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IT WAS AN ABUSE OF DISCRETION TO DENY FATHER’S MOTION TO VACATE HIS DEFAULT IN THIS CUSTODY CASE; THE USUAL RULES FOR VACATION OF A DEFAULT ARE RELAXED IN CHILD CUSTODY MATTERS (SECOND DEPT).

The Second Department, reversing Family Court, determined it was an abuse of discretion to deny father’s motion to vacate his default in this custody proceeding. The Second Department noted that the strict rules surrounding vacation of a default are relaxed in custody matters:

Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … , “the law favors resolution on the merits in child custody proceedings” … . Thus, the “general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody” … .

Under the circumstances presented here, including the brief period between the father’s default and his motion to vacate his default, and in light of the policy favoring resolutions on the merits in child custody proceedings, the Family Court improvidently exercised its discretion in denying the father’s motion to vacate the order of custody and parental access … entered upon his failure to appear … . Matter of Orobona v Cunningham, 2023 NY Slip Op 04594, Second Dept 9-13-23

Practice Point: Because resolution on the merits is the policy favored in child custody matters, the usual rules surrounding vacation of a default are relaxed.

 

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PETITIONER WAS NOT REQUIRED TO PROVE THE SON ACTUALLY SEXUALLY ABUSED THE DAUGHTER TO MAKE A NEGLECT FINDING BASED UPON MOTHER’S LEAVING THE DAUGHTER UNDER THE SON’S SUPERVISION; THE DAUGHTER’S ALLEGATIONS SHE WAS SEXUALLY ABUSED WERE DEEMED SUFFICIENTLY CORROBORATED BY HER KNOWLEDGE ABOUT SEX AND PORNOGRAPHY; STRONG DISSENT (SECOND DEPT).

The Second Department, reversing Family Court, over a detailed and comprehensive dissent, determined the neglect petition was supported by the evidence. It was alleged that mother left her young daughter in the care of her 15-year-old son despite concerns about the son’s sexual behavior. Family Court held the Administration for Children’s Services (ACS) was required to, but did not, prove the son sexually abused his sister. Family Court also held that the sister’s claims her brother sexually abused her were not corroborated. The dissent agreed with Family Court. The majority held ACS was not required to prove the alleged sexual abuse took place and the sister’s claims of sexual abuse were corroborated by her knowledge about sex:

A finding of neglect is warranted when a parent allows the child to be harmed or placed in substantial risk of harm … . A parent, who, by willful omission, fails to protect a child, and as a consequence places the child at imminent risk of harm, demonstrates a fundamental defect in understanding the duties and obligations of parenthood and creates an atmosphere detrimental to the physical, mental, and emotion well-being of the child … . Here, ACS contended that the mother neglected the child because, despite her knowledge of the son’s sexually inappropriate behavior, the mother failed to provide proper care and supervision for the child by leaving the child alone with the son. * * *

This Court has found that evidence of a change in the demeanor of a child, sexual references by a child which are not age appropriate, and detailed, consistent out-of-court statements of sexual abuse can be sufficient to corroborate a child’s out-of-court statements of sexual abuse … . For example, in Matter of Osher W. (Moshe W.) (198 AD3d 904), this Court determined that, “‘[a]lthough the mere repetition of an accusation does not, by itself, provide sufficient corroboration, some degree of corroboration can be found in the consistency of the out-of-court repetitions'” … . Here, the child’s statements to school personnel, her godmother, and the caseworkers were consistent and detailed about the sexual activity that the son had engaged in with her. In addition, both the mother’s acknowledgment at the hearing that the son admitted to her that he watched pornography in the child’s presence and the son’s admission to the first caseworker that he had his own pornography account directly corroborated the child’s statements that the son watched pornography in her presence. The child’s knowledge of sexual behavior despite her age—her depiction to school personnel of the son’s pumping motion with his penis and her discussion of sex, which she called “polo” to the first caseworker, describing it as where “a man and a woman they don’t have any clothes on and they put their private parts into each other,” was further corroboration of her out-of-court statements about the son’s sexual abuse of her. Moreover, the records submitted into evidence demonstrate that the child, who had been happy and talkative at the hospital, became withdrawn and quiet when asked about the sexual abuse. Matter of Jada W. (Fanatay W.), 2023 NY Slip Op 04318, Second Dept 8-16-23

Practice Point: This decision discusses in depth the proof requirements for neglect based upon a mother’s leaving her daughter under the supervision of her son, despite concerns about the son’s sexual behavior (here it was not necessary to prove the sexual abuse actually occurred).

