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SUPREME COURT DID NOT CITE ANY “EXTRAORDINARY CIRCUMSTANCES” TO JUSTIFY ITS SUA-SPONTE DISMISSAL OF THE COMPLAINT IN THIS DIVORCE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this divorce action, determined there was no demonstration of “extraordinary circumstances” to justify Supreme Court’s sua sponte dismissal of the complaint:

“A court’s power to dismiss a [complaint], sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court did not identify any extraordinary circumstances warranting sua sponte dismissal of the complaint … . The plaintiff moved, inter alia, to consolidate custody and family offense proceedings that were pending in the Family Court, Queens County, and the Family Court, Kings County, with the instant action. There was no motion to dismiss the complaint in its entirety or to change venue before the court … . Ivashchenko v Borukhov, 2024 NY Slip Op 02526, Second Dept 5-8-24

Practice Point: This decision illustrates the appellate-courts’ discomfort with sua sponte dismissals of complaints (dismissal in the absence of a motion requesting it).

 

MOTHER’S LEAVING THE CHILD WITH THE PETITIONERS, THE CHILD’S BROTHER AND SISTER-IN-LAW, FOR A LITTLE MORE THAN A MONTH DID NOT MEET THE “EXTRAORDINARY CIRCUMSTANCES” STANDARD FOR THE AWARD OF JOINT CUSTODY TO MOTHER AND PETITIONERS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the award of joint custody of the child shared by mother and the child’s brother and sister-in-law (petitioners). The extraordinary circumstances required to award custody to nonparents were not demonstrated. Mother had left the child with the petitioners for a little more than a month before seeking the child’s return:

… [T]he court’s determination to award petitioners joint custody of the child along with herself and the father lacks a sound and substantial basis in the record inasmuch as petitioners failed to establish the existence of extraordinary circumstances. ” ‘[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . “A finding of extraordinary circumstances is rare, and the circumstances must be such that they ‘drastically affect the welfare of the child’ ” … . Such circumstances are not established by a mere showing that the nonparent “could do a better job of raising the child” … . Where a nonparent fails to establish extraordinary circumstances, “the inquiry ends” … .

… We conclude that petitioners failed to meet their burden of establishing that the mother “relinquished her superior right to custody” … . … [T]he mother’s decision to leave the child with petitioners for a little over a month before seeking his return did not amount to the type of prolonged separation that would evidence the mother’s abandonment of the child or her intent to do so … . Matter of Adams v John, 2024 NY Slip Op 02404, Fourth Dept 5-3-24

Practice Point: Here the child’s brother and sister-in-law were awarded joint custody of the child with mother after mother left the child with the petitioners for a little more than a month. The “extraordinary circumstances” standard for the award of custody to nonparents was not met.

 

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TERMINATION OF FATHER’S PARENTAL RIGHTS AFFIRMED; TWO DISSENTERS ARGUED THERE WAS NO ADMISSIBLE PROOF FATHER FAILED TO PLAN FOR THE CHILDREN’S FUTURE FOR ONE FULL YEAR (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, affirmed the termination of father’s parental rights. The dissenters argued there was no admissible proof that father failed to plan for the children’s future for one full year:

From the dissent:

We agree with the majority that petitioner met its burden of establishing that respondent father failed to plan for the children’s future from April 2021—when the father began hearing voices but failed to disclose it—through December 2021. However, inasmuch as petitioner failed to meet its burden of establishing by clear and convincing evidence that the father failed to plan for the children’s future for one full year …, we respectfully dissent.

To that end, the only evidence of a failure to plan for the children’s future from December 2020 to April 2021 was petitioner’s exhibit 5, a medical record that referenced the father’s admission to continued use of synthetic marihuana. However, that exhibit was withdrawn by petitioner as not properly authenticated and was thereafter never entered into evidence or placed into the record. Inasmuch as the record lacks other admissible evidence that the father failed to plan for the children’s future from December 2020 to April 2021, Family Court’s improper reliance upon facts outside the record is not harmless … , and petitioner failed to meet its burden by clear and convincing evidence … . Therefore, we would reverse the order and dismiss the petition against the father. Matter of Tori-Lynn L. (Troy L.), 2024 NY Slip Op 02440, Fourth Dept 5-3-24

Practice Point: One element of the proof necessary to terminate parental rights is the parent’s failure to plan for the children’s future for one full year.

