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FATHER DID NOT DEMONSTRATE THE CHILD WAS CONSTRUCTIVELY EMANCIPATED; THEREFORE FATHER’S SUPPORT OBLIGATION SHOULD NOT HAVE BEEN TERMINATED (SECOND DEPT).

The Second Department, reversing Family Court, determined father did not meet his burden of proof in his attempt to demonstrate the constructive emancipation of the child such that his support obligation should be terminated:

“It is fundamental public policy in New York that parents are responsible for their children’s support until age 21” … . “However, under the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and [parental access] may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment” … . “[W]here it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her parental access rights, the child will not be deemed to have abandoned the parent” … . “The burden of proof as to emancipation is on the party asserting it” … .

Here, contrary to the father’s contention, the evidence adduced at the hearing failed to demonstrate that he made serious efforts to maintain a relationship with the child during the relevant time period, or that the child actively abandoned her relationship with him … . Matter of Rosenkrantz v Rosenkrantz, 2023 NY Slip Op 05609, Second Dept 11-8-23

Practice Point: The proof requirements for constructive emancipation of a child were not met; criteria explained.

 

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MOTHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED UPON FATHER’S FAILURE TO APPEAR; FATHER’S ATTORNEY EXPLAINED FATHER’S ABSENCE AND REQUESTED AN INQUEST; AN APPEAL FROM AN ORDER ENTERED UPON A PARTY’S DEFAULT BRINGS UP FOR REVIEW ONLY THE CONTESTED MATTERS BEFORE THE TRIAL COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition for sole custody should not have been granted upon father’s failure to appear. Father’s attorney explained father’s absence and asked that the matter be set down for an inquest. The Second Department noted that, upon appeal from an order made upon a party’s default, only the contested matters before the trial court can be heard:

“A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … . Generally, the court’s determination should be made only after “a full and plenary hearing and inquiry” … or, where a party failed to appear, after an inquest … .

Here, the Family Court granted the mother’s petition to modify the prior order, upon the father’s default, without receiving any testimony or other evidence, despite the fact that the father’s attorney proffered a reasonable explanation for the father’s absence and that the father did not have a history of missing court dates … . Under the circumstances, the court improvidently exercised its discretion in denying the application of the father’s attorney to set the matter down for an inquest … .  Matter of Otero v Walker, 2023 NY Slip Op 05607, Second Dept 11-8-23

Practice Point: Generally where a party defaults in a custody matter, an inquest should be held before any ruling.

Practice Point: Upon appeal from an order made upon a party’s default, only the contested matters before the trial court come up for review.

 

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THE MAJORITY HELD THE APPELLATE DIVISION SHOULD HAVE CONSIDERED MOTHER’S APPEAL OF FAMILY COURT’S FINDING MOTHER DID NOT HAVE STANDING TO BRING HER CUSTODY/HABEAS CORPUS PETITION STEMMING FROM THE OUT-OF-STATE FATHER’S FAILURE TO RETURN THE CHILDREN; THE MAJORITY SENT THE CASE BACK TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE STANDING ISSUE; THREE DISSENTERS ARGUED FAMILY COURT ERRED WHEN IT DISMISSED THE HABEAS CORPUS PETITION BECAUSE NO CUSTODY ORDER WAS IN PLACE (CT APP).

The Court of Appeals, reversing the Appellate Division, over a three-judge comprehensive dissent, determined the Appellate Division erred when it refused to consider mother’s appeal of the denial of her habeas corpus petition seeking the return of her children. The children visited father out-of-state and one of them was not allowed to return. The Appellate Division erred when it found it did not have subject matter jurisdiction for the appeal. The matter was sent back for consideration of mother’s standing to bring the habeas corpus petition. The dissenters argued the habeas corpus petition was erroneously dismissed by Family Court on the ground that mother did not have standing because there was no custody order in place for the children. But the majority wanted the development of a record on the standing issue:

