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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.

 

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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.

 

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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.

 

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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.

 

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THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT AMBIGUOUS AND NEED NOT BE REFORMED; THE STIPULATION WHICH WAS INCORPORATED BUT NOT MERGED INTO THE DIVORCE JUDGMENT CANNOT BE REFORMED PURSUANT TO A MOTION, A PLENARY ACTION IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation that was incorporated but not merged into the divorce judgment was not ambiguous and should not have reformed the stipulation based upon a mutual mistake. The stipulation was not ambiguous and required the husband to share his pension when he turned 62. In addition, reformation of the stipulation was not appropriate pursuant to a motion. A plenary action is required to reform stipulation which is incorporated but not merged into the judgment of divorce:

… Supreme Court should have rejected the plaintiff’s contention that the stipulation of settlement was ambiguous. The interpretation of the stipulation advanced by the plaintiff would render meaningless the terms of the stipulation providing that distribution of pension benefits to the plaintiff would commence in the future, when the defendant reached the age of 62 … . Inasmuch as the language of the stipulation disclosed the parties’ intent to defer the plaintiff’s pension distribution until the defendant reached age 62, at a time he would have been eligible for regular service retirement benefits, and is not subject to more than one reasonable interpretation, the agreement is not ambiguous … .

… [T]o the extent that the Supreme Court determined that the stipulation of settlement was affected by a mutual mistake, reformation was not appropriate. A motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a judgment of divorce. Rather, the plaintiff was required to commence a plenary action to reform the stipulation … . In any event, reformation of the stipulation was unwarranted, as the parties’ mistake regarding the category of benefits the defendant would receive did not “involve a fundamental assumption of the contract” … . Anderson v Anderson, 2023 NY Slip Op 06108, Second Dept 11-29-23

Practice Point: Here the judge should not have determined the stipulation incorporated but not merged into the judgment of divorce was ambiguous because it was subject to only one interpretation.

Practice Point: A stipulation which is incorporated but not merged into the judgment of divorce cannot be reformed pursuant to a motion. A plenary proceeding must be commenced.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO SCHEDULE VISITATION (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the judge should not have delegated the court’s authority to schedule visitation:

… Family Court improperly granted the grandfather and the father of the older child sole authority to determine the dates for at least four consecutive days of visitation in the months of July and August. Allowing the grandfather and the father of the older child to determine periods of summer visitation for the children without the agreement of the mother, the custodial parent, constitutes “an improper delegation of authority” … . In view of the sparse state of the record, as well as the passage of time since the entry of the orders on appeal, we remit solely for the purpose of Family Court setting a schedule for the summer visitation. Matter of Daniel RR. v Heather RR., 2023 NY Slip Op 06011, Third Dept 11-22-23

Practice Point: Here the court should not have delegated the authority to schedule visitation to grandfather and father without the agreement of mother, the custodial parent.

 

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FATHER IGNORED COMPULSORY DISCOVERY OF HIS FINANCIAL ABILITY TO PAY SUPPORT; FATHER IS PRECLUDED FROM OFFERING SUCH EVIDENCE IN THE SUPPORT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined father should be precluded from presenting any evidence of his financial ability to pay support because he submitted no financial evidence in the discovery phase:

Family Court Act § 424-a “mandates the compulsory disclosure by both parties to a support proceeding of ‘their respective financial states,’ through the provision of tax returns, pay stubs, and sworn statements of net worth” … . “Where a respondent in a child support proceeding fails, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424-a, ‘the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to [the] respondent’s financial ability to pay support'” … .

Here, the father failed to provide a sworn statement of net worth, a tax return, or a pay stub, and he did not offer an explanation for his failure to do so. Since the father failed, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act [*2]§ 424-a, the Family Court was required to either grant the relief demanded in the petition or preclude the father from offering evidence as to his financial ability to pay support … . Under the circumstances of this case, the court should have precluded the father from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child, as requested by the mother … . Matter of Grant v Seraphin, 2023 NY Slip Op 06044, Second Dept 11-22-23

Practice Point: In support proceedings, discovery of a party’s financial ability to pay support is compulsory. A party who fails to provide such discovery may be precluded from presenting any financial evidence.

 

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MOTHER’S DECLINING HEALTH WAS A FACTOR IN THE COURT’S GRANTING MOTHER’S PETITION TO RECOCATE WITH THE CHILDREN NEAR HER MOTHER IN TENNESSEE; THE DISSENT ARGUED THE REFEREE DID NOT ADEQUATELY CONSIDER THE EFFECT ON VISITATION WITH FATHER AND MOTHER DID NOT MEET HER BURDEN TO SHOW THE CHILDREN WOULD BE BETTER CARED FOR OR BETTER EDUCATED IN TENNESSEE (FOURTH DEPT).

