Family Law – Page 17 – New York Appellate Digest

THE OBVIOUS BIAS OF THE JUDGE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT).

The Fourth Department, reversing Family Court in this termination of parental rights proceeding, determined the bias of the judge deprived mother of due process of law. In another decision issued on February 2, 2024, the Fourth Department criticized the same Family Court judge for abandoning her judicial role and acting as an advocate in a child placement proceeding (Matter of Zyion B …, 2024 NY Slip OP 00550):

… [T]he record demonstrates that Family Court “had a predetermined outcome of the case in mind during the hearing” … . During a break in the hearing testimony, a discussion occurred on the record with regard to a voluntary surrender. When the mother changed her mind and stated that she would not give up her child, the court responded, “Then I’m going to do it.” At that point, the only evidence that had been presented was the direct testimony of one caseworker. The court’s comments, in addition to expressing a preconceived opinion of the case, amounted to a threat that, should the mother continue with the fact-finding hearing, the court would terminate her parental rights … . Those comments were impermissibly coercive (see generally Social Services Law § 383-c [6] [d]). That the court made good on its promise to terminate the mother’s parental rights cannot be tolerated.

The record further demonstrates that the Family Court Judge was annoyed with the mother’s refusal to surrender her parental rights to the child. We are compelled to remind the Family Court Judge “that even difficult or obstreperous litigants are entitled to ‘patient, dignified and courteous’ treatment from the court, and that judges must perform their duties ‘without bias or prejudice’ ” … . Matter of Anthony J. (Siobvan M.), 2024 NY Slip Op 00574, Fourth Dept 2-2-24

Practice Point: Here the judge made it clear she had already decided mother’s parental rights should be terminated at the outset of the hearing. The judge’s bias deprived mother of her right to due process of law.

February 2, 2024

Family Law, Judges

FAMILY COURT JUDGE CRITICIZED BY THE FOURTH DEPARTMENT FOR ABANDONING HER ROLE AS A JUDGE AND ACTING AS AN ADVOCATE (FOURTH DEPT).

Although the appeal was moot, the Fourth Department took the opportunity to criticize the Family Court judge for acting as an advocate in this child placement proceeding:

At the hearing, the Judge “took on the function and appearance of an advocate” by choosing which witnesses to call and “extensively participating in both the direct and cross-examination of . . . witnesses” … , with a clear intention of strengthening the case for removal. For example, she asked a … caseworker whether the mother was “hostile, aggressive, violent or out of control,” and repeated questions to that caseworker using the same or similar phrasing at least 10 times. When the mother’s counsel objected to the Judge’s leading questions of another witness regarding incidents outside the relevant time period, the Judge overruled the objection, stating that “there’s no one else to run the hearing except for me.” She also introduced and admitted several written documents during the mother’s testimony over the objection of the mother’s counsel, and despite the mother’s statement that she could not read and was not familiar with the documents. In short, the Judge “essentially ‘assumed the parties’ traditional role of deciding what evidence to present’ ” while simultaneously acting as the factfinder … and thereby “transgressed the bounds of adjudication and arrogated to [herself] the function of advocate, thus abandoning the impartiality required of [her]” … .

This ” ‘clash in judicial roles,’ ” in which the Judge acted both as an advocate and as the trier of fact, “[a]t the very least . . . created the appearance of impropriety” … , particularly when the Judge aggressively cross-examined the mother regarding topics that were not relevant to the issue of the child’s removal and seemed designed to embarrass and upset the mother … . One such area of cross-examination concerned the fact that the mother had become pregnant several months before the hearing, but had been forced to terminate the pregnancy when it was determined to be ectopic. The Judge repeatedly questioned the mother regarding how many times the mother had engaged in sexual intercourse with the father of the terminated fetus, even though such information does not appear to have been relevant to the issue of the subject child’s placement inasmuch as, inter alia, there was no indication that the man was ever in the subject child’s presence. The Judge also asked the mother baseless questions about whether that man was a pedophile. Matter of Zyion B. (Fredisha B.), 2024 NY Slip Op 00550, Fourth Dept 2-2-24

Practice Point: Here the Fourth Department criticized the Family Court judge for acting as an advocate in this child placement proceeding.

