The Second Department determined Family Court’s failure to hold a hearing to determine the mother’s petition for custody, and the Court’s failure to advise the father that he had the right to counsel, required reversal of the grant of custody to the mother. In the Matter of Savoca v Bellofatto, 2012-02935, Docket No V-22033-11, Second Dept 3-6-13
This case, which was not affected by the 2010 amendment to Family Court Act section 451(2)(a), includes a clear discussion of the criteria for an upward modification of a child support obligation where a party is seeking to modify “a child support provision derived from an agreement or stipulation incorporated but not merged into a divorce decree…”. The party seeking modification “has the burden of proving that the agreement was unfair or inequitable when entered into or that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the child are not being adequately met…”. Matter of Overbaugh vs Schettini, 515079 Third Dept. 2-14-13
A finding of neglect based upon the respondent’s allowing the mother of the children to drive with the children when she was intoxicated (.10%) was affirmed by the Third Department. Matter of Darcy Y., 514430 Third Dept. 2-14-13
In reversing an “amended judgment” in which the judge purported to correct an error in the calculation of child support and maintenance arrears, the Fourth Department noted: “a court has no power to reduce or increase the amount of a judgment when there is no clerical error…”. Meenan vs Meenan, 1493, CA12-01885 Fourth Dept. 2-8-13
In a proceeding pursuant to part three, article six of the Family Court Act to allow a mother visitation with her child in her home, the Fourth Department determined the grandmother, who had primary physical custody of the child, should have been advised of her right to assigned counsel (Family Court Act section 262 (a)(iii)). The court’s failure to so advise her constituted reversible error. Matter of Wright vs Walker, 11, CA-12-00962 Fourth Dept. 2-1-13
The First Department reversed a finding of neglect of a child which was based on a single incident. There is a brief but substantive discussion of neglect or abuse findings based upon a single incident. In re Pria J. L., et al, 8841 First Dept. 1-29-13
Before a party can be estopped from denying paternity the court must be convinced applying equitable estoppel is in the best interest of the child. Here the child was eight years old, knew the respondent as her father, with his encouragement, and relied on respondent to be her father. Family Court’s finding the respondent was equitably estopped from asserting nonpaternity was correct. Commissioner of Social Services vs. Julio, J., No. 57, SSM 44, CtApp, 1-10-13
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