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Wife’s Stipulation Waiving Claim to Benefits Valid Even though Law Unclear at Time of Stipulation and Benefits Later Determined by Court of Appeals to Be Marital Property

The Second Department determined that plaintiff-wife’s stipulation that variable supplement fund (VSF) benefits were not marital property should be upheld, even though the law was unclear at the time of the stipulation and the Court of Appeals subsequently determined the benefits were marital property:

The Referee was correct in noting that, at the time of the parties’ stipulation of settlement, the law on the issue of whether VSF benefits were subject to equitable distribution was unclear. The law was later clarified when the Court of Appeals held that VSF benefits were marital property subject to equitable distribution …. However, the fact that the plaintiff did not have definitive guidance on the issue of whether VSF benefits were subject to equitable distribution is not a sufficient basis upon which she may avoid the effects of her otherwise knowing and voluntary waiver. Thus, it was error to permit the defendant to avoid the consequences of her waiver of any interest in the VSF. Lamassa v Lamassa, 2013 NY Slip Op 03639, 2nd Dept, 5-22-13

 

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Children’s Hearsay Alleging Abuse by Father Was Not Corroborated; Change in Custody Should Not Have Been Granted

In reversing Family Court’s grant of the mother’s petition to modify a prior order of custody, the Third Department determined the children’s hearsay statements alleging abuse by the father was not corroborated, and therefore could not form the basis of a modification of custody:

Inasmuch as Family Ct Act § 1046 (a) (vi) is applicable to custody proceedings based upon allegations of abuse, the children’s out-of-court statements are excepted from the hearsay rule, but must be corroborated …. *  *  * Because the  children’s out-of-court statements were not corroborated, Family Court’s finding of a change in circumstances lacks a sound and substantial basis in the record.  Matter of Zukowski v Zukowski, 514074, 3rd Dept, 5-16-13

 

Sufficient Grounds for Custody Hearing Raised​

The Second Department determined Supreme Court erred when it denied plaintiff’s motion for a change in custody/visitation without holding a hearing.  The plaintiff had alleged, among other things, the defendant operated a vehicle in an impaired state, posing a danger to the children:

Here, the plaintiff made the necessary showing entitling him to a hearing regarding those branches of his motion which were to modify the Stipulation so as to award him sole legal custody and suspend the defendant’s visitation with the children, unless supervised …. Furthermore, the record does not demonstrate that the Supreme Court possessed adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary …. Accordingly, the Supreme Court erred in denying those branches of the plaintiff’s motion which sought a modification of the existing custody arrangement, without first conducting a full evidentiary hearing to ascertain the children’s best interests…. Nusbaum v Nusbaum, 2013 NY Slip Op 03307, 2nd Dept, 5-8-13

 

Burden Is On Parent to Demonstrate Exception to Statutory Relief from Making Reasonable Efforts to Reunite

The Second Department explained how the exception to Family Ct Act 1039-b[b], relating to making reasonable efforts to reunite parent and child, works. Once an enumerated condition which eliminates the need to make reasonable efforts to reunite is demonstrated, the burden switches to the parent to show that the exception should be applied:

Here …ACS [Administration for Children’s Services] established that the mother’s parental rights with respect to a sibling of the subject child had been terminated “involuntarily” …. In support of its motion, ACS submitted the judgments terminating the mother’s parental rights with respect to the child’s two elder siblings …. In opposition to ACS’s motion, the mother failed to prove that “reasonable efforts” [to reunite] should nonetheless still be required under the exception provided for in Family Court Act § 1039-b(b). We reject the mother’s contention that the statute places the burden on the social services official to establish the inapplicability of the exception, rather than on the parent to establish its applicability. …Given the text of the statute, as well as its structure, which make the exception applicable to all six enumerated circumstances, some of which involve egregious conduct by the parent, the only reasonable interpretation is that once the social services official establishes the existence of an enumerated circumstance, the burden shifts to the parent to establish the applicability of the exception. Matter of Skyler, 2013 NY Slip Op 03325, 2nd Dept, 5-8-13

 

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Failure to Pay Pension Benefits to Wife Pursuant to Divorce Was an Action which Accrued Anew Each Time a Payment Was Missed for Statute of Limitations Purposes—Plaintiff Could Sue Only for Missed Payments Going Back Six Years from When Payments Began

Pursuant to a divorce, plaintiff was entitled to a share of her husband’s pension benefits starting in 1991.  Plaintiff did not start receiving the payments until 2005.  She did not bring an action on the unpaid benefits between 1991 and 2005 until 2010.  The Fourth Department determined that a cause of action for the unpaid benefits accrued anew when each payment was missed.  Because the statute of limitations is six years, the plaintiff could sue only for the unpaid benefits which accrued during the six years prior to when her action was started in 2010.  Bielecki v Bielecki, CA 12-01393, 264, 4th Dept, 5-3-13

