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A PRETRIAL RULING ON THE ADMISSIBILITY OF EVIDENCE IS AN UNAPPEALABLE ADVISORY RULING; THE MOTION IN LIMINE SEEKING TO SET A LIMIT ON THE VALUE OF AN LLC WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION WHICH SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined: (1) an advisory pretrial ruling on the admissibility of evidence is not appealable, and (2) the motion to limit the evidence of the valuation of the LLC to $2,450,000, although couched as a motion in limine, was actually an untimely summary judgment motion:

“[A]n order, made in advance of trial, which merely determines the admissibility of [*2]evidence is an unappealable advisory ruling” … . * * *

… [P]laintiff’s motion which sought, in effect, to set the minimum value of the LLC at $2,450,000 and preclude any evidence of a lower value, while styled as a motion in limine, was the functional equivalent of an untimely motion for partial summary judgment determining that the value of the LLC was at least $2,450,000 … . “[A] motion in limine is an inappropriate substitute for a motion for summary judgment” … , and “in the absence of any showing of good cause for the late filing of such a motion,” should not have been considered … . Desantis v Desantis, 2024 NY Slip Op 01699, Second Dept 3-27-24

Practice Point: A pretrial ruling on the admissibility of evidence is an unappealable advisory ruling.

Practice Point: The motion in limine seeking to set a limit on the value of an LLC in this divorce proceeding was actually an untimely motion for summary judgment which should not have been considered.

 

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NEGLECT FINDINGS BASED ON MOTHER’S MENTAL ILLNESS AND INADEQUATE SHELTER, EDUCATION, HYGIENE OR CLOTHING NOT SUPPORTED BY THE EVIDENCE; CRITERIA EXPLAINED IN SOME DEPTH (FOURTH DEPT).

The Fourth Department, reversing Family Court, in a fact-specific decision which cannot be fairly summarized here, determined the proof did not support the finding mother neglected the child by providing inadequate shelter, education, hygiene or clothing. In addition, the finding mother neglected the child based on mental illness was not proven. The decision explains the level of proof needed for finding neglect in these contexts:

… [T]he Family Court Act defines a neglected child as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [the child’s] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, [or] shelter . . . though financially able to do so or offered financial or other reasonable means to do so” (Family Ct Act § 1012 [f] [i] [A]). The statute also provides that a parent is responsible for educational neglect when, under the same requisite conditions, the parent fails to supply the child with “adequate . . . education in accordance with the provisions of [the compulsory education part of Education Law article 65] . . . notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition” … .

“The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence” (… see Family Ct Act § 1046 [b] [i]). “First, there must be ‘proof of actual (or imminent danger of) physical, emotional or mental impairment to the child’ ” … . “In order for danger to be ‘imminent,’ it must be ‘near or impending, not merely possible’ ” … . “This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior” … . “Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances . . . Critically, however, the statutory test is minimum degree of care—not maximum, not best, not ideal—and the failure must be actual, not threatened” … .Matter of Justice H.M. (Julia S.), 2024 NY Slip Op 01653, Fourth Dept 3-22-24

Practice Point: The criteria for a neglect finding are explained in some depth. Here the proof did not support a finding of neglect based on mother’s mental illness or inadequate shelter, education, hygiene or clothing.

 

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​THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) RELIED SOLELY ON PRIOR NEGLECT FINDINGS FROM 2007 AND 2009 TO PROVE DERIVATIVE NEGLECT; NEGLECT FINDING REVERSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Administration for Children’s Services (ACS) did not demonstrate mother had derivatively neglected the child. ACS had brought a motion for summary judgment which the court granted. The Second Department noted that motions for summary judgment pursuant to CPLR 3212 can be appropriate in a Family Court proceeding:

While proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of the parent (see Family Ct Act § 1046[b]), “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings. The focus of the inquiry . . . is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood” … . In determining whether a child born after the underlying acts of abuse or neglect should be adjudicated derivatively neglected, the “determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists” … .

