the court for an informed determination in this case:

” [A]s a general rule, it is error as a matter of law to make an order respecting custody based upon controverted allegations without the benefit of a full hearing'”…. ” Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed'”…. However, ” it is not necessary to conduct such a hearing where the court already possesses sufficient relevant information to render an informed determination in the child’s best interest'” … .Under the circumstances of this case, the Family Court lacked sufficient information to render an informed determination as to the best interests of the subject children … . Matter of Labella v Murray, 2013 NY Slip Op 05076, 2nd Dept 7-3-13

 

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