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MOTHER WAS PROPERLY FOUND TO HAVE DEFAULTED IN THIS CUSTODY MATTER; MOTHER’S ATTORNEY APPEARED BUT DECLINED TO PARTICIPATE; ALTHOUGH AN ORDER ENTERED UPON DEFAULT CANNOT BE APPEALED, CONTESTED MATTERS DETERMINED BY THE TRIAL COURT, HERE WHETHER MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED, CAN BE CONSIDERED UPON APPEAL FROM THE ORDER (FOURTH DEPT). ​

The Fourth Department determined Family Court properly found that mother had defaulted in this custody case, despite the appearance of her attorney, who declined to participate. The Fourth Department noted that, although orders issued pursuant to a default are not appealable, contested issues addressed by the court prior to the order can be appealed:

The court, concluding that the mother had adequate warning that she needed to appear visually at the hearing and ample time to ensure that she could so appear, denied the request for an adjournment and determined that it would proceed by inquest. Inasmuch as the mother’s attorney, although present, thereafter declined to participate in the inquest in the mother’s absence and instead elected to stand mute, we conclude that the court properly determined that the mother’s failure to appear in the manner required constituted a default … .

“[N]otwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those ‘matters which were the subject of contest’ before the [trial court]” … . Thus, in this appeal, review is limited to the mother’s contention that the court abused its discretion in denying her attorney’s request for an adjournment … . We reject that contention. Matter of Reardon v Krause, 2023 NY Slip Op 04880, Fourth Dept 9-29-23

Practice Point: Here mother did not appear in the custody case and her attorney appeared but declined to participate. Therefore Family Court properly found mother to be in default.

Practice Point: Although an order entered upon default is not appealable, an appeal from such an order brings up contested matters decided prior to the order. Here the appellate court considered the denial of mother’s attorney’s request for an adjournment.

 

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FATHER’S OBJECTIONS (EXCEPTIONS) TO THE IMMEDIATE RETURN OF HIS SON TO ITALY PURSUANT TO THE HAGUE CONVENTION SHOULD NOT HAVE BEEN REJECTED; THE EXCEPTIONS RELATED TO ALLEGATIONS THE SON WAS SUBJECTED TO SEXUAL ABUSE BY A MINOR IN MOTHER’S HOME IN ITALY (THIRD DEPT).

The Third Department, reversing Supreme Court, remitting the matter for a hearing, determined father, pursuant to the Hague Convention, had demonstrated the child should not be returned to his mother in Italy based on his allegations he was being sexually abused by a minor who was living with mother and her boyfriend. Therefore, Supreme Court should not have rejected father’s objections (exceptions) to his son’s immediate return to Italy for further proceedings:

… [T]he father’s affidavit reflects that the child made prompt, detailed disclosures of extended sexual abuse experienced in Italy. According to that affidavit, the child also reported that abuse to the mother, who did nothing to intervene or prevent it and instead “forced” the child to continue sleeping in the same bed as the offending minor. As a result, the child has developed a fear of returning to the mother’s custody in Italy. Supreme Court was also provided with a State Police incident report, which reflects that the child made consistent allegations regarding the abuse about a week following his disclosure to the father while interviewed by a child advocate. The submissions further included confirmation of the Italian criminal proceedings against the mother and the boyfriend for not only their alleged failure to prevent the abuse but their facilitation thereof, and there is no information in the record regarding the current status of those proceedings. Accepting these serious allegations as true … , it was an abuse of discretion to summarily reject the father’s first exception. * * *

The affidavit also makes clear the child’s particularized fear of returning to the mother’s custody given that failure and her alleged facilitation of the sexual abuse that he suffered. The record also contained an email exchange regarding the child’s lack of communication with the mother following his disclosure to the father, in which the father describes the child as “a mature smart boy” who was thus being permitted to determine his own communication preferences. Also before the court was the transcript of a telephone call between the child and the mother, in which the child, then nearly 10½ years old, articulately opposed the mother’s efforts to secure his return, citing the mother’s “lies” as to why he is in New York. Although the parties debate the influence each of them has had over the child’s position, any undue influence also presents an issue of fact … . Matter of Luisa JJ. v Joseph II, 2023 NY Slip Op 04699, Third Dept 9-21-23

Practice Point: Here mother demonstrated her son should be returned to her in Italy pursuant to the procedures in the Hague Convention. However father’s objections (exceptions) to his son’s immediate return to Italy based on allegations of sexual abuse by a minor in mother’s home should not have been rejected by Supreme Court. An immediate hearing in Supreme Court was ordered.

 

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IN ORDERING A NEW HEARING ON MOTHER’S PETITION TO RELOCATE, THE FIRST DEPARTMENT NOTED THE INADEQUACY OF THE PROOF PRESENTED BY ASSIGNED COUNSEL AT THE FIRST HEARING AND CONSIDERED “NEW” FACTS WHICH WERE NOT PART OF THE RECORD ON APPEAL (FIRST DEPT). ​

The First Department, reversing Family Court over a detailed and comprehensive dissent, determined mother was entitled to a new hearing on her petition to relocate to North Carolina because her assigned counsel did not adequately present evidence of the financial necessity of the move. The dissent would grant the petition to relocate based on the existing record:

… [A]s the attorney for the child argues on this appeal, the mother’s motion to this Court for a stay pending appeal (a motion this Court granted by order entered November 15, 2022 and continued by order entered April 20, 2023), raised legitimate concerns about the adequacy of representation by her assigned counsel at the fact-finding hearing on her relocation petition. Specifically, … the mother attests that counsel failed to adequately present evidence of the financial necessity that supports her decision to relocate. On account of these omissions, as well as the passage of time and intervening events that have occurred since the court’s September 6, 2022 order, we reverse the court’s denial of the mother’s petition and remand for a new hearing to determine what is in the child’s best interests … . Although the facts warranting a new hearing are outside the record on appeal, given that changed circumstances have particular significance in child custody matters, we take notice of the new facts to the extent they indicate that the record is no longer sufficient to determine the mother’s relocation petition … . Matter of Emily F. v Victor P., 2023 NY Slip Op 04634, First Dept 9-14-23

Practice Point: Here the First Department considered “new” facts which were  not part of the record on appeal in determining there should be a new hearing on mother’s petition to relocate.

 

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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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