February 2, 2024

Criminal Law, Family Law

ALLEGATIONS THAT RESPONDENT INSTALLED SOFTWARE ON PETITIONER’S COMPUTER ALLOWING RESPONDENT TO CONTROL THE COMPUTER REMOTELY, AND ALLEGATIONS RESPONDENT MADE PHONE CALLS TO PETITIONER INTENDED TO BE THREATENING, SUFFICIENTLY ALLEGED THE FAMILY OFFENSES OF HARASSMENT AND STALKING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the petition sufficiently alleged harassment and stalking family offeses based upon allegations respondent, petitioner’s estranged husband, installed software on petitioner’s computer allowing him to control the computer remotely, and made phone calls to petitioner intended to be threatening:

… [P]etitioner alleged that respondent installed spyware on her Apple laptop computer and that petitioner first noticed in mid-April 2021 that her username had been changed to “Creep” and that all documents related to the divorce proceedings between the parties had been deleted. Petitioner further alleged that, after taking the laptop to a computer store to have the laptop reset, she noticed about a week later that the laptop began showing the matrimonial files, which then disappeared again. Petitioner alleged that respondent was again controlling her laptop remotely. Petitioner also alleged a series of other related incidents. For example, she noticed in late April 2021 that her iPhone password had changed; she received a “spoofed” text message in early May 2021 and she discovered about a day later that respondent had accessed her Dropbox account; and she received another alarming or annoying text message in mid-May 2021 that referred to respondent’s pet name for her. Petitioner thus alleged more than an isolated incident and, upon ” ‘[l]iberally construing the allegations of the [second] family offense petition and giving it the benefit of every possible favorable inference,’ ” we conclude that the second petition alleges acts that, if committed by respondent, would constitute the family offense of harassment in the second degree … . Matter of Dhir v Winslow, 2024 NY Slip Op 00531, Fourth Dept 2-2-24

Practice Point: Remotely controlling petitioner’s computer and making phone calls intended to be threatening may constitute the family offenses of harassment and stalking.

February 2, 2024

Civil Procedure, Family Law

A HABEAS CORPUS PETITION WAS AN AVAILABLE METHOD FOR MOTHER TO SEEK CUSTODY DURING FAMILY COURT’S COVID MORATORIUM ON NONESSENTIAL MATTERS; THE PETITION PROVIDED FAMILY COURT WITH JURISDICTION WHICH WAS SUBSEQUENTLY LOST BECAUSE THE CHILDREN WERE TAKEN OUT OF STATE; FAMILY COURT SHOULD HAVE CONVERTED THE HABEAS PETITION TO A CUSTODY PROCEEDING PURSUANT TO CPLR 103 (C) (FIRST DEPT).

The First Department, reversing Family Court, determined that the habeas corpus petition filed by mother during the COVID moratorium on nonessential matters provided Family Court with jurisdiction over mother’s custody matter. Because the children had been out state for more than six months when mother made a subsequent custody application, Family Court did not have jurisdiction over them. Family Court should have converted the habeas corpus petition to a custody proceeding:

Family Court had jurisdiction over the parties to decide the mother’s custody petition pursuant to article 6 of the Family Court Act and, upon that basis and the unique circumstances presented in this case, should have converted the action from a writ of habeas corpus to a custody proceeding pursuant to CPLR 103(c) … .

The mother could not have even filed a custody petition in 2020 as a result of the Family Court’s Covid-19 moratorium on all nonessential matters but petitioning for a writ of habeas corpus was an available option to seek the return of the children to New York at the time. By the time the restriction was lifted, the children had already been out of state for more than six months, and Family Court had no jurisdiction over them which resulted in dismissal of the mother’s subsequently-filed custody application. * * * Although the mother was initially able to serve the father with the writ, her subsequent attempts at serving him were unsuccessful. Matter of Celinette H.H. v Michelle R., 2024 NY Slip Op 00456, First Dept 2-1-24

Practice Point; A habeas corpus petition was an appropriate vehicle for seeking custody during the Family Court COVID moratorium on nonessential matters.

February 1, 2024

Family Law, Judges

ALTHOUGH FAMILY COURT CAN DIRECT A PARTY TO SUBMIT TO COUNSELING AS PART OF A VISITATION OR CUSTODY ORDER, THE COURT CANNOT SO CONDITION A PARTY’S REAPPLICATION FOR PARENTAL ACCESS AFTER A DENIAL (SECOND DEPT).

