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FAMILY COURT SHOULD HAVE GRANTED THE GUARDIANSHIP PETITIONS AND MADE FINDINGS ENABLING THE CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATE (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined the guardianship petitions should have been granted and findings enabling the children to apply for special immigrant juvenile status should have been made:

… [T]he record supports a finding that the children are under the age of 21 and unmarried, and, since we have appointed the petitioner as the children’s guardian, the children are dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … . Further, based upon our independent factual review, the record supports a finding that the children’s father is deceased, and therefore, reunification is not possible … . Lastly, the record supports a finding that it would not be in the best interests of the children to return to El Salvador, their previous country of nationality or country of last habitual residence … . Matter of Jose S. S. G. (Norma C. G. C.), 2023 NY Slip Op 03350, Second Dept 6-21-23

Practice Point: The criteria for enabling children’s applications for special immigrant juvenile status (SIJS) explained in some depth.

 

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IN THIS DIVORCE PROCEEDING (1) THE HUSBAND’S REQUEST FOR CLOSURE OF THE COURTROOM SHOULD HAVE BEEN PUBLIC, NOT CONCEALED FROM THE PUBLIC IN EMAILS, AND (2), THE COURTROOM CLOSURE WAS IMPROPERLY BASED ON AN EXCEPTION TO THE PUBLIC-TRIAL REQUIREMENT WHICH IS NOT INCLUDED IN JUDICIARY LAW SECTION 4 (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have ordered closure of the courtroom pursuant to Judiciary Law section 4 in this divorce proceeding. The criteria for closure of a courtroom are discussed in some detail. Here the judge ordered some documents to be submitted under seal and then based the closure on the existence of sealed documents as evidence. That justification for closure is not one of the exceptions in Judiciary Law section 4:

The motion court did not provide the public and the press adequate notice of the husband’s courtroom closure request. Because it directed the parties to file their submissions on the application for courtroom closure by email, the submissions were not reflected on “the publicly maintained docket entries,” as required … .

We also reverse on substantive grounds. “Public access to court proceedings is strongly favored, both as a matter of constitutional law . . . and as statutory imperative …” … . In the order appealed here, the motion court improperly read an exception into the “statutory imperative” of NY Judiciary Law §4 that does not exist. The first part of that statute, entitled “Sittings of courts to be public,” states: “The sittings of every court within this state shall be public, and every citizen may freely attend the same . . .” The only exceptions to this rule are set forth in the statute’s next sentence: “except that in all proceedings and trials in cases for divorce, seduction, rape, assault with intent to commit rape, criminal sexual act, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court” … .

Here, the motion court used its discretion to insert another, unwritten category of cases into the statutory exception: proceedings that could entail arguments that implicate documents filed under seal. We find its decision to do so to have been improper … . Paulson v Paulson, 2023 NY Slip Op 03310, First Dept 6-20-23

Practice Point: A request for courtroom closure must be accessible by the public, not concealed in email exchanges.

Practice Point: Courtroom closure based on a reason not included in the public-trial exceptions in Judiciary Law section 4 is an abuse of discretion.

 

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AN ORAL STIPULATION IS INVALID PURSUANT TO DOMESTIC RELATIONS LAW SECION 236(B)(3) AND CANNOT BE RATIFIED; THERE IS NOW AN EVEN SPLIT AMONG THE APPELLATE DIVISION DEPARTMENTS ON THIS ISSUE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noting a split among the appellate-division departments, determined an oral stipulation was invalid pursuant to Domestic Relations Law 236(B)(3):

… [T]he parties’ oral stipulation is not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). Although plaintiff’s attorney stated at the time of the oral stipulation that she “would prefer just to do the oral stipulation,” the statute unambiguously provides that, in order for an agreement regarding maintenance or a distributive award “made before or during the marriage” to be valid and enforceable in a matrimonial action, the agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” … . We have repeatedly held that oral stipulations do not comply with the statute … . …

… Supreme Court erred in denying the motion on the ground that plaintiff ratified the oral stipulation. The proposition that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) could be upheld if ratified by the parties was implicitly rejected by the Court of Appeals in Matisoff.[90 NY2d 135-136] … . Cole v Hoover, 2023 NY Slip Op 03103, Fourth Dept 6-9-23

Practice Point: An oral stipulation is invalid pursuant to Domestic Relations Law 236(B)(3) and cannot be ratified. There is now an even split among the appellate division departments on this issue.

 

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​FAMILY COURT SHOULD HAVE HELD A LINCOLN HEARING TO DETERMINE THE WISHES OF THE CHILD, WHO WAS ABