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Parent Who, Under a Shared Custody Schedule, Has Custody of the Child the Majority of the Time, Can Not Be Ordered to Pay Child Support to the Other Parent, Financial Issues Are Irrelevant

The motion court awarded child support from the father to the mother, who, by virtue of the motion court’s schedule, did not have custody of the child the majority of the time.  In a full-fledged opinion by Justice Richter, including a dissent, the First Department reversed the motion court, finding that the award of child support, in a shared custody arrangement, must be based solely on the amount of time the child spends with each parent, and not on their respective financial situations.  Therefore, the parent who has custody the majority of the time is deemed the “custodial parent “who cannot be ordered to pay child support to the “noncustodial” parent.  The First Department wrote:

Under the CSSA’s [Child Support Standards Act’s] plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1-b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, “the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation (emphasis added)” … . The mandatory nature of the statutory language undeniably shows that the Legislature intended for the noncustodial parent to be the payer of child support and the custodial parent to be the recipient. The CSSA provides for no other option and vests the court with no discretion to order payment in the other direction. * * *

…[T]he father has 56% of time with the child compared to 44% for the mother — an almost 30% difference. Thus, the child spends significantly more time with the father, making the father the custodial parent for child support purposes… . * * *

 In finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties’ financial circumstances rather than their custodial status. In doing so, the court endorsed an approach where the determination of the custodial parent is based not on whom the child spends the majority of the time with, but instead on which parent has the lesser monetary means. No matter how well-intentioned the court may have been, neither the CSSA, nor Bast v Rossoff [91 NY2d 723], allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal. Rubin v Della Salla, 2013 NY Slip OP 02681, 6669, 1st Dept 4-18-13

 

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Child’s Out-Of-Court Statements Insufficient to Support Abuse Finding

In affirming Family Court’s determination that the child’s out-of-court statements were not sufficiently corroborated to support a finding of abuse by the father, the Second Department wrote:

A child’s out-of-court statements may provide the basis for a finding of abuse if the statements are sufficiently corroborated by other evidence tending to support the reliability of the child’s statements (see Family Ct Act § 1046[a][vi];… . The Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated …, and its findings must be accorded deference on appeal where, as here, the Family Court is primarily confronted with issues of credibility … .  Matter of Nicole G, 2013 NY Slip Op 02576, 2012-07263, 2012-07264, 2nd Dept, 4-17-13

 

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New York Had Jurisdiction to Modify Pennsylvania Support Order

In finding that Family Court had jurisdiction to modify a Pennsylvania support order, the Second Department wrote:

The Uniform Interstate Family Support Act (hereinafter UIFSA), codified in article 5-B of the Family Court Act, provides, in pertinent part, that a party seeking to modify and/or enforce a child support order issued in another state “shall register that order in this state” (Family Ct Act § 580-609). The parties agree that the support order governing the father’s child support obligations, which was issued by the Court of Common Pleas of Montgomery County, Pennsylvania … (hereinafter the Pennsylvania support order) was registered in the Family Court, Suffolk County, pursuant to UIFSA …. The Family Court had jurisdiction to modify the Pennsylvania support order, upon registration thereof, since none of the parties resides in Pennsylvania, the petitioner mother does not reside in New York, and the respondent father, at all relevant times, was subject to personal jurisdiction in Suffolk County (see Family Ct Act § 580-611[a][1]). Matter of Gowda v Reddy, 2013 NY Slip Op 02577, 2011-06440, 2nd Dept, 4-17-13

 

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Award of Sole Custody to Mother Without a Hearing Reversed—Reliance on Expert Recommendations Not Sufficient

In reversing the Family Court’s award of sole custody to the mother without a hearing, the Second Department wrote:

Here, the Family Court did not possess 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. Indeed, the court was not involved when the parties agreed to the existing custody and parenting agreement, and only became involved in this proceeding after the prior Family Court Judge in this matter retired. Furthermore, although the court had the recommendations of an expert before it, the recommendations of experts are but one factor to be considered …, and “are not determinative and do not usurp the judgment of the trial judge” …. Accordingly, the Family Court erred in denying the father’s petition and, inter alia, awarding sole physical custody to the mother without first holding an evidentiary hearing on the issue of physical custody and visitation so that it could make an independent determination as to the best interests of the children on the basis of the evidence presented at such a hearing ….  Matter of Schyberg v Peterson, 2013 NY Slip Op 02406, 2011-1113, 2nd Dept, 4-10-12

 

Grant of Visitation to Mother of Deceased Father (Grandmother) Reversed​

In reversing Family Court’s grant of visitation to the children’s grandmother, the Second Department wrote:

A court determining a petition for grandparent visitation under Domestic Relations Law § 72(1), must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights based on the death of a parent or equitable circumstances …. If the court concludes that the grandparent has established the right to be heard, then it must determine if visitation is in the best interests of the child … . “[T]he courts should not lightly intrude on the family relationship against a fit parent’s wishes” … . “Indeed, it is strongly presumed that a fit parent’s decisions are in the child’s best interests” … .