Practice Point: In addition, the decision discusses in depth the nature of proof sufficient for corroboration of a child’s allegations of sexual abuse (here the child’s knowledge about sex was deemed sufficient corroboration).

 

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THE GRANDPARENTS’ PETITION FOR VISITATION SHOULD NOT HAVE BEEN DENIED ABSENT A FULL BEST INTERESTS OF THE CHILD HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the court should not have dismissed the grandparents’ petition for visitation before holding a best interests of the child hearing:

… [T]he court erred in granting respondents’ motion and in terminating the hearing before petitioners had completed the presentation of their case … . “[E]ven where . . . a grandparent has established standing to seek visitation, ‘a grandparent must then establish that visitation is in the best interests of the grandchild . . . Among the factors to be considered are whether the grandparent and grandchild have a preexisting relationship, whether the grandparent supports or undermines the grandchild’s relationship with his or her parents, and whether there is any animosity between the parents and the grandparent’ ” … . Visitation and “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’ ” … , “[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of the child[‘s] best interests” … . Upon our review of the record, we conclude that, “[a]bsent a[ full] evidentiary hearing, . . . the court here lacked sufficient evidence . . . to enable it to undertake a comprehensive independent review of the [children]’s best interests” … . We therefore reverse the order, deny the motion, reinstate the petitions, and remit the matter to Supreme Court for a full evidentiary hearing on the petitions. DeMarco v Severance, 2023 NY Slip Op 04284, Fourth Dept 8-11-23

Practice Point: The grandparents’ petition for visitation should not have been dismissed absent a full best interests of the child hearing.

 

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THE CHILD HAD LIVED WITH HIS GRANDPARENTS FOR HIS ENTIRE LIFE; THE GRANDPARENTS DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES NECESSITATING A BEST INTERESTS OF THE CHILD HEARING PRIOR TO RULING ON MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY; TWO-JUSTICE DISSENT; MATTER REMITTED FOR A HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, over a two-justice dissent, determined the grandparents established extraordinary circumstances necessitating a best interests hearing before a ruling on mother’s request for a modification of custody. Mother sought to regain custody of the child who was eight years old and had resided with the grandparents for his entire life:

It is undisputed that the child, who was eight years old at the time of the hearing, had lived with the grandparents for his entire life in the only home he has ever known; the child expressed a strong desire to continue residing with his grandparents and the AFC adheres to that position on appeal; the mother and the father both suffered from severe substance abuse problems for years and were unable to care for the child on their own; the mother failed to contact the child for a period of 18 months before resuming visitation in January 2018; the child’s half-sister also resided with the grandparents and the child developed a sibling relationship with her; and “the grand[parents] ha[ve] taken care of the child for most of his life and provided him with stability” …  Additionally, according to the AFC, the child had “developed a strong emotional bond with the grand[parents]” … .

… [W]e conclude that, “even if the prolonged separation alone is entitled to little significance here, the combination of that factor along with others present on this record sufficiently establish the existence of extraordinary circumstances” … , and that the court’s contrary determination is not supported by a sound and substantial basis in the record.

… [W]e remit the matter to Family Court for a new hearing to determine whether the modifications of the prior order sought by the mother are in the best interests of the child … . Matter of Tuttle v Worthington, 2023 NY Slip Op 04282, Fourth Dept 8-11-23

Practice Point: The child’s grandparents made a showing of extraordinary circumstances requiring a best interests of the child hearing before ruling on mother’s petition for a modification of custody. The child, eight years old, had lived his entire life with his grandparents.

 

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UNDER THE “AGE 29 LAW” MEDICAL-INSURANCE COVERAGE FOR PLAINTIFF’S CHILD WAS AVAILABLE THROUGH PLAINTIFF’S EMPLOYER’S PLAN UNTIL THE CHILD TURNED 29; THEREFORE THE STIPULATED ORDER IN THE DIVORCE PROCEEDING REQUIRING PLAINTIFF TO COVER THE CHILD UNDER THE PLAN FOR AS LONG AS THE LAW ALLOWS REQUIRED COVERAGE TO AGE 29; THE ARGUMENT THAT THE PARTIES CONTEMPLATED A CUT-OFF AT AGE 26 PURSUANT TO THE AFFORDABLE CARE ACT WAS REJECTED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the provisions of a stipulated order in a divorce proceeding (section 6.3)  providing that plaintiff would pay for medical insurance for a child (T.D.) for as long as coverage was available under the employer’s family plan were unambiguous and must be enforced. Because the “Age 29” law allowed the child to remain covered by plaintiff’s employer’s plan until age 29. plaintiff was obligated to pay for that coverage. The argument that the provision was ambiguous allowing extrinsic evidence that the parties contemplated only the Affordable Care Act’s cut-off at age 26 was rejected: The “Age 29” act was passed before the issuance of the stipulated order:

