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THE ALLEGATIONS BY THE CHILDREN WERE SUFFICIENTLY CORROBORATED TO SUPPORT A FINDING FATHER COMMITTED DOMESTIC ABUSE AND THEREBY NEGLECTED THE CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined the allegations made by the children about father’s violence against mother were sufficiently corroborated to support a neglect finding against father:

… [A] preponderance of the evidence established that the father neglected the children by perpetrating acts of domestic violence against the mother in their presence … .. The out-of-court statement of the oldest child, Roland M., was sufficiently corroborated. “The out-of-court statements of siblings may properly be used to cross-corroborate one another” … . “However, such out-of-court statements must describe similar incidents in order to sufficiently corroborate the sibling’s out-of-court allegations” … “and be independent from and consistent with the other sibling’s out-of-court statement” (Matter of Ashley G. [Eggar T.], 163 AD3d at 965). Roland M.’s statement was corroborated by the out-of-court statement of his sister, Rosalee M., that she witnessed the father drag the mother out the door and choke her. Roland M.’s statement was also corroborated by the ORT received by the petitioner, which reported that Roland M. called the authorities during the domestic violence incident, that during the incident the father strangled the mother with his hands, that Roland M. had to intervene, and that the father was being charged with strangulation in the second degree … …

… [T]he evidence was sufficient to establish that the father’s acts of domestic violence against the mother in the children’s presence impaired, or created an imminent danger of impairing, the children’s physical, mental, or emotional condition … . Matter of Roland M. (Manuel M.), 2024 NY Slip Op 01011, Second Dept 2-28-24

Practice Point: The issue here was whether the domestic abuse allegations by the children were sufficiently corroborated. The Appellate Division held that they were, giving some insight into what constitutes sufficient corroboration in this context.

 

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FAMILY COURT’S RELIGION-BASED DIRECTIVES IN THIS CUSTODY CASE WERE NOT WITHIN THE “BEST INTERESTS OF A CHILD” CATEGORIES OUTLINED IN THE SEMINAL CASE, ALDOUS V ALDOUS, AND WERE THEREFORE VACATED (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, in a full-fledged opinion by Justice Reynolds Fitzgerald, over a partial concurrence and partial dissent, determined Family Court’s directives with respect to religion in this custody case should be vacated:

While a court may consider religion as a factor in determining the best interests of a child in custody disputes, “it alone may not be the determinative factor” (Aldous v Aldous, 99 AD2d 197 …). Additionally, cases that do consider religion as a factor generally fall into three separate categories: (1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being … . This standard, enunciated in 1984, continues to be followed … .

None of the three categories outlined in Aldous are applicable to the case before us. The July 2020 consent order granted the parties joint legal custody with equal parenting time. Notably, no reference is made to religion in the custody order. At the time the petitions were filed, the child was not quite two years old and, as such, not of an age so as to allow him to have developed actual religious ties to a specific religion. Nor does the record reveal that the father’s religious beliefs violated a state statute or threatened the child’s well-being. As a result, Family Court improperly intervened in the parties’ religious dispute … . Thus, the court’s directives to the parties that neither parent shall permit the child to attend religious services or instruction until an agreement between the parties is reached on this issue, to address the issue of religion while participating in court-ordered coparenting counseling, and that a failure to reach an agreement with regard to religion will — after completing the court-ordered number of coparenting sessions — constitute a change in circumstances for purposes of modification, were issued in error and should be vacated. Matter of Joseph XX. v Jah-Rai YY., 2024 NY Slip Op 00950, Third Dept 2-22-24

Practice Point: The religious directives issued by Family Court in this custody case were outside the three “best interests of a child” categories outlined in the controlling case, Aldous v Aldous, i.e., “(1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being.”

 

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PETITIONERS’ MINOR CHILD’S NAME CHANGE AND SEX-DESIGNATION CHANGE COURT RECORDS SHOULD HAVE BEEN PERMANENTLY SEALED PURSUANT TO THE CIVIL RIGHTS LAW (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Garry, reversing Supreme Court, determined the records of petitioners’ minor child’s name change and sex-designation change should be permanently sealed pursuant to the Civil Rights Law:

Endeavoring to remove barriers, expand protections and simplify the subject process for transgender and nonbinary New Yorkers … , the Gender Recognition Act expressly authorizes individuals to simultaneously petition for a change in sex designation and change of name (see Civil Rights Law § 67 [3]). Notwithstanding the different sealing standards articulated within the subject articles, both provisions expressly recognize an applicant’s transgender status as a ground for sealing the records … . The provisions promote the sealing of name change applications by transgender applicants — on the court’s own initiative, even where such relief is not requested.

… [T]his is for good reason. Despite some progress in our recent past, it remains sadly true, as evidenced by nearly every memorandum in support of the Act, and amply illustrated by the amici in this case, that risk to one’s safety is always present upon public disclosure of one’s status as transgender or otherwise gender nonconforming … . The Legislature recognized that disclosure of such status subjects individuals to the risk of “hate crimes, public ridicule, and random acts of discrimination” … . Courts have also observed this unfortunate reality … . There is no doubt that violence and discrimination against transgender and nonbinary individuals continue to permeate our society at alarming rates … . Matter of Cody VV. (Brandi VV.), 2024 NY Slip Op 00961, Third Dept 2-22-24

Practice Point: Court records reflecting a sex-designation change and a name change should, in most cases, be permanently sealed pursuant to the Civil Rights Law.

 

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RESPONDENT MATERNAL UNCLE IN THIS CUSTODY PROCEEDING DID NOT EFFECTIVELY WAIVE HIS RIGHT TO COUNSEL; ORDER REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody action, determined respondent uncle did not waive his right to counsel:

Here, the maternal uncle had a statutory right to the assistance of counsel because he was a respondent in a child custody proceeding … . Although the record demonstrates that, at an appearance on the petition, the Family Court advised the maternal uncle of his right to retain counsel and his right to request an adjournment, it incorrectly informed him that “non parents in custody cases . . . are not entitled to assigned counsel.” The record also shows that while the maternal uncle indicated his desire to retain counsel and to adjourn the matter, he did not speak when the court and the father’s counsel discussed awarding the father temporary custody of the subject child with no visitation for the maternal uncle, and he exhibited confusion with respect to the purpose of the proceeding … . Under all of these circumstances, it cannot be said that the maternal uncle had a “sufficient awareness of the relevant circumstances and probable consequences” of proceeding without counsel … .

Furthermore, on the adjourned date, the Family Court erred in determining the merits of the father’s petition without first conducting a hearing … . Matter of Huasco v Chimborazo, 2024 NY Slip Op 00767, Second Dept 2-14-24

Practice Point: A respondent in a custody proceeding has a right to counsel. Here respondent did not explicitly waive his right to counsel and the order was reversed.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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