In this case, the Family Court should have denied the grandmother’s petition for visitation. The death of the children’s father provided the grandmother with automatic standing to seek visitation (see Domestic Relations Law § 72[1]…). Nevertheless, the Family Court improvidently exercised its discretion in granting the petition. The evidence in the record … established that visitation was not in the best interests of the children at the time the Family Court granted the petition … . Moreover, we note that on this appeal, the attorney for the children supports the denial of visitation. Matter of Pinsky v Botnick, 2012 NY Slip Op 02402, 2012-03338 2012-07576, 2nd Dept, 4-10-13​

 

No Need for Consent of Biological Father in Adoption Proceeding

In a decision by Justice Rick, the Third Department affirmed the adoption of a child without the consent of the biological father:

A  biological father’s consent to adopt a child over six months old  who was  born out of wedlock is required only if the father “maintained substantial and  continuous contact with the child as manifested by”  payment  of reasonable  child support and either monthly visitation or regular communication with the child or custodian (Domestic Relations Law  § 111 [1] [d]).”Only after the [biological] father establishes his right of consent to the adoption, by satisfying both the support and  communication provisions of the statute, does the court proceed to determine whether he has forfeited that right by evincing ‘an intent to forego his . . . parental . . . rights and  obligations'” as outlined in Domestic Relations Law  § 111 (2) (a)… . Matter of John Q v Erica R, 514216, 3rd Dept 3-28-13

 

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Court Improperly Amended Allegations in Neglect Petition

The Third Department, in a decision by Justice McCarthy, determined Family Court improperly amended the allegations in a neglect petition:

On this record, summary judgment was improperly granted. Significantly, the  petition as  filed only  alleges that respondent neglected the children as a result of the events surrounding respondent’s March  2011 arrest. Nevertheless, Family Court granted the petition based on  “amplified” allegations of neglect that it found related to the father’s alleged untreated mental illness. No amended petition was filed nor was respondent given an opportunity to amend his answer. While a court may amend the allegations in a neglect proceeding  “to conform  to the proof[,]. . . in such case the respondent shall be given reasonable time to prepare to answer the amended allegations” (Family Ct Act § 1051 [b] …). Matter of Aiden XX, 514147, 3rd Dept 3-28-13

 

Criteria for Grant of Visitation to Grandparent When Both Parents Alive

In affirming the grant of visitation to a grandparent (where both parents are living), the Third Department, in a decision by Justice Egan, wrote:

Where a grandparent seeks visitation and, as is the case here, both of the child’s parents are living, Family Court first must ascertain whether “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72 [1]) in order to confer standing … . “An essential part of the standing inquiry is the nature and extent of the existing grandparent-grandchild relationship . . . [as well as] the basis for the parents’ objection to visitation” ….  Should Family Court determine that the grandparent has standing to seek visitation, the question then becomes whether such visitation is in the child’s best interests …. Inasmuch as Family Court had the advantage of assessing the witnesses’ testimony and demeanor firsthand, its credibility determination “should not be set aside if it is supported by a sound and substantial basis in the record” …. Matter of Laudadio, 514069, 3rd Dept 3-28-13

 

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Okay for Expert to Rely On Information from Social Workers Who Are Not Subjected to Cross-Examination

The Third Department, in a decision by Justice Peters, determined that an expert in a custody matter could rely on information provided by caseworkers who where not subject to cross-examination:

Initially, both the mother and the attorney for the children contend that the opinion testimony of Elizabeth Schockmel, the court-appointed forensic psychologist, should have been stricken because her opinion was based in part upon information she obtained from Department of Social Services caseworkers who were not subject to cross-examination.  We disagree. “[T]he professional reliability exception to the hearsay rule . . . enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” … . Here,   Schockmel testified – without contradiction – that information obtained from  collateral sources is commonly  relied upon  within her profession when  conducting a forensic psychological evaluation in the context of a custody proceeding …. Moreover, her opinion was  principally based upon  information she obtained from  her extensive interviews with the mother, father and  children, with the collateral source information serving as but “a link in the chain of data” that assisted her in forming her opinion … . Accordingly,  Schockmel’s expert opinion testimony was  properly admitted.  Matter of Greene v Robarge, 512987, 3rd Dept 3-28-13

 

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Child Care Agency Could Be Found Negligent for Failure to Remove Child from Foster Parents’ Home

In a full-fledged opinion by Justice Acosta, the First Department reversed the trial court’s dismissal of a complaint against a child care agency which places children in foster homes.  A child the defendant placed allegedly started a fire in which members of the foster family were either killed or severely injured.  The First Department held that the child care agency, although it did not have a duty to control the child when he was in the foster family’s physical custody, had a duty to remove the child from the foster home upon notice of his propensity for setting fires:

In general, a defendant will not be liable for the conduct of third persons who cause harm to others … . However, the duty to control a third person’s conduct may arise when the defendant has authority to do so, and because of either the relationship between the defendant and the third person or the relation between the defendant and the plaintiff … . An example is the parent-child relationship … .

Thus, a child care agency, acting in loco parentis, has a duty to exercise reasonable care to prevent foster children under its supervision and control from harming others … .  Wynn, as Administratrix … v Little Flower Children’s Services, 2013 NY Slip Op 02156, 15276/95, 9200, 1st Dept 3-28-13

 

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