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Child’s Out-of Court Statements Sufficiently Corroborated

In affirming Family Court, the Second Department determined the child’s out-of-court statements were sufficiently corroborated:

At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act § 1046[b][i]). A child’s out-of-court statements may form the basis for a finding of abuse or neglect if they are sufficiently corroborated by other evidence tending to support their reliability…. The Family Court has considerable discretion in deciding whether a child’s out-of-court statements describing incidents of abuse or neglect have been reliably corroborated ….  Contrary to the appellant’s contention, the Family Court’s determination that he sexually abused the subject child is supported by a preponderance of the evidence. The subject child’s out-of-court statement regarding the acts of sexual abuse upon her was corroborated by an expert in clinical and forensic psychology, with a specialization in child abuse, who evaluated the subject child and concluded that she exhibited behavior indicative of sexual abuse… .  Matter of Emani W, 2013 NY Slip Op 04346, 2nd Dept, 6-12-13

 

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Doctrine of Collateral Estoppel Re: Related Criminal Convictions Properly Applied

The Second Department determined Family Court properly applied the doctrine of collateral estoppel in an abuse proceeding based upon father’s criminal convictions:

The Family Court properly granted that branch of the motion of the ACS which was for summary judgment on the issue of the father’s derivative abuse. The ACS met its prima facie burden of showing that the doctrine of collateral estoppel is applicable…. “A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct”…. The father’s convictions of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and endangering the welfare of a child were based upon the same acts alleged to constitute sexual abuse as set forth in Family Court Act article 10 petitions (see Family Ct Act § 1012[e][iii]).  Matter of Angelica M, 2013 NY Slip Op 04339, 2nd Dept, 6-12-13

 

Evidence of Mother’s Mental Illness, Without More, Did Not Justify Neglect Finding

The Second Department determined mother’s mental illness alone did not support a finding of neglect:

…[T]he Administration for Children’s Services (hereinafter the ACS), adduced evidence at the fact-finding hearing which established that the mother suffered from bipolar disorder at the time each of the two subject children were born. “A finding of neglect may be predicated upon proof that a child’s physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of a parent’s mental illness”…. However, “proof of mental illness alone will not support a finding of neglect”; the evidence “must establish a causal connection between the parent’s condition, and actual or potential harm to the children”…. Here, the ACS failed to establish, by a preponderance of the evidence, the existence of a causal connection between the mother’s bipolar disorder and actual or potential harm to the subject children … .   Matter of Alexis SG…, 2013 NY Slip Op 04336, 2nd Dept, 6-12-13

 

Attempt to Deny Visitation to Incarcerated Mother Denied

In affirming Family Court’s denial of grandmother’s (the child’s primary physical custodian’s) petition to suspend the child’s visitation with mother, who is incarcerated, the Fourth Department wrote:

Even assuming, arguendo, that the grandmother established “ ‘a change in circumstances sufficient to warrant an inquiry into whether the best interests of the [child] warranted a change in custody’ ”…, we conclude that, contrary to the grandmother’s contention, visitation with the mother at the correctional facility is in the child’s best interests.

There is a presumption that visitation with the noncustodial parent is in thechild’s best interests…, and a “parent’s incarceration, by itself, does not vitiate” that presumption….“Unless there is a compelling reason or substantial evidence that visitation with an incarcerated parent is detrimental to a child’s welfare, such visitation should not be” suspended ….    We conclude that the grandmother failed to establish by a preponderance of the evidence that visitation with the mother would be detrimental to the child, and thus she did not overcome the presumption that visitation with the mother is in the child’s best interests… .  Matter of Cormier v Clarke…, 409, 4th Dept, 6-7-13

 

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Failure to Contest Referral of Support-Arrearages to Tax Department Precluded Further Court Action

The Third Department determined plaintiff’s failure to administratively challenge the referral of his support-arrearages case to the Department of Taxation and Finance and the subsequent issuance of a tax warrant (pursuant to provisions of the Social Services Law) barred his action against the Department in Supreme Court.  Plaintiff was seeking a declaratory judgment and injunctive relief after the Department seized his vehicles to satisfy the judgment for support arrearages.  Koziol v State of New York…, 514767, 3rd Dept, 6-6-13

 

Wife Deemed Not Entitled to Maintenance

In reversing Supreme Court and determining the wife was not entitled to maintenance, the Third Department wrote:

