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THE JUDGE GRANTED FATHER’S MOTION FOR SANCTIONS (ATTORNEY’S FEES) WITHOUT AFFORDING MOTHER AN OPPORTUNITY TO BE HEARD; THE JUDGE RULED ON FATHER’S MOTION AFTER DECIDING TO GRANT MOTHER’S MOTION FOR RECUSAL; REVERSED (SECOND DEPT). ​

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have awarded attorneys fees to father as sanctions for mother’s actions without affording mother an opportunity to be heard. In addition, the judge should not have ruled on  father’s motion for sanctions after deciding to grant mother’s motion for recusal:

… [T]he mother contends that the Family Court improvidently exercised its discretion in awarding the father reasonable attorneys’ fees without affording her a reasonable opportunity to be heard. We agree. Notably, the court never set a briefing schedule for the sanctions motion, and the court, in effect, denied the mother’s new counsel’s request to file opposition papers thereto. Under these circumstances, the mother did not receive a “reasonable opportunity to be heard” on the allegations in the sanctions motion … .

Additionally, the Family Court improvidently exercised its discretion by deciding the sanctions motion after indicating to the parties … that it intended to grant the mother’s motion for recusal. Matter of Hunte v Jones, 2023 NY Slip Op 05731, Second Dept 11-15-23

Practice Point: Here, after deciding to grant mother’s motion for recusal, the judge granted father’s motion for sanctions (attorney’s fees) without affording mother an opportunity to be heard. Reversed.

 

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THE RELIGIOUS CEREMONY IN THIS SAME-SEX MARRIAGE TOOK PLACE IN 2005 BEFORE NEW YORK RECOGNIZED SAME SEX MARRIAGE; THE CIVIL MARRIAGE TOOK PLACE IN 2011 JUST AFTER ENACTMENT OF THE MARRIAGE EQUALITY ACT (MEA); DEFENDANT SHOULD HAVE BEEN ALLOWED TO AMEND HER ANSWER TO ALLEGE THE MARRIAGE TOOK PLACE IN 2005 (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined defendant’s motion amend the answer in this divorce proceeding to allege the date of this same-sex marriage to have been when the religious ceremony took place in 2005, as opposed the date of the subsequent civil marriage in 2011, should have been granted. In 2005 same sex marriage was not recognized in New York. The Marriage Equality Act (MEA) recognizing same sex marriage was enacted in 2011 and the parties civil marriage took place shortly after the enactment. There has been no determination the MEA cannot apply retroactively. So defendant’s motion to amend is not palpably improper and does not prejudice the plaintiff:

At this stage in the litigation, we are tasked only with determining whether the defendant should be permitted to amend her answer to make the claim that the date of the parties’ marriage was July 21, 2005, not July 28, 2011. “In the absence of prejudice or surprise to the opposing party, a motion for leave to amend the [pleadings] pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment is ‘palpably insufficient’ to state a cause of action or is patently devoid of merit” … . * * *

… [T]he plaintiff failed to establish that the defendant’s proposed amendment was prejudicial to her in such a way that the defendant’s motion for leave to amend her answer should be denied. Neither the length of time between the defendant’s original answer and her motion for leave to amend, nor the fact that the amendment may affect the plaintiff’s maintenance and equitable distribution obligations, are sufficient to establish prejudice to the plaintiff … . Mackoff v Bluemke-Mackoff, 2023 NY Slip Op 05721, Second Dept 11-15-23

Practice Point: In this divorce case, the same-sex couple was married in a 2005 religious ceremony before the Marriage Equality Act (MEA). The couple was married again in a civil ceremony in 2011 shortly after the MEA was enacted. Defendant should have been allowed to amend her answer to state the marriage took place in 2005, not 2011.

 

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RESPONDENT, THE CHILDREN’S UNCLE WHO LIVED WITH THE CHILDREN’S FAMILY, WAS A FUNCTIONAL EQUIVALENT OF A PARENT AND SHOULD HAVE BEEN DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILDREN IN THIS SEXUAL ABUSE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined respondent, the children’s uncle who lived with the children’s family, was a person legally responsible for the children who had sexually abused the children:

“Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court” … . These factors are not exhaustive, “but merely illustrate some of the salient considerations in making an appropriate determination” … . * * *

… [T]he respondent, the paternal uncle of Yasmin P. and Hilary P., continually resided in the same apartment with Yasmin P. and Hilary P. for approximately five years. In addition, the respondent’s brother testified during the fact-finding hearing that the respondent told him that the respondent considered both the respondent’s family and the respondent’s brother’s family, including Yasmin P. and Hilary P., to be one big family (see Family Ct Act § 1012[g] …). The respondent also exercised control over Yasmin P.’s and Hilary P.’s environment during the relevant period by freely accessing their bedroom and the common areas of the apartment, including when Yasmin P. and Hilary P. were home and their parents were away at work or running errands, and by controlling Yasmin P. with commands or the promise of gifts. Accordingly, the evidence adduced at the fact-finding hearing established that the respondent was a person legally responsible for Yasmin P. and Hilary P. Matter of Marjorie P. (Gerardo M. P.), 2023 NY Slip Op 05734, Second Dept 11-15-23

Practice Point: Here the children’s uncle, who lived with the children’s family, should have been deemed a person legally responsible for the children in this sexual abuse proceeding.

 

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THE BIOLOGICAL MOTHER OF THE CHILD DIED BEFORE SHE AND PETITIONER WERE TO BE MARRIED; THE BIOLOGICAL FATHER ARGUED PETITIONER DID NOT HAVE STANDING TO SEEK CUSTODY AND FAMILY COURT AGREED; HOWEVER STANDING CAN BE DEMONSTRATED BY EXTRAORDINAY CIRCUMSTANCES WHICH MAY BE PRESENT; MATTER REMITTED FOR A RULING (FIRST DEPT).

The First Department, reversing Family Court, determined standing in a custody matter can be proven by extraordinary circumstances and sent the matter back for a ruling. The child’s mother died unexpectedly before she and petitioner were to be married. The petition was denied for lack of standing. However, standing can be proven by extraordinary circumstance which may be demonstrated here:

As a prerequisite to seeking custody or visitation with a child, a party must establish standing. The party may establish standing (1) as a parent pursuant to Domestic Relations Law § 70; (2) as a sibling for visitation pursuant to Domestic Relations Law § 71; (3) as a grandparent for visitation or custody pursuant to Domestic Relations Law § 72; or (4) by showing extraordinary circumstances pursuant to Matter of Bennett v Jeffreys (40 NY2d 543 [1976]) … . * * *

Family Court erred in dismissing petitioner’s custody and visitation petitions without permitting petitioner the opportunity to present evidence supporting her argument that she had standing based on extraordinary circumstances. Indeed, the Referee stated on the record during the hearing that she agreed with the biological father’s position that petitioner could only present extraordinary circumstances evidence after she established that she had standing. This is an error of law, as extraordinary circumstances is one of several bases for standing to seek custody and visitation.

Extraordinary circumstances may be found where there has been “a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child” … . Matter of Lashawn K. v Administration for Children’s Servs., 2023 NY Slip Op 05662, First Dept 11-9-23

Practice Point: Standing to bring a custody petition may be demonstrated by extraordinary circumstances. Here the biological mother died unexpectedly before she and petitioner were to be married. The biological father successfully argued petitioner did not have standing. The matter was sent back for Family Court for a ruling on whether petitioner demonstrated standing based upon extraordinary circumstances.

 

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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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