… Family Court denied the mother’s applications both for sole custody and habeas corpus relief. As the parties who have appeared before us agree, the Appellate Division erred in dismissing the mother’s ensuing appeal for lack of subject matter jurisdiction. By dismissing the appeal upon a motion, and upon an undeveloped record, without full briefing and without providing all parties the opportunity to appear, the Appellate Division has rendered impossible meaningful appellate review of the weighty issues raised in this case. To the extent that the Appellate Division’s order on the motion to dismiss could be read, as the dissenters read it, to be a determination that the mother lacked standing to seek habeas corpus relief without an order of custody in place, the issue of standing did not impact the subject matter jurisdiction of the Appellate Division … . Regardless of whether that Court had the “power to reach the merits,” an issue on which we express no opinion, the Court did not lack the “competence to entertain” the appeal … . Therefore, we remit to the Appellate Division for an expeditious determination on the merits of the standing question presented herein and, if warranted, disposition of any other issues that the parties may raise. Matter of Celinette H.H. v Michelle R., 2023 NY Slip Op 05303, CtApp 10-19-23

Practice Point: The majority held the Appellate Division should not have refused to consider mother’s appeal on the ground she did not have standing to bring her custody/habeas corpus petition. The Appellate Division did not lack subject matter jurisdiction. The matter was sent back for a ruling on the standing question.

 

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FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (FIRST DEPT). ​

The First Department, reversing Family Court, held the judge did not make the required “searching inquiry” to determine whether father was knowingly, intelligently and voluntarily waiving his right to counsel. Father had made a motion to vacate a final order of protection:

… [T]he court failed to conduct the requisite “searching inquiry” to ensure that the father’s waiver of his right to counsel was “knowing, intelligent, and voluntary” … . While the court advised both parties that they had the right to be represented by counsel, could seek an adjournment to speak to one, and that one might be appointed to them, the court did not question the father about his background, such as age, education, or occupation, and any prior experience of being a pro se litigant or being exposed to legal procedures … . It also did not caution the father against self-representation, detail the dangers and disadvantages of doing so, or inform him that he would have to follow the same legal rules as if he had been represented … . Thus, the court failed to evaluate the father’s competency to waive counsel and his understanding of the consequences of self-representation … . Matter of Marlene H. v Loren D.2023 NY Slip Op 05225, First Dept 10-17-23

Practice Point: The questions a judge must ask before a waiver of the right counsel will be deemed valid are concisely explained.

 

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THE MAJORITY DETERMINED MOTHER’S PARENTAL RIGHTS WERE PROPERLY TERMINATED; MOTHER AND THE DISSENT ARGUED THE DEPARTMENT OF SOCIAL SERVICES DISCOURAGED HER FROM COMMUNICATING WITH IT WELL BEFORE THE ABANDONMENT PERIOD (SIX MONTHS BEFORE THE FILING OF THE TERMINATION PETITION) AND THE JUDGE ERRONEOUSLY PROHIBITED HER FROM PRESENTING EVIDENCE FROM BEFORE THE ABANDONMENT PERIOD (SECOND DEPT).

The Second Department, over an extensive and comprehensive dissent, determined Family Court properly terminated mother’s parental rights. The question whether a parent has abandoned a child focuses on the six months immediately prior to the filing of the petition to terminate parental rights. Mother argued that the Department of Social Services had discouraged her from communicating with the department and the court had cut off her parental access well before the statutory abandonment period. The dissent agreed with mother’s arguments and supported a new fact-finding hearing:

… [T]he mother failed to demonstrate that the petitioner prevented or discouraged her from communicating with it or with the child, or that she was otherwise unable to do so … . The mother’s contention that the petitioner prevented her from communicating with the child by suspending her parental access is without merit, as it was the Family Court that suspended the mother’s parental access with the child, not the petitioner. Further, the mother was still obligated to maintain contact with the petitioner, which had legal custody of the child, even though the court had suspended her parental access … . * * *

From the dissent:

In this proceeding to terminate the mother’s parental rights on the ground of abandonment, the mother, who had been precluded from visiting with the subject child, asserted that her conduct during the statutory abandonment period did not evince an intent to abandon the child because the petitioner had prevented and discouraged her from maintaining contact with the child and with the petitioner. The Family Court erroneously ruled that the mother could not present evidence regarding events that occurred prior to the statutory abandonment period and erroneously precluded the mother from eliciting such evidence on cross-examination of the petitioner’s witnesses and during her own testimony. The court’s incorrect ruling infringed upon the mother’s right to present evidence regarding the central issue in the proceeding. Matter of Abel J.R. (Estilia R.), 2023 NY Slip Op 05139, Second Dept 10-11-23

Practice Point: To demonstrate abandonment of a child, the proof focuses on the six months before the petition to terminate parental rights was filed. Here mother and the dissent argued the Department of Social Services discouraged her from communicating with it about the child well before the six-month abandonment period. Mother and the dissent argued the Family Court judge erred by limiting proof from prior to the abandonment period. The majority noted mother was allowed to present pre-abandonment-period evidence and that evidence did not negate the proof of abandonment.