Here, ACS failed to establish, prima facie, that the mother derivatively neglected the children based upon her alleged failure to address certain mental health issues underlying the 2007 and 2009 findings of neglect … . In support of its motion, ACS relied solely on the prior neglect findings and failed to include an affidavit from anyone with personal knowledge of the events alleged in the neglect petitions or any other evidentiary material (see CPLR 3212[b]). The prior neglect findings were not so proximate in time to establish, as a matter of law, that the conditions that formed the basis therefor continued to exist … . Matter of Kiarah V.R. (Virginia V.), 2024 NY Slip Op 01552, Second Dept 3-20-24

Practice Point: Here reliance on 2007 and 2009 neglect findings to demonstrate derivative neglect was deemed insufficient.

Practice Point: The court noted that summary judgment motions pursuant to CPLR 3212 can be brought in Family Court.

 

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ALTHOUGH THE COURT HAD, IN 2018, GRANTED MOTHER’S APPLICATION TO RELOCATE WITH THE CHILD TO CONNECTICUT, THE COURT SHOULD NOT HAVE DECIDED IT DID NOT HAVE JURISDICTION TO DETERMINE FATHER’S PETITION TO MODIFY THE CUSTODY ORDER WITHOUT HOLDING A HEARING ABOUT THE CHILD’S CONNECTIONS TO NEW YORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have determined New York courts no longer had jurisdiction over this modification of custody case without holding a hearing:

In November 2018, the Supreme Court granted the mother’s application to relocate with the child from New York to Connecticut. In an order dated May 31, 2022, the court awarded sole custody of the child to the mother and suspended the father’s parental access upon the father’s default in appearing at a scheduled court appearance. The father subsequently filed a petition to modify the order dated May 31, 2022, so as to award him sole physical custody of the child. At a court appearance on December 5, 2022, the court stated, inter alia, that the mother had “relocated to Connecticut years ago” and that “[t]he [c]ourt no longer has jurisdiction.” …

The Supreme Court should not have summarily determined, without a hearing, that it lacked jurisdiction on the ground that the child had been residing in Connecticut. The court made previous custody determinations in relation to the child in conformity with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act and, therefore, would ordinarily retain exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a … . In order to determine whether it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1)(a), the court should have afforded the parties an opportunity to present evidence as to whether the child had maintained a significant connection with New York and whether substantial evidence was available in New York concerning the child’s “care, protection, training, and personal relationships” … . Matter of Holley v Mills, 2024 NY Slip Op 01542, Second Dept 3-20-24

Practice Point: Although the court in 2018 granted mother’s application to relocate to Connecticut with the child, it may have continuing jurisdiction. Therefore the court should not have decided it did not have jurisdiction over father’s petition to modify the custody order without holding a hearing about the child’s connections to New York.

Similar jurisdiction issue in a child support modification proceeding (governed by Family Court Act 580-205(a)) in Matter of Sherman v Killian, 2024 NY Slip Op 01550, Second Dept 3-20-24

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NEW FACTS RENDERED THE RECORD INSUFFICIENT FOR APPELLATE REVIEW IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; MATTER REMITTED FOR A “BEST INTERESTS OF THE CHILDREN” HEARING (FOURTH DEPT).

The Fourth Department, sending the matter back for a “best interests of the children” hearing in this termination-of-parental rights proceeding, determined new facts prohibited an adequate review:

… [T]he three oldest children, along with the father, assert that new facts and allegations warrant remittal for a new dispositional hearing to determine the best interests of those children. We may “consider . . . new facts and allegations ‘to the extent [that] they indicate that the record before us is no longer sufficient’ to determine whether termination of . . . parental rights is in [a child’s] best interests” … . * * * … [W]e conclude that the record before us is no longer sufficient to determine whether termination of respondents’ parental rights is in the best interests of those children … . Matter of Noah C. (Greg C.), 2024 NY Slip Op 01430, Fourth Dept 3-15-24

Practice Point: In a Family Court case, new facts which render the record inadequate for appellate review require remittal for a hearing.

 

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BECAUSE MOTHER HAD RELINQUISHED CUSTODY OF THE CHILD TO THE MATERNAL GRANDFATHER FOR MORE THAN 24 MONTHS, THE JUDGE SHOULD HAVE HELD A “BEST INTERESTS OF THE CHILD” HEARING BEFORE RULING ON MOTHER’S PETITION FOR SOLE CUSTODY (SECOND DEPT).