… [T]he practical and reasonable interpretation of § 6.3 is that, to the extent plaintiff can maintain health insurance for T.D. through his employer, he is required to do so as long as any relevant law permits coverage for T.D. As he acknowledges in his brief (and as the evidence he submitted in opposition to the motion establishes), T.D. has coverage under the same health insurance plan provided by plaintiff’s employer to its employees. Thus, by virtue of the fact that plaintiff has health insurance through his employer, Age 29 Law coverage is available to T.D. B.D. v E.D., 2023 NY Slip Op 03971, First Dept 7-27-23

Practice Point: Here the stipulated order entered in the divorce proceedings required plaintiff to provide medical insurance to the child as long as the child could be covered by law under the employer’s plan. The Age 29 Law allowed coverage until age 29. The argument that the stipulated order was ambiguous allowing extrinsic proof that the parties contemplated only the age 26 cut-off under the Affordable Care Act was rejected.

 

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A MOTION TO MODIFY THE CUSTODY PROVISIONS IN A SETTLEMENT AGREEMENT, WHERE THERE ARE CONTESTED FACTS, SHOULD NOT BE GRANTED WITHOUT A FULL HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion for a modification of custody allowing mother the relocate should not have have been granted without a hearing:

“Since a court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed” … . “This allows the court to fulfill its duty to make an enlightened, objective and independent evaluation of the circumstances” … . “[A]s a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing” … .  Rizea v Rizea, 2023 NY Slip Op 03935, Second Dept 7-26-23

Practice Point: Any modification of custody, where there are contested facts, requires a full hearing.

 

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DESPITE MOTHER’S DEFAULT, CUSTODY SHOULD NOT HAVE BEEN AWARDED WITHOUT A HEARING AND FINDINGS ON THE BEST INTERESTS OF THE CHILD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although mother defaulted, the court should not have made a custody ruling without a hearing and findings on the best interests of the child:

Courts may generally proceed by default when a party has failed to comply with an order of the court … . “This authority, however, in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests, upon consideration of the totality of the circumstances, after a full and comprehensive hearing and a careful analysis of all relevant factors” … . “A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … . “Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court, the law favors resolution on the merits in child custody proceedings” … .

Here, the Supreme Court made a custody determination without a hearing and without making any specific findings of fact regarding the best interests of the child. Under the circumstances, that branch of the mother’s motion which was to vacate an order .. awarding custody to the paternal grandmother, should have been granted in the interest of justice … . Accordingly, we remit the matter … for a hearing and a new determination thereafter of the paternal grandmother’s petition for custody of the child, to be held with all convenient speed … . Matter of Trammell v Gorham, 2023 NY Slip Op 03923, Second Dept 7-26-23

Practice Point; Even in the face of a parent’s default, a custody award should not be made without a hearing and findings on the best interests of the child.

 

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THE RECORD DOES NOT REFLECT THAT MOTHER IN THIS CHILD-SUPPORT PROCEEDING WAS INFORMED OF HER RIGHT TO COUNSEL, HER RIGHT TO AN ADJOURNMENT TO RETAIN COUNSEL, OR HER WAIVER OF THAT RIGHT; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court, determined the Support Magistrate erred by not, on the record, informing mother of her right to counsel in this proceeding brought by father seeking child support from mother:

The Support Magistrate erred in failing to advise the mother that she had “an absolute right to be represented by counsel at the hearing at [her] own expense, and that [s]he was entitled to an adjournment for the purpose of retaining the services of an attorney” … . The Support Magistrate further erred in proceeding with the hearing without an explicit waiver of the right to counsel from the mother as there is no word or act in the record upon which the Family Court could have concluded that the mother explicitly waived that right … . Matter of Moor v Moor, 2023 NY Slip Op 03918, Second Dept 7-26-23

Practice Point: Mother appeared pro se in this proceeding before a Support Magistrate brought by father for child support from mother. There is nothing on the record indicating mother was informed of her right to counsel, her right to an adjournment to retain counsel, or her waiver of her right to counsel. New hearing ordered.