 

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THE PARTIES’ SEPARATION AGREEMENT DID NOT MAKE IT CLEAR THE PARTIES KNOWINGLY OPTED OUT OF THE LEVEL OF CHILD SUPPORT REQUIRED BY THE CHILD SUPPORT STANDARDS ACT (CSSA); THEREFORE THE SUPPORT PROVISIONS IN THE AGREEMENT ARE NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the separation agreement did not include the required language indication the parties agree to opt out of the level of child support required by the Child Support Standards Act (CSSA):

“Parties to a separation agreement are free to ‘opt out’ of the provisions of the CSSA so long as their decision is made knowingly” … . “To ensure that waivers of the statutory provisions of the CSSA are truly knowingly made, Domestic Relations Law § 240(1-b)(h) requires that, in order to be valid, a stipulation must recite that the parties have been made aware of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount. Where the stipulation deviates from the basic child support obligation, it must specify what the presumptive amount would have been and the reason for the deviation” … .

Here … the provisions in the parties’ separation agreement relating to the child support obligations with respect to one child did not contain the specific recitals mandated by the CSSA, and the record does not demonstrate that the plaintiff’s agreement to said provisions was made knowingly. … [T]he provisions are not enforceable … . Sayles v Sayles, 2023 NY Slip Op 04968, Second Dept 9-4-23

Practice Point: Parties to a separation agreement can “opt out” of the level of child support required by the Child Support Standards Act (CSAA). But if the agreement doesn’t include recitals which make it clear the parties knowingly opted out, the agreement is not enforceable.

 

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DEFENDANT HAD THE RIGHT TO ASSIGNED COUNSEL IN THIS CIVIL CONTEMPT PROCEEDING STEMMING FROM DEFENDANT’S FAILURE TO PAY CHILD SUPPORT; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY TO SEE IF DEFENDANT QUALIFIED FOR ASSIGNED COUNSEL PRIOR TO ISSUING THE ORDER OF COMMITMENT (SECOND DEPT).

The Second Department, reversing the order of commitment in this matrimonial case, noted that defendant faced possible jail time for civil contempt stemming from a failure to pay child support. Therefore defendant had a right to assigned counsel if found indigent. The judge should have have ascertained defendant’s financial condition:

“In general, the respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment, however short, has the right to the assignment of counsel upon a finding of indigence” … . “Moreover, a parent has the statutory right to counsel in a proceeding in which it is alleged that he or she has willfully failed to comply with a prior child support order” … .

Here, the defendant informed the Supreme Court on multiple occasions that he could not afford to retain an attorney. Therefore, prior to issuing an order of commitment, the court should have inquired into the defendant’s current financial circumstances to determine whether he had become eligible for assigned counsel … . Hoffman v Hoffman, 2023 NY Slip Op 04959, Second Dept 10-4-23

Practice Point: Here defendant was found in civil contempt for failure to pay child support. Because the judge was going to order jail-time, defendant had the right to assigned counsel if he could not afford an attorney. The judge should have conducted an inquest to determine defendant’s financial condition before issuing the order of commitment.