The Second Department upheld Family Court’s denial of parental access to the father, but Family Court should not have conditioned father’s ability to reapply for parental access on completion of a parenting skills class, getting mental health treatment, and submitting a letter from a therapist that he was not a danger to the children:

A court deciding a custody proceeding “may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order” … . “However, a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights”… .. Here, the Family Court erred in conditioning the filing of any future petitions by the father to modify his parental access upon his successful completion of a parenting skills class, his enrollment in mental health treatment, and his submission of a letter from his therapist stating that the father would not pose a danger to the child’s mental, physical, or moral welfare. Accordingly, we modify the order so as to eliminate those conditions. Matter of Mazo v Volpert, 2024 NY Slip Op 00426, Second Dept 1-31-24

Practice Point: After denying parental access, the judge cannot condition that party’s reapplication for access on taking classes and getting therapy.

January 31, 2024

Appeals, Attorneys, Civil Procedure, Family Law, Judges

THERE IS NO INDICATION MOTHER WAS INFORMED OF HER COUNSEL’S WITHDRAWAL BEFORE THE PERMANENCY HEARING WAS HELD IN MOTHER’S AND COUNSEL’S ABSENCE; NEGLECT FINDING REVERSED; TWO DISSENTERS ARGUED NO APPEAL LIES FROM A DEFAULT AND MOTHER’S ONLY REMEDY IS A MOTION TO VACATE (THIRD DEPT).

The Third Department, reversing Family Court in this neglect proceeding, determined it was not demonstrated mother was informed of her counsel’s intent to withdraw from representing her before the judge conducted the permanency hearing in counsel’s and mother’s absence and found against her. The two-justice dissent argued no appeal lies from a default and mother’s recourse was to move to vacate the default pursuant of CPLR 5015(a):

It is well established that the mother, as a respondent in a proceeding pursuant to article 10 of the Family Ct Act, had both a constitutional and a statutory right to the assistance of counsel … . Once counsel has been assigned, an attorney of record may withdraw from representation only upon reasonable notice to his or her client … . Such requirement remains true even where a party fails to appear at proceedings or there are allegations of a breakdown in communication between the client and the attorney … .

Here, there is no indication in the record that the mother’s assigned counsel had informed her that she was seeking to withdraw as counsel … . Nor does the record reveal that Family Court made any inquiry into such notice or whether there was good and sufficient cause for such withdrawal … . Matter of Richard TT. (Kara VV.), 2024 NY Slip Op 00215, Third Dept 1-18-24

Practice Point: There is no evidence mother in this neglect proceeding was informed of her counsel’s withdrawal before the court made the neglect finding in her and her counsel’s absence. Matter reversed and remitted.

Practice Point: Two dissenters argued no appeal lies from a default and mother’s only remedy is a motion to vacate the default.

January 18, 2024

Appeals, Attorneys, Family Law, Judges

ALTHOUGH FATHER FILED A PETITION FOR CUSTODY AFTER GRANDMOTHER WAS AWARDED CUSTODY, FATHER’S APPEAL WAS NOT MOOT; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY TO ENSURE FATHER’S WAIVER OF COUNSEL WAS KNOWING, VOLUNTARY AND INTELLIGENT (SECOND DEPT).

The Second Department, reversing Family Court, determined: (1) the fact that father filed a petition for custody after custody had been awarded to grandmother did not render father’s appeal of the custody-award to grandmother moot; (2) because the judge failed to make a searching inquiry, father did not effectively waive his right to counsel:

“Once a court makes a finding that extraordinary circumstances exist” to conclude that a parent relinquished his or her otherwise superior right to custody as compared to a nonparent, “that issue cannot be revisited in a subsequent proceeding seeking to modify custody and, thus, such a finding may have enduring consequences for the parties” … . In the order appealed from, the Family Court determined that the requisite extraordinary circumstances existed. This appeal is therefore not academic, among other reasons, because the court’s determination in the order appealed from imposes enduring consequences upon the father that will “impact the scope of the pending proceedings” … . …

Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was made knowingly, voluntarily, and intelligently … . The hearing record demonstrates that the father did not wish to proceed pro se, but felt that he had no other option but to do so … . To the extent the attorney for the child contends that the court was not required to conduct a searching inquiry because the father did not demonstrate that he was entitled to assigned counsel, this contention is without merit. A court’s obligation to ensure the validity of a party’s waiver of his or her right to counsel extends beyond indigent parties … . In any event, the father indicated that he lacked the funds necessary to afford an attorney, and the court failed to inquire into the father’s financial capability to retain counsel … . The court had an independent obligation to conduct such an inquiry and could not rely solely upon information received from the Legal Aid Society of Orange County regarding whether the father qualified for its services … . Matter of Turner v Estate of Laura Katherine Jane Turner, 2024 NY Slip Op 00193, Second Dept 1-17-24

Practice Point: Here father’s appeal of the award of custody to grandmother was not moot, even though father first filed for custody after the award of custody to grandmother.

Practice Point: A sufficient inquiry into whether a party’s waiver of the right to counsel is knowing, voluntary and intelligent must go beyond whether the party is financially entitled to assigned counsel.

January 17, 2024

Criminal Law, Family Law

A FACTUAL NEXUS BETWEEN THE ENDANGERING THE WELFARE OF A CHILD CONVICTION AND THE ALLEGATIONS IN THE NEGLECT PETITION WAS NOT DEMONSTRATED; FAMILY COURT SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT ON THE NEGLECT ALLEGATIONS BASED ON THE CRIMINAL CONVICTION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the record was not sufficient to support summary judgment on the neglect allegations based upon respondent’s plea to endangering the welfare of a child:

… [A] criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct” … . “It is well settled that [t]he party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination” … . * * *

“[I]t is not enough to merely establish the existence of the criminal conviction; the petitioner must prove a factual nexus between the conviction and the allegations made in the neglect petition” … . Matter of Clarissa F. (Rex O.), 2023 NY Slip Op 06680, Fourth Dept 12-22-23

Practice Point: Here a factual nexus between the endangering the welfare of a child conviction and the allegations of neglect was not demonstrated. Summary judgment on the neglect allegations based solely on the criminal conviction should not have been granted.

December 22, 2023

Criminal Law, Evidence, Family Law

DEFENDANT IN THIS MANSLAUGHTER CASE WAS ENTITLED TO A REDUCED SENTENCE UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); TWO DISSENTERS ARGUED DEFENDANT’S SENTENCE WAS NOT UNDULY HARSH (THIRD DEPT).

The Third Department, reversing County Court, over a two-justice dissent, determined defendant was entitled to resentencing in this manslaughter case under the Domestic Violence Survivors Justice Act (DVSJA). The dissenters agreed that defendant met the DVSJA criteria for a reduced sentence, but argued the sentence that was imposed was not unduly harsh:

… [W]e disagree with County Court’s determination that defendant’s abuse was anything less than “substantial,” as defendant’s own account of the specific acts of violence, which is largely corroborated by various witnesses in the record, and the injuries suffered as well as the psychological abuse that came alongside such violence was sufficient to fall under the ambit of the DVSJA. Although the court accurately concluded that the relationship between defendant and the victim was mutually abusive, that does not foreclose a determination that defendant was a victim of abuse … . Moreover, such conduct is readily explained in Lesswing’s [the forensic psychologist’s] report as typical of those persons suffering from battered person syndrome, particularly in the case of defendant who had a lengthy history of exposure to domestic violence over the course of her life … . People v Brenda WW., 2023 NY Slip Op 06564, Third Dept 12-21-23

Practice Point: Here in this manslaughter case the defendant met the criteria for a reduced sentence under the Domestic Violence Survivors Justice Act (DVSJA). Two dissenters agreed that defendant met the criteria but argued the imposed sentence was not unduly harsh.

December 21, 2023

Attorneys, Civil Procedure, Contract Law, Family Law

THE STIPULATION OF SETTLEMENT INCORPORATED BUT NOT MERGED IN THE JUDGMENT OF DIVORCE WAS UNAMBIGUOUS AND PROVIDED EACH PARTY WAS RESPONSIBLE FOR THEIR OWN ATTORNEY’S FEES; IT WAS THEREFORE ERROR TO AWARD FATHER ATTORNEY’S FEES (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that the stipulation incorporated but not merged in to the judgment of divorce, which provided that each party was responsible for their own attorney’s fees, controlled. Therefore the award of attorney’s fees to father was error:

… [T]he parties executed a written stipulation of settlement containing the provision, “as and for a global resolution, each party shall be responsible for the payment of his and her respective attorney fees.”