 

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THE NEGLIGENCE AND NEGLIGENT SUPERVISION AND HIRING CAUSES OF ACTION AGAINST THE WARREN COUNTY DEFENDANTS IN THIS CHILD VICTIMS ACT CASE ALLEGING ABUSE IN FOSTER CARE SHOULD HAVE BEEN DISMISSED; THE COMPLAINT DID NOT ADEQUATELY ALLEGE THE WARREN COUNTY DEFENDANTS WERE AWARE OF THE DANGER POSED BY PLAINTIFF’S FOSTER FATHER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the negligence and negligent supervision causes of action against the Warren County defendants in this Child Victims Act case should have been dismissed. The complaint did not adequately allege the Warren County defendants were aware of the danger posed by plaintiff’s foster father:

… [W]e agree with the Warren County defendants that Supreme Court should have dismissed the negligence and negligent hiring, retention, supervision and/or direction causes of action as they relate to the conduct in Warren County. The complaint alleged that, in approximately 1979, plaintiff was placed in a foster home in Warren County, where he was sexually abused by his foster father on numerous occasions. Although we are cognizant that pleadings alleging negligent hiring, retention and supervision need not be pleaded with specificity … , the complaint merely asserts that the Warren County defendants “knew or, in the exercise of reasonable care, should have known” that the foster father “had the propensity to engage in sexual abuse of children.” Unlike in the counties of Albany and Cayuga — where plaintiff alleges that he reported the sexual abuse, thereby providing the municipal defendants with notice of the dangerous condition — the complaint fails to assert any allegations of fact that would have provided the Warren County defendants with notice that the foster father presented a foreseeable harm. Because plaintiff failed to sufficiently plead that the Warren County defendants were provided notice of a dangerous condition present in the Warren County foster home, that claim could not survive a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) … , and Supreme Court should have dismissed those claims against the Warren County defendants. Easterbrooks v Schenectady County, 2023 NY Slip Op 03889, Third Dept 7-20-23

Practice Point: In order to adequately plead a county was negligent in placing plaintiff in a foster-care situation where plaintiff was abused, the complaint must allege facts demonstrating the county was aware of the danger posed by the foster parent.

 

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THE CLAIM IN THIS CHILD VICTIMS ACT ACTION SUFFICIENTLY STATED THE TIME AND NATURE OF THE SEXUAL ABUSE ALLEGEDLY OCCURRING DURING FOSTER CARE MORE THAN 40 YEARS AGO; THE PLEADING REQUIREMENTS IN THE COURT OF CLAIMS AND THE MECHANICS AND PURPOSE OF THE CHILD VICTIMS ACT CONCISELY EXPLAINED (SECOND DEPT). ​

The Second Department, reversing the Court of Claims, determined the claim in this Child Victims Act action, alleging abuse during foster care more than 40 years ago, sufficiently stated the time and nature of the abuse. The decision includes a clear, concise description of the pleading requirement in the Court of Claims, and the mechanics and purpose of the Child Victims Act, which extends that statute of limitations for sexual abuse occurring when the victim was under the age of 18:

Under the particular circumstances of this case, the date ranges provided in the claim indicating that the sexual abuse began when the claimant was 4 years old and “occurred between two to three times a week to three to four times a year” until she was 12 years old while she resided in a foster home, along with other information contained in the claim, including the identities of the claimant’s foster parents, the address of the foster home, and names of the claimant’s alleged abusers, were sufficient to satisfy the “time when” requirement of the Court of Claims Act § 11(b) … . * * *

In this case, the claim sufficiently provided the defendant with a description of the manner in which the claimant was injured, and how the defendant was negligent in allegedly failing to protect the claimant from sexual abuse while she resided in a foster home. The claimant is not required to set forth the evidentiary facts underlying the allegations of negligence in order to satisfy the section 11(b) nature of the claim requirement … . As the claim is sufficiently detailed to allow the defendant to investigate and ascertain its liability, it satisfies the nature of the claim requirement of Court of Claims Act § 11(b) … . Fletcher v State of New York, 2023 NY Slip Op 03850, Second Dept 7-19-23

Practice Point: Here the plaintiff alleged sexual abuse while in foster care more than 40 years ago. Given the purpose of the Child Victims Act, which is clearly explained in this decision, the claim sufficiently described the time and nature of the alleged abuse.

 

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