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Denial of Request to Take Child’s Testimony Outside Parents’ Presence Was Abuse of Discretion

The Third Department noted that it was an abuse of discretion to deny the request for a Lincoln hearing in a custody proceeding (allowing a child to testify outside the parties’ presence):

Although not an issue directly raised on appeal, the attorney for the child and the father both requested that Family Court hold a Lincoln hearing … rather than require the child to testify in open court.  Unfortunately, this request was denied and, after the mother refused to consent to the child testifying outside of the parties’ presence, the child had to testify under oath in front of both parents. While we recognize that Family Court has the discretion to decide whether a Lincoln hearing is appropriate…, it was clearly an abuse of discretion for the court to put the child in this awkward position… . We again emphasize that “‘a child . . . should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them'” when explaining the reasons for his or her preference…. Given the circumstances of this case and the fact that – at her age [14]– her preference would  be  entitled to great weight, the record indicates that a Lincoln hearing would have limited the risk of harm and “would have been far more informative and worthwhile than . . . an examination of the child under oath in open court”… . Matter of Casarotti v Casarotti, 515270, 3rd Dept 6-27-13

 

 

Default Judgment against Mother for Failure to Appear Reversed

In vacating a default judgment entered against the mother who failed to appear in a custody and visitation proceeding, the Third Department noted that, in her motion to vacate, the mother offered a reasonable excuse for not appearing (car broke down), and the best interests of the child would be served by a plenary hearing:

“We must remain vigilant that the ultimate issue here is what is in [the children’s] best interest[s], not whether [the mother] should be punished for her actions”….  Here, the lack of a full hearing to determine the best interests of the children, a determination in which Family Court “is bound to assess numerous  factors,” constitutes a meritorious defense …. Accordingly, the default judgment entered against the mother must be vacated, and the matter remitted for further proceedings… .  Matter of Brown v Eley, 514981, 3rd Dept 6-27-13

 

Family Court’s Finding Father in Default for Nonappearance Reversed

In reversing Family Court’s finding the father in default for nonappearance in a custody and visitation modification proceeding, the Third Department noted that the father’s counsel did not tell the father his appearance was required and the court made no attempt to reach the father by phone:

The nonappearance of a party does not necessarily result in a default, “particularly where counsel appears upon the absent party’s behalf and offers an  explanation for his or her failure to attend”.   The father’s counsel stated that, while the father had elected not  to appear, counsel had  not  informed  him  that his appearance  was  necessary.  Family Court did not challenge the accuracy of that representation and, moreover, made no effort to reach the father telephonically or by other means.  Under these circumstances, Family Court erred in holding that the father’s nonappearance constituted a default …  Matter of Freedman, 514882, 414883, 3rd Dept 6-27-13

 

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Family Court Could Not Countermand County Court’s Order of Protection

The Third Department noted that Family Court can not countermand County Court’s order of protection stemming from the father’s assault of the mother.  Therefore, Family Court could not require the mother to facilitate the reading of the father’s letters to the child:

Family Court does not have jurisdiction to countermand the provisions  of a  criminal court  order  of protection ….  Considering that “an order of protection issued incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims”…, the criminal court order of protection would have to be modified, if deemed appropriate by County Court, before Family Court would be authorized to require the mother to accept, read or facilitate the reading of the father’s communications to the child.  Matter of Samantha WW v Gerald XX, 513853, 3rd Dept 6-27-13

 

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Events Before Last Custody Order Could Be Considered re: “Best Interests of Child” Even Though Only Post-Custody-Order Events Can Be Considered re: “Change of Circumstances”

In upholding Family Court’s custody ruling, the Third Department noted that events which occurred before the last custody order could be considered with respect to the best interests of the child:”

Family Court did not err in considering evidence of events that occurred before the entry of the prior custody order. Although  the inquiry as to whether  a substantial change  in circumstances has occurred should be limited to occurrences since the date of the prior custody order…, a best interests inquiry is broader and may include other facts that give the court a view of the totality of the circumstances and family dynamics, including proof that relates to either party’s fitness as a parent….  As less weight  is afforded to a stipulated order, admission of evidence concerning previous behavior or events is especially proper where no prior plenary hearing has been held and the prior order was issued on consent…. Here, Family Court did not abuse  its broad  discretion in determining the scope of the proof….  Matter of  Smith…, 513811, 3rd Dept 6-27-13