While “[t]he amount and duration of [a maintenance] award are addressed to the sound  discretion of the trial court” (…see Domestic  Relations Law  §  236  [B] [6] [a]), “this Court’s authority is as broad as Supreme  Court’s in resolving questions of maintenance”….  Accordingly, we  find that under  the circumstances of this case – where  the marriage was not of particularly long duration, the parties had no  children, the wife has stable employment  that provides her a significant salary, the  wife  is not  losing  retirement  or  health benefits and  the parties’ predivorce standard of living was falsely inflated by  overextended lines of credit – the statutory factors do  not support an  award  of maintenance  (see Domestic Relations Law  §  236  [B] [6] [a] [1]-[20]…).  McCaffrey v McCaffrey, 515718, 3rd Dept, 6-6-13

 

Appreciation of Value of Marital Residence Should Have Been Reduced by Cost of Improvements

The Second Department determined Supreme Court should have reduced the distributive award based upon the appreciation in value of the marital residence during the marriage by the equitable share of the marital debt incurred in making improvements to the residence:

While the marital residence was the plaintiff’s separate property, the Supreme Court directed the plaintiff to pay the defendant the sum of $102,500 as a distributive award based on the appreciation in value of the marital residence that was attributable to the efforts of both parties in physically improving the property during the marriage (see Domestic Relations Law § 236[B][1][d][3]…). Although the defendant’s counsel noted at trial that the defendant’s distributive award based on the appreciation of the marital residence should be reduced by the defendant’s equitable share of the marital debt incurred in financing the improvements to the residence, the Supreme Court improperly failed to do so… . Szewczuk v Szewczuk, 2013 NY Slip Op 03987, 2nd Dept, 6-5-13

 

“Economic Necessity” Justified Relocation

The Second Department determined the mother’s relocation was in the best interests of the child based upon “economic necessity:”

“[E]conomic necessity . . . may present a particularly persuasive ground for permitting the proposed move”… .. Here, the mother demonstrated that she was not able to meet her living expenses while residing in Queens, and the father conceded that he did not regularly pay his share of the childcare expenses. The mother also demonstrated that, if she were permitted to relocate, her mother would assist with the childcare and that she and the child would be able to reside, at a reduced rent, in her mother’s home, located only blocks from where the child would attend school. While the father’s loss of weekly weekday contact with the child is neither trivial nor insignificant…, the relocation is not a great distance and the visitation schedule devised by the court in this case allows for the continuation of a meaningful relationship between the father and the child… . Matter of Sahagun v Alix, 2013 NY Slip Op 04009, 2nd Dept, 6-5-13

 

Family Court Award of Sole Custody to Mother Reversed, Sole Custody Awarded to Father

The Second Department reversed Family Court, which awarded sole physical custody to the mother, and awarded sole physical custody to the father:

Here, the Family Court’s award of sole physical custody to the mother lacked a sound and substantial basis in the record. In awarding the mother custody, the Family Court gave undue weight to its finding that the mother would be more likely than the father to foster a meaningful relationship between the subject children and the noncustodial parent. Furthermore, the Family Court failed to give sufficient weight to the forensic mental health evaluation, which indicated that the mother was not suitable for physical custody of the children and to its own finding that it was in the children’s best interests for them to remain away from Sherlock [the mother’s boyfriend] at all times. Under the totality of the circumstances, including the founded concerns with respect to Sherlock and the attendant risk his relationship with the mother posed to the safety and well-being of the subject children, the best interests of the children would be served by awarding the father sole physical custody ….Matter of James AS v Cassandra AS, 2013 NY Slip Op 03995, 2nd Dept, 6-5-13

 

No Basis in Record for Denying Noncustodial Parent Visitation

After affirming a derivative neglect finding against the mother based upon excessive corporal punishment of a sibling, the Second Department determined Family Court should not have denied her visitation:

Absent extraordinary circumstances, such as where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges… . Here, the Family Court improvidently exercised its discretion in failing to provide the mother with any visitation, either unsupervised or supervised, with Keith W., since there were no extraordinary circumstances justifying the denial of the mother’s right to reasonable visitation… .  Matter of Jacob P, 2013 NY Slip Op 04007, 2nd Dept, 6-5-13

 

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