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Father Estopped from Denying Paternity—Best Interests of Child Prevail

In upholding Family Court’s determination the father was estopped from denying paternity, in spite of his executing the acknowledgment based upon a mistake of fact, the Second Department explained the relevant legal principles:

A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act § 516-a[b][ii]). If the petitioner meets this burden, the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child’s best interests, from challenging paternity…. If the court concludes that estoppel is not warranted, the court is required to order genetic marker tests or DNA tests for the determination of paternity, and to vacate the acknowledgment of paternity in the event that the individual who executed the document is not the child’s father (see Family Ct Act § 516-a[b][ii];…). * * *

The purpose of equitable estoppel “is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position” …. Thus, “a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity,” in light of the child’s justifiable reliance upon such representations, and the resulting harm that his denial of paternity would engender…. “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship” …. In all cases, “the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the child” … . Matter of Angelo AR v Tenisha NW, 2013 NY Slip Op 05084, 2nd Dept 7-3-13

 

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Detention and Frisk of Juvenile Supported by Reasonable Suspicion

The First Department determined the following scenario provided reasonable suspicion sufficient to justify the detention and frisk of the juvenile:

A police officer testified that she was investigating an unruly crowd when she observed appellant walking towards her with his arm under his shirt, clutching an object held at his waist. Based on the rigidity of his body and how tightly he held the object, she believed it to be a weapon. As he passed by, she heard him say that he was “going to get him.” When she approached with her shield visible around her neck, appellant moved towards her, whereupon she grabbed his hand and felt the handle of a knife. During a brief struggle, the knife fell to the ground. Appellant was placed under arrest and the knife, which had a six-inch blade, was recovered.  Matter of Daquan B, 2013 NY Slip Op 04974 1st Dept 7-2-13

 

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Default Finding Should Not Have Been Made Where Attorney Appeared and Asked for Adjournment

In reversing the order of Family Court, the Fourth Department determined the Support Magistrate should not have ruled respondent had defaulted (respondent’s attorney appeared and requested an adjournment) and the colloquy between petitioner and the Support Magistrate was not a sufficient basis for a factual finding respondent had willfully violated a support order.  Family Court, therefore, should not have confirmed the Support Magistrate’s order.  Matter of Manning v Sobotka, 739, 4th Dept 6-28-13

 

Child Support Awarded to Wife Even though Husband Awarded Sole Custody; Residency Shared Equally/Husband Has Much Higher Income than Wife

In a full-fledged opinion by Justice Lindley, the Fourth Department determined child support should have been awarded to the wife (defendant), even though the husband had sole legal custody, because the residency of the children was shared equally and the wife’s income was less than the husband’s:

…[T]he court erred in awarding child support to plaintiff and that the court instead should have awarded child support to her. It is well settled that in shared residency arrangements, where neither parent has the children for a majority of the time, the party with the higher income is deemed to be the noncustodial parent for purposes of child support….  Here, as noted, the residency schedule affords the parties equal time with the children, and thus neither party has the children for the majority of the time. Inasmuch as plaintiff’s income exceeds that of defendant — at the time of trial, plaintiff earned $134,924.48 annually, while the JHO imputed income of $25,000 to defendant, whose actual earnings were $14,109.53— plaintiff is the “noncustodial” parent and, as such, he must pay child support to defendant.

It is true, as plaintiff points out, that [the cited cases] involve awards of joint legal custody, whereas he was awarded sole legal custody; that fact, however, should not affect the child support determination.  Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children, and, here, plaintiff spends no more time with the children than does defendant.  We note, moreover, that there is already a significant disparity in the parties’ incomes, and an award of child support to plaintiff would only widen that gulf.  In our view, the children’s standard of living should not vary so drastically from one parent’s house to the other.

Thus, under the circumstances of this case — where plaintiff has sole legal custody, but the residency schedule affords the parents equal time with the children — an award of child support to defendant will best “assure that [the] children will realize the maximum benefit of their parents’ resources and continue, as near as possible, their preseparation standard of living in each household” … .  Leonard v Leonard, 402, 4th Dept 6-28-13 

 

Absence of Complete Financial Disclosure Did Not Preclude Family Court from Making “Change-of-Circumstances” Determination

The Third Department affirmed Family Court’s modification of the father’s support obligation in the absence of complete financial disclosure because reliable financial evidence was in the record:

Although Family Court was entitled to deny the father’s requested relief based upon  his failure to comply with Family Ct Act § 424–a, this Court has approved orders of support in the absence of complete financial disclosure where reliable evidence otherwise has appeared on  the face of the record…. Here,  the father’s sworn statement of net worth and testimony, the latter of which was subject to examination by the Support Magistrate and cross-examination by the mother, was sufficient to demonstrate the requisite change in circumstances.  Matter of Mata v Nebesnik, 516104, 3rd Dept 6-27-13

 

Family Court Cannot Review Support Magistrate’s Order in Absence of Specific Objection

In reversing Family Court, the Third Department explained that Family Court does not have the authority to review those portions of a Support Magistrate’s order to which no specific objection his been made:

It is well established that “an order from a Support Magistrate is final and  Family Court’s review under Family Ct Act § 439 (e) is tantamount to appellate review and requires  specific  objections  for  issues  to  be  preserved”  ….  Family Court therefore lacked the authority to review the  order  dismissing  the  mother’s  first modification  petition,  to which no  objections had  been  filed… .  Matter of Hubbard v Barber. 515420, 3rd Dept 6-27-13

 

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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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