The Second Department, reversing Family Court, determined the maternal grandfather, who had custody of the child for more than 24 months with the consent of mother, demonstrated “extraordinary circumstances’ which warrant a “best interests of the child” hearing before ruling on mother’s petition for custody:

Pursuant to Domestic Relations Law § 72, “an ‘extended disruption of custody’ between the child and the parent ‘shall constitute an extraordinary circumstance'” … . “The statute defines ‘extended disruption of custody’ as including, but not limited to, ‘a prolonged separation of the respondent . . . and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents'” … . “Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody” … .

… [T]he maternal grandfather sustained his burden of demonstrating the existence of extraordinary circumstances. The evidence at the hearing established a prolonged separation of the subject child from the mother for more than 24 continuous months, during which the mother voluntarily relinquished care and control of the child and the child resided in the household of the maternal grandfather … . Matter of Elisa F. v Daniel D., 2024 NY Slip Op 01306, Second Dept 3-13-24

Practice Point: Here the child, with mother’s consent, was in the custody of the maternal grandfather for more than 24 months before mother brought the petition for sole custody. The maternal grandfather’s custody of the child for mote than 24 months constituted “extraordinary circumstances” warranting a “best interests of the child” hearing before ruling on mother’s petition.

 

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FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION IN THIS FAMILY OFFENSE CASE BECAUSE THE APPELLANT DID NOT HAVE AN “INTIMATE RELATIONSHIP” WITH THE SUBJECT CHILDREN WITHIN THE MEANING OF FAMILY COURT ACT 812 (SECOND DEPT).

The Second Department, reversing Family Court, determined the court did not have subject matter jurisdiction in this family offense case because the appellant did not have an “intimate relationship” with the subject children within the meaning of Family Court Act 812:

The “Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute” … . Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” … . “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . “Expressly excluded from the ambit of ‘intimate relationship’ are ‘casual acquaintance[s]’ and ‘ordinary fraternization between two individuals in business or social contexts'” … . “Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis, and the factors a court may consider include ‘the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship'” … .

Here, the appellant and the subject children have no direct relationship, and the appellant was only connected to the subject children through her children, who were the half-siblings of three of the subject children. The appellant and the subject children do not reside together and there was no evidence that they have any direct interaction with each other. Accordingly, there is no “intimate relationship” between the appellant and the subject children within the meaning of Family Court Act § 812(1)(e) … . Matter of Watson v Brown, 2024 NY Slip Op 01191, Second Dept 3-6-24

Practice Point: In order for Family Court to have subject matter jurisdiction over a family offense proceeding, the respondent must have an “intimate relationship” with the victims within the meaning of Family Court Act 812. The criteria for an “intimate relationship,” which was absent here, are explained in some detail.

 

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THE RECORD WAS NOT SUFFICIENT TO CONCLUDE APPELLANT IN THIS FAMILY OFFENSE PROCEEDING VALIDLY WAIVED HIS RIGHT TO COUNSEL; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court in this family offense proceeding, determined the record was insufficient to conclude the appellant had validly waived his right to counsel:

A party in a Family Court Act article 8 proceeding has the right to be represented by counsel (see Family Ct Act § 262[a][ii] …). That party, however, may waive the right to counsel, provided that the waiver is knowing, voluntary, and intelligent … . To ensure a valid waiver, the court must conduct a “searching inquiry” of that party … . While there is no rigid formula to be followed in such an inquiry, and the approach is a flexible one … , the record must demonstrate that the party “‘was aware of the dangers and disadvantages of proceeding without counsel'” … .

Here, the record is inadequate to demonstrate that the appellant validly waived his right to counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal without regard to the merits of the unrepresented party’s position … . Matter of Mendez-Emmanuel v Emmanuel, 2024 NY Slip Op 01180, Second Dept 3-6-24

Practice Point: In a family offense proceeding the respondent has a right to counsel. If the record doesn’t demonstrate a valid waiver of the right to counsel, a new hearing will be ordered.

 

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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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