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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

 

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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