 

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PETITIONER DEMONSTRATED THE CHILD WAS NEVER HARMED AND SHE HAD MADE SERIOUS AND SUCCESSFUL EFFORTS AT REHABILITATION; RE: PETITIONER’S EMPLOYMENT IN THE CHILDCARE FIELD, RESPONDENT NYS OFFICE OF CHILDEN AND FAMILY SERVICES IS PRECLUDED FROM INFORMING ANY PROVIDER OR LICENSING AGENCY THAT PETITIONER IS THE SUBJECT OF A CHILD MALTREATMENT REPORT (FOURTH DEPT).

The Fourth Department, in an Article 78 proceeding transferred by Supreme Court, determined the respondent NYS Office of Children and Family Services should not have ruled that “petitioner’s acts of child maltreatment are relevant and reasonably related to employment in the childcare field.” The Fourth Department therefore directed that respondent “shall be precluded from informing a provider or licensing agency which makes an inquiry that petitioner is the subject of an indicated child maltreatment report.” No child had ever been harmed by petitioner and petitioner demonstrated serious and successful rehabilitative efforts.

… [T]he record establishes that petitioner had taken actions to show that she “[is] able to deal positively with [the] situation or problem that gave rise to the previous incident(s) of child . . . maltreatment” … . As petitioner contends, the ALJ [Administrative Law Judge] failed to consider the evidence of psychological rehabilitation showing that she could deal positively with the trauma she suffered as a result of the domestic violence inflicted upon her by the father, which precipitated the indicated report. Petitioner’s marriage and family therapist submitted a letter explaining that petitioner had suffered from post-traumatic stress disorder “as a result of the relationship” with the father, but that petitioner “ha[d] made an enormous amount of progress and ha[d] reached her treatment goals,” and “in no way presented as an unfit parent” during the course of her treatment. The psychologist who performed a comprehensive evaluation and testing of petitioner opined that, despite having been “aggressively abused” by the father, there was no indication that petitioner harbored “resentments toward others,” petitioner showed “no defensiveness or tendency to distort the facts of the situation,” and petitioner scored “unusually low” on the potential for abuse scale, which demonstrated that petitioner had “none of the characteristics, personal status or problems with the child or family members that would raise the question of abusive potential on her part.” Petitioner also had a “significantly elevated score on the scale indicating . . . the tendency to maintain emotional stability and to adequately deal with interpersonal exchanges.” Moreover, the ALJ ignored petitioner’s testimony about her improved ability to deal positively with emotionally challenging situations and the letters from other individuals attesting to petitioner’s ability to properly parent the child. The record therefore indisputably establishes that petitioner is able to deal positively with the situation or problem that gave rise to the indicated report. Matter of Hastings v New York State Off. of Children & Family Servs., 2024 NY Slip Op 02436, Fourth Dept 5-3-24

Practice Point: A person who has been found to have committed acts of child maltreatment can petition the NYS Office of Children and Family Services for a ruling precluding the agency from informing any childcare provider of licensing agency of the maltreatment, thereby clearing the way for that person’s employment in the childcare field.

 

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WHERE ALLEGATIONS IN A PETITION TO MODIFY CUSTODY ARE CONTROVERTED, THE PETITION SHOULD NOT BE RULED UPON WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing should have been held in this modification of parental access proceeding. Family Court granted father’s petition without a hearing, despite the parties’ controverted allegations:

“Although [a] parent seeking a change of custody is not automatically entitled to a hearing, custody determinations should [g]enerally be made only after a full and plenary hearing and inquiry” … . “‘This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child'” … . “Accordingly, [w]hen the allegations of fact in a petition to change custody are controverted, the court must, as a general rule, hold a full hearing” … .

Here, the Family Court erred in granting the father’s modification petition to the extent of awarding him certain parental access without a hearing and without inquiring into the best interests of the children, especially in light of the parties’ controverted allegations … . Matter of Valedon v Naqvi, 2024 NY Slip Op 02059, Second Dept 4-17-24

Practice Point: As a general rule, controverted allegations in a petition to modify custody require a hearing.