The Fourth Department, over a dissent, determined mother’s petition for sole custody and permission to relocate to Tennessee was properly granted:

... [M]other testified at the hearing that she has been the primary caregiver of the children and that her health has been steadily declining. She further established that the maternal grandmother, who moved to Tennessee in 2021, has provided her with extensive financial assistance, as well as assistance in caring for herself and the children, and that the maternal grandmother would continue to do so if the mother were to relocate closer to the maternal grandmother … . Further, the record establishes that the father has no “accustomed close involvement in the children’s everyday life” … and thus we conclude that the need to “give appropriate weight to . . . the feasibility of preserving the relationship between the noncustodial parent and [the] child[ren] through suitable visitation arrangements” does not take precedence over the need to give appropriate weight to the necessity for the relocation … .

From the dissent:

… [T]he Referee gave disproportionate weight to certain factors and largely ignored the impact of the move on the children’s future contact with the father despite that factor weighing heavily against relocation, given the distance between Clinton County, New York, where the father resides, and Tennessee … . …

… [M]other did not establish that the children’s lives will be enhanced economically, emotionally, or educationally by the move, even if the move would not diminish them … . The mother offered no testimony that the children would receive a better education in Tennessee, and there was no testimony comparing schools in each location … .

The mother also offered no explanation as to why she and the children would be better cared for in Tennessee by the maternal grandmother—who testified that she works approximately 45 to 50 hours per week at multiple jobs in addition to caring for her son’s newborn child—than in New York by the certified caregiver the mother was approved for but has never utilized … . Matter of Martin v Martin, 2023 NY Slip Op 05893, Fourth Dept 11-17-23

Practice Point: Here mother’s declining health was a factor granting mother’s petition to relocate near her mother in Tennessee. The dissent argued the referee ignored the impact of the move on the children’s contact with father and mother did not demonstrate the children would be better cared for or better educated in Tennessee.

 

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FATHER’S PETITION FOR MODIFICATION OF CUSTODY BASED PRIMARILY UPON INCREASED TRAVEL TIME BECAUSE OF MOTHER’S MOVE SHOULD NOT HAVE BEEN DISMISSED; THE MAJORITY NOTED MANY REASONING ERRORS AND ORDERED A NEW HEARING IN FRONT OF A DIFFERENT JUDGE; TWO-JUSTICE DISSENT (THIRD DEPT) ​

The Third Department, reversing Family Court, over a two-justice dissent, determined father’s petition for a modification of the custody arrangement based upon mother’s move and the consequent increase in travel times should not have been dismissed. The matter was sent back for a new fact-finding hearing before a different judge:

Applying the correct standard at this procedural stage — providing the father the benefit of every reasonable inference and resolving all credibility questions in his favor … — the father’s proof sufficiently established that, since the entry of the 2012 order, the mother had moved to a different county, which move significantly increased the time and distance required to effectuate custodial exchanges, and that, in the nine years since said order, the mother routinely refused to agree to holiday parenting time for the father. Consequently, the father demonstrated a change in circumstances sufficient to overcome a motion to dismiss … . Matter of Shayne FF. v Julie GG., 2023 NY Slip Op 05767, Third Dept 11-16-23

Practice Point: Increased travel time because of mother’s move supported father’s petition for a modification of custody. The majority found many reasoning errors and ordered a new hearing before a different judge. A two-justice dissent argued the petition was properly dismissed.

 

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IN A PROCEEDING INTERRUPTED BY COVID THE JUDGE RULED ON FATHER’S PETITION TO RELOCATE WITH THE CHILD AND MOTHER’S CROSS-PETITION FOR SOLE CUSTODY WITHOUT COMPLETING THE HEARING; REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have ruled on father’s petition to locate with the child to New Jersey and mother’s cross-petition for sole custody without completing the hearing:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … . Here, the Family Court erred in making a final custody determination without completing the hearing on the father’s petition and the mother’s cross-petition in order to determine what arrangement was in the best interests of the child … . Matter of Janvier v Santana-Jackson, 2023 NY Slip Op 05732 Second Dept 11-15-23

Practice Point: In the midst of COVID the judge ruled on father’s petition to relocate with the child and mother’s cross-petition for sole custody without completing the related hearing. Reversed.

 

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