“A stipulation of settlement that is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation” … . “Generally, where the parties have agreed to provisions in a settlement agreement which govern the award of attorney’s fees, the agreement’s provisions, rather than statutory provisions, control” … . If the contract is clear and unambiguous, it is to be interpreted so as to give effect to the parties’ intent and the intent is to be gleaned from within the four corners of the document … . Here, the fees awarded were as a result of the initial custody determination, and a review of the stipulation of settlement reveals no ambiguity as the agreement clearly provides that each party is to be responsible for his and her respective counsel fees and we must give its terms their plain meaning … . Moreover, in rendering its determination, Supreme Court did not reference the stipulation’s express provision that each parent shall be responsible for his and her counsel fees, thus, it erred in awarding the father counsel fees … . Daryl N. v Amy O., 2023 NY Slip Op 06286, Third Dept 12-7-23

Practice Point: A stipulation of settlement incorporated but not merged into a judgment of divorce is a contract which supersedes statutory provisions. The unambiguous provision in the stipulation that each party is responsible for their own attorney’s fees controls. Attorney’s fees should not have been awarded to father.

December 7, 2023

THE OBVIOUS BIAS OF THE JUDGE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT).

FAMILY COURT JUDGE CRITICIZED BY THE FOURTH DEPARTMENT FOR ABANDONING HER ROLE AS A JUDGE AND ACTING AS AN ADVOCATE (FOURTH DEPT).

ALLEGATIONS THAT RESPONDENT INSTALLED SOFTWARE ON PETITIONER’S COMPUTER ALLOWING RESPONDENT TO CONTROL THE COMPUTER REMOTELY, AND ALLEGATIONS RESPONDENT MADE PHONE CALLS TO PETITIONER INTENDED TO BE THREATENING, SUFFICIENTLY ALLEGED THE FAMILY OFFENSES OF HARASSMENT AND STALKING (FOURTH DEPT).

ALTHOUGH FAMILY COURT CAN DIRECT A PARTY TO SUBMIT TO COUNSELING AS PART OF A VISITATION OR CUSTODY ORDER, THE COURT CANNOT SO CONDITION A PARTY’S REAPPLICATION FOR PARENTAL ACCESS AFTER A DENIAL (SECOND DEPT).

THERE IS NO INDICATION MOTHER WAS INFORMED OF HER COUNSEL’S WITHDRAWAL BEFORE THE PERMANENCY HEARING WAS HELD IN MOTHER’S AND COUNSEL’S ABSENCE; NEGLECT FINDING REVERSED; TWO DISSENTERS ARGUED NO APPEAL LIES FROM A DEFAULT AND MOTHER’S ONLY REMEDY IS A MOTION TO VACATE (THIRD DEPT).

ALTHOUGH FATHER FILED A PETITION FOR CUSTODY AFTER GRANDMOTHER WAS AWARDED CUSTODY, FATHER’S APPEAL WAS NOT MOOT; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY TO ENSURE FATHER’S WAIVER OF COUNSEL WAS KNOWING, VOLUNTARY AND INTELLIGENT (SECOND DEPT).

A FACTUAL NEXUS BETWEEN THE ENDANGERING THE WELFARE OF A CHILD CONVICTION AND THE ALLEGATIONS IN THE NEGLECT PETITION WAS NOT DEMONSTRATED; FAMILY COURT SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT ON THE NEGLECT ALLEGATIONS BASED ON THE CRIMINAL CONVICTION (FOURTH DEPT).

DEFENDANT IN THIS MANSLAUGHTER CASE WAS ENTITLED TO A REDUCED SENTENCE UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); TWO DISSENTERS ARGUED DEFENDANT’S SENTENCE WAS NOT UNDULY HARSH (THIRD DEPT).

THE STIPULATION OF SETTLEMENT INCORPORATED BUT NOT MERGED IN THE JUDGMENT OF DIVORCE WAS UNAMBIGUOUS AND PROVIDED EACH PARTY WAS RESPONSIBLE FOR THEIR OWN ATTORNEY’S FEES; IT WAS THEREFORE ERROR TO AWARD FATHER ATTORNEY’S FEES (THIRD DEPT).

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