 

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ALTHOUGH ARTICLE 3 OF THE FAMILY COURT ACT PROHIBITS CONSIDERATION OF A NEW YORK JUVENILE DELINQUENCY ADJUDICATION IN A SORA RISK-LEVEL ASSESSEMENT, CONSIDERATION OF A NEW JERSEY JUVENILE DELINQUENCY ADJUDICATION IS NOT PROHIBITED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Brathwaite Nelson, determined that, although a New York juvenile delinquency adjudication under article 3 of the Family Court Act cannot be considered in a SORA risk-level determination, a New Jersey juvenile delinquency adjudication can be considered:

Although the express language in the Guidelines provides that a juvenile delinquency adjudication constitutes proof for the assessment of points under risk factors 8 and 9, in People v Campbell (98 AD3d 5), this Court held that a juvenile delinquency adjudication rendered under Family Court Act article 3 could not properly be considered in a SORA proceeding. * * *

… [T]his Court’s holding in Campbell does not preclude a SORA court from considering the defendant’s New Jersey adjudication. As discussed above, the prohibition in Campbell rested on the language of Family Court Act § 381.2 … . The Legislature, while protecting Family Court Act article 3 proceedings, has also identified the age of a sex offender at the time of the first sex offense to be a factor “indicative of high risk of repeat offense” to be considered under the Guidelines … , in addition to the nature of prior offenses … . While an adjudication or statements made to the court or an officer in a Family Court Act article 3 proceeding may not be used as proof at a SORA hearing, the People are not precluded from establishing the underlying conduct by other means … . The defendant’s juvenile delinquency adjudication was not rendered under New York’s Family Court Act article 3, and, thus, the provisions of the Family Court Act … do not apply to it. People v Hart, 2024 NY Slip Op 02071, Second Dept 4-17-24

Practice Point: A New York juvenile delinquency adjudication cannot be considered in a SORA risk-level assessment because of a prohibition in the Family Court Act. Because the Family Court Act does not apply to a New Jersey juvenile delinquency determination, and because New Jersey does not have a similar prohibition, the New Jersey adjudication can be considered in a New York SORA risk-level assessment.

 

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HERE FAMILY COURT HAD THE INHERENT POWER TO DETERMINE WHETHER RESPONDENT WAS THE CHILD’S FATHER; RESPONDENT WAS JUDICIALLY ESTOPPED FROM CONTESTING PATERNITY BASED ON HIS POSITION IN A PRIOR PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court had the power to determine whether father (Gunderson) is responsible for the support of the child and father was judicially estopped from contesting paternity because he was awarded parental access in a prior proceeding:

… [T]he Support Magistrate, sua sponte, dismissed the mother’s petition without prejudice on the ground that the Family Court lacked subject matter jurisdiction to enter an order of child support because the parties were never married and there was no acknowledgment of parentage or order of filiation. * * *

… [B]ecause the Family Court has jurisdiction to determine whether an individual parent is responsible for the support of a child (see Family Ct Act § 413[1][a]), in appropriate cases, it also has the inherent authority to ascertain whether a respondent is a child’s parent … .

Under the doctrine of judicial estoppel, “a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed” … . Here, Granderson successfully obtained an order awarding him parental access with the child based on his assertion that he was a parent to the child. Matter of Joseph v Granderson, 2024 NY Slip Op 01921, Second Dept 4-10-24

Practice Point: Here, based upon Family Court’s authority to determine whether a parent is responsible for the support of the child, Family Court had the inherent authority to determine whether respondent is the child’s father.

Practice Point: Here respondent sought and was awarded parental access in a prior proceeding. He was judicially estopped from contesting paternity in this proceeding.

 

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THE COURT MAY ORDER A PARENT TO SUBMIT TO COUNSELING OR TREATMENT AS PART OF A CUSTODY OR PARENTAL ACCESS ORDER; BUT THE COURT MAY NOT IMPOSE SUCH CONDITIONS ON SEEKING PARENTAL ACCESS IN THE FUTURE (SECOND DEPT). ​

The Second Department noted that a court may order a parent to submit to counseling or treatment as part of a custody or parental access order, but the court cannot not impose those same conditions upon seeking parental access in the future:

“A court deciding a custody proceeding may ‘direct a party to submit to counseling or treatment as a component of a [parental access] or custody order'” … . Here, the Family Court properly directed the father to submit to hair follicle, drug, and alcohol testing as a component of his parental access … . However, the court should not have made the father’s submission to such testing a condition to seeking future parental access … . Matter of Buskey v Alexis, 2024 NY Slip Op 01917, Second Dept 4-10-24

Practice Point: A court may impose treatment or counseling conditions in a parental access order, but cannot so condition the seeking of future parental access.