 

Sole Custody to Mother Appropriate Because Voluntary Joint Custody No Longer Working

In affirming the grant of sole custody to the mother (in the face of a voluntary agreement of joint custody) because the parties’ relationship had deteriorated, the Third Department wrote:

Initially, “[w]here a voluntary agreement of joint custody is entered into, it will not  be  set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the [child]…, and “an order entered on consent, without a plenary hearing, is entitled to less weight” ….”[A] sufficient change [in] circumstances can be established where  . . . the relationship between  joint custodial parents deteriorates ‘to the point where they simply cannot work together in a cooperative fashion for the good of their children'” … .  Matter of Youngs v Olsen, 514669, 3rd Dept, 5-2-13

 

 

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Summary Judgment in Neglect Proceeding Based Upon Proceeding Concerning Other Children in Another County Upheld​

In upholding the grant of summary judgment in a neglect proceeding based upon a prior “derivative neglect” determination (based upon drug abuse) with respect to other children in another county, the Third Department wrote:

“Although it is a drastic procedural device, Family Court is authorized to grant summary judgment in a neglect proceeding where no triable issue of fact exists” ….  We note that “evidence of abuse of one child will not, in and of itself, establish a prima facie case of derivative neglect or abuse of another” … . Rather, a prima facie case of “‘[d]erivative neglect is established where the evidence demonstrates an impairment of parental judgment to the point that it creates a substantial risk of harm for any child left in that parent’s care, and the prior neglect determination is sufficiently proximate in time to reasonably conclude that the problematic conditions continue to exist'” … . * * * Here, the prior neglect determination was proximate in time– the order reflecting respondent’s consent to a finding of neglect based upon excessive drug use was entered in January 2012, and petitioner moved for summary judgment in this proceeding less than one month later.  Matter of Alyssa WW … v Cortland County DSS, 514585, 3rd Dept, 5-2-13

 

 

Joint Custody Inappropriate Where Parents Can Not Cooperate​

In affirming Family Court’s decision to award custody to mother because of the evidence that mother and father could not cooperate, the Second Department wrote:

“[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion” … . “However, joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child'” …. Since the record here is replete with examples of hostility and antagonism between the parties, indicating that they were unable to put aside their differences for the good of the child, the Family Court erred in awarding the parties joint legal custody of the subject child …. Rather, an award of sole legal custody to the mother is in the child’s best interests … . Matter of Wright v Kaura, 2013 NY Slip Op 03105, 2nd Dept, 5-1-13

 

Father’s Application for Dismissal of Maternal Aunt’s Custody Petition (After Death of Mother) Granted

After the child’s mother died, petitioner, the child’s maternal aunt, sought custody.  In granting the father’s application to dismiss the petition, the Second Department wrote:

As between a parent and a nonparent, the parent has a superior right to custody which cannot be denied absent a showing of surrender, abandonment, persisting neglect, unfitness, or other similar extraordinary circumstances …. A nonparent seeking custody of a child against the wishes of a parent has the initial burden of establishing the existence of extraordinary circumstances …. Once extraordinary circumstances are found, the court must then make the disposition that is in the best interests of the child … .  Here, the petitioner failed to establish the existence of extraordinary circumstances sufficient to warrant a hearing with regard to the child’s best interests … . Matter of Andracchi v Reetz, 2013 NY Slip Op 03090, 2nd Dept, 5-1-13

 

 

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Legal Criteria for Determining Visitation Rights of Incarcerated Father Clarified

The Court of Appeals, in a full-fledged opinion by Judge Pigott, held that there is a rebuttable presumption in favor of a child’s visitation with an incarcerated parent and that denial of such visitation must be supported by “substantial evidence.” In order to clarify the law in this area, the court explained:

A rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding custody and/or visitation. Moreover, the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated. A parent who is in prison does not forfeit his or her visitation rights by being incarcerated. “[P]etitioner’s incarceration, standing alone, does not make a visitation order inappropriate,” but a demonstration “that such visitation would be harmful to the child will justify denying such a request” …. In deciding whether the presumption is rebutted, the possibility that a visit to an incarcerated parent would be harmful to the child must be considered, together with other relevant facts. Visitation should be denied where it is demonstrated that under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited. In speaking of the manner in which the presumption of visitation may be rebutted, the Appellate Division has frequently used the terms “substantial proof” and “substantial evidence.” “[T]he sweeping denial of the right of the father to visit or see the child is a drastic decision that should be based upon substantial evidence” … . This language is intended to convey to lower courts and practitioners that visitation will be denied only upon a demonstration “ that visitation would be harmful to the child “ that proceeds by means of sworn testimony or documentary evidence. Matter of Granger v Misercola, No 72, CtApp, 4-30-13

 

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