 

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A CONFLICT BETWEEN TWO PROVISIONS OF THE POSTNUPTIAL AGREEMENT REQUIRED A TRIAL TO RESOLVE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined there was a conflict between two provisions of the postnuptial agreement which could only be resolved by a trial:

“When parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms” … . If a contract’s provisions are subject to more than one or conflicting reasonable interpretations, the agreement will be considered ambiguous, requiring a trial on the parties’ intent … . Here, the language of the agreement allows for more than one reasonable interpretation of the parties’ intentions when they entered into the agreement. The language regarding distribution of the parties’ assets is specifically contingent on the occurrence of the operative event otherwise without force or effect. This conflicts with further language that requires the wife to assume certain debt within 30 days of the execution of the agreement. These interrelated provisions are ambiguous as they are “reasonably or fairly susceptible of different interpretations or may have two or more different meanings” (id. [internal quotation marks omitted]). Accordingly, the parties’ intent underpinning these conflicting provisions must be addressed at trial. Bich v Bich, 2023 NY Slip Op 04918. First De[t 10-3-23

Practice Practice: Conflicting provisions in an agreement render the agreement ambiguous requiring a trial.

 

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THE PARTIES’ STIPULATION REQUIRED PLAINTIFF TO FURNISH PAY STUBS AS A PREREQUISITE FOR HER RECEIVING CHILD SUPPORT; SUPREME COURT SHOULD NOT HAVE HELD THAT INFORMAL TIMESHEETS WERE THE FUNCTIONAL EQUIVALENT OF PAY STUBS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the requirement in the parties’ stipulation that, in order to receive child support, defendant must demonstrate her employment by furnishing pay stubs was not met by furnishing time sheets:

The parties’ stipulation of August 24, 2021, provides in pertinent part that plaintiff will pay defendant $2,000 per month “as a contribution towards [defendant’s] childcare expenses.” Plaintiff’s obligation to make the payment is conditioned upon defendant being “employed by a nonrelative” and upon her periodic furnishing to plaintiff of “paystub[s]” documenting such employment. The stipulation requires defendant to provide plaintiff with her first paystub from a given employer, the first and last paystub of each calendar year, and the paystub covering July 1 of each year. Defendant moved for an order directing plaintiff to make a childcare payment based on her provision of timesheets purporting to document childcare services that she performed for Matthew Kleban. Kleban is the father of two girls, one of whom is a friend of the parties’ daughter.

… [T]he parties, both represented by counsel, entered into a stipulation that expressly conditioned plaintiff’s obligation to make childcare payments upon defendant’s production of “paystub[s]” to document her employment by a nonrelative. The term “paystub” is defined as “a record that is given to an employee with each paycheck and that shows the amount of money earned and the amount that was removed for taxes, insurance costs, etc.” (https://merriam-webster.com/dictionary/paystub); accord Black’s Law Dictionary 1364 [11th ed 2019]). Under this definition, and based upon the circumstances herein, the informal timesheets produced by defendant plainly do not qualify as “paystubs.” In holding that plaintiff’s childcare payment obligation was nonetheless triggered under the stipulation because the timesheets were the “functional equivalent” of paystubs, the motion court impermissibly changed the meaning of the parties’ agreement by adding or excising terms under the guise of construction … . Franklin v Franklin, 2023 NY Slip Op 04925, First De[t 10-3-23

Practice Point: Here the judge’s finding that informal timesheets were the functional equivalent of pay stubs impermissibly changed the meaning of the parties’ stipulation. The stipulation required plaintiff to prove she was employed as a prerequisite for her receipt of child support.

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING RESPONDENT COMMITTED THE FAMILY OFFENSE OF HARASSMENT SECOND DEGREE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the family offense of harassment second degree:

“A petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense” … . To establish that respondent committed acts constituting harassment in the second degree, petitioner was required to establish that respondent engaged in conduct that was intended to harass, annoy or alarm petitioner, that petitioner was alarmed or seriously annoyed by the conduct, and that the conduct served no legitimate purpose (see Penal Law § 240.26 [3]). Here, the evidence presented by petitioner at the hearing consisted primarily of petitioner’s testimony that respondent posted “negative posts and stuff” on social media about him including, in particular, two posts on Facebook about an unnamed “ex” that he believed referred to him, after which respondent blocked him from viewing her posts. We conclude under the circumstances of this case that the evidence presented by petitioner failed to establish by a preponderance of the evidence that respondent engaged in acts constituting harassment in the second degree … . Matter of Geremski v Berardi, 2023 NY Slip Op 04883, Fourth Dept 9-29-23

Practice Point: Here the finding respondent committed the family offense of harassment second degree was not supported by the preponderance of the evidence.

 

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