 

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BECAUSE FAMILY COURT HAD EXCLUSIVE AND CONTINUING JURISDICTION OVER THIS CUSTODY CASE, MOTHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN SUMMARILY DISMISSED BECAUSE FATHER AND CHILD RESIDE OUT-OF-STATE (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to modify custody should not have summarily dismissed because father and child were living out-of-state. Because New York has exclusive and continuing jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the court should have allowed mother to present evidence on any connections to New York:

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified at article 5-A of the Domestic Relations Law, a court of this state which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds, as is relevant here, that it should relinquish that jurisdiction because “neither the child” nor “the child and one parent” have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” … .

… [T]he initial custody determination was rendered in New York. … Family Court should not have summarily dismissed the mother’s petitions on the ground that the child was living with the father out of state, without considering whether the court had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1), and affording the mother an opportunity to present evidence as to that issue … . Matter of Brandon v Brady, 2024 NY Slip Op 01916, Second Dept 4-10-24

Practice Point: Where New York has exclusive and continuing jurisdiction over a custody matter pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, it is error to summarily dismiss a custody petition on the ground the child lives out-of-state. It must be determined whether there exist sufficient connections with New York to warrant hearing the case in New York.

 

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SERVICE OF THE ORDER APPEALED FROM BY EMAIL DOES NOT START THE TIME TO TAKE AN APPEAL; FATHER’S REQUEST FOR TELEPHONIC AND WRITTEN CONTACT WITH HIS DAUGHTER PROPERLY DENIED; FATHER WAS INCARCERATED FOR PREDATORY SEXUAL BEHAVIOR INVOLVING A CHILD ABOUT THE SAME AGE AS HIS DAUGHTER (THIRD DEPT). ​

The Third Department, affirming Family Court’s denial of father’s request for telephonic and written contact with his daughter, in a full-fledged opinion by Justice Egan, determined Family Court did not abuse its discretion. Father is incarcerated after pleading guilty to predatory sexual assault against a child, possessing a sexual performance by a child, promoting a sexual performance by a child and use of a child in a sexual performance. The victim of father’s crimes was about the same age as father’s daughter and was acquainted with father’s daughter. The Third Department noted that the time for perfecting father’s appeal never started to run because the notice of the entry of the order appealed from was sent to father by email, which is not an accepted method of service:

… “[A]s the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there is no indication that he was served by any of the methods authorized by the statute, we conclude that the time to take an appeal did not begin to run and that it cannot be said that the father’s appeal is untimely” … . * * *

Family Court observed that the father pleaded guilty to sex offenses relating to a victim who was about the same age as the child at the time of the hearing — and who was, we note, acquainted with the child — and the father’s testimony gave no reason to believe that he appreciated how his actions might have impacted the child. Family Court further credited the mother’s testimony that she had given the child all of the father’s letters after screening them for inappropriate content, and that the child had simply decided, without any interference from the mother, not to respond to them. The child was almost 13 years old at the time of the hearing and, as such, her apparent desire not to communicate with the father was entitled to some weight in assessing her best interests … . We are satisfied that, according deference to Family Court’s assessment of witness credibility, the foregoing constitutes a sound and substantial basis in the record for the determination that the presumption favoring visitation with a noncustodial parent had been rebutted and that the best interests of the child would be served by limiting contact with the father to written correspondence to which the child was not required to respond … . Matter of Robert M. v Barbara L., 2024 NY Slip Op 01847, Third Dept 4-4-24

Practice Point: Service of an order by email does not start the 30-day period for taking an appeal of the order.

Practice Point: Family Court did not abuse its discretion by denying the incarcerated father’s request for telephonic and written contact with his daughter. Father had pled guilty to predatory sexual behavior involving a victim about the same age as his daughter and with whom his daughter was acquainted.

 

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