 

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Derivative Severe Abuse Finding Reversed

In reversing Family Court’s finding of derivative severe abuse, the Third Department explained the proof requirements as follows:

…[W]e agree with respondent that Family Court erred in concluding  that Nicholas and  Carolina were derivatively severely abused by respondent. As the Court of Appeals recently clarified in Matter of Dashawn W. (21 NY3d 36 [2013]), a determination of severe abuse requires that the court find, by clear and convincing evidence, as relevant here, not only that “the child [is] an  abused  child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved  indifference to human  life, which  result in serious physical injury to the child as defined in [Penal Law  § 10.00 (10)]” (Social Services Law  §  384-b  [8] [a] [i]), but  also that petitioner “made  diligent efforts to encourage  and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and  such  efforts have been unsuccessful and are unlikely to be successful in the foreseeable future” (Social Services Law  §  384-b  [8] [a] [iv]). Here, inasmuch as Family Court did not make either of the foregoing determinations and the evidence in the record does not enable us to do so, a finding of severe abuse against respondent cannot be sustained.  Matter of Nicholas S…, 511568, 3rd Dept 6-27-13

 

Criteria for Derivative Neglect Finding Explained (Evidence Insufficient)

The Second Department, in reversing Family Court’s finding, explained the criteria for a finding of derivative neglect:

…[A] finding of sexual abuse of one child does not, by itself, establish that other children in the household have been derivatively abused or neglected …. The focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood …. Here, a derivative finding of neglect as to the child Brandon J. was warranted since the abuse was perpetrated while he was in the home…. However, given the limited duration and nature of the sexual abuse, as well as the remoteness in time between when Monica C. M. was abused and when Joshua A., the appellant’s biological son, was born more than four years later, there was insufficient evidence to support the Family Court’s determination that Arnold A. derivatively neglected Joshua A…..  Matter of Monica CM, 2013 NY Slip Op 04808, 2nd Dept 6-26-13

 

Standing Requirements for Grandparent Seeking Visitation Explained

The Second Department explained the standing requirements for a grandparent seeking visitation with a grandchild:

In a grandparent visitation proceeding, “the burden of establishing standing lies with the grandparent and it is conferred by the court, in its discretion, only after it has examined all the relevant facts'”…. In determining whether grandparents have standing or a right to be heard on a petition for visitation with a grandchild, the essential components to the inquiry are the “nature and extent of the grandparent-grandchild relationship” … and “the nature and basis of the parents’ objection to visitation” …. “The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances”…. A hearing to determine the issue of standing is not necessary where the submitted papers do not raise a triable issue of fact… .  Matter of Bender v Cendali, 2013 NY Slip Op 04796, 2nd Dept 6-26-13

 

Criteria for Changing Custody Arrangement Entered Into by Agreement

In reversing Family Court’s denial of a modification of a custody arrangement, the Second Department explained the criteria for changing a custody arrangement entered into by agreement:

Where parents enter into an agreement concerning custody, that agreement will not be modified unless there is a sufficient change in circumstances since the time of when the agreement was entered into, and unless modification of the custody arrangement is in the best interests of the child…. “In order to determine whether modification of a custody arrangement is in the best interests of the child, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child’s desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the child, (7) the parent’s financial status, (8) his or her ability to provide for the child’s emotional and intellectual development, and (9) the willingness of the parent to assure meaningful contact between the child and the other parent”….  * * * Here, considering, inter alia, the acrimony between the parties, the Supreme Court’s determination to award legal custody to the father and residential custody to the mother lacked a sound and substantial basis in the record …. McAvoy v Hannigan, 2013 NY Slip Op 04785, 2nd Dept 6-26-13

 

Neglect Proceeding “Adjourned in Contemplation of Dismissal” Properly Considered and Findings of Forensic Psychologist Properly Ignored in Modification of Custody Proceeding

In affirming Family Court’s modification of custody, the Second Department noted that Family Court properly considered a neglect proceeding that was adjourned in contemplation of dismissal (not a determination on the merits) and Family Court was not required to accept the recommendations of the court-appointed forensic psychologist.  Matter of Selliah v Penamente, 2013 NY Slip Op 04815, 2nd Dept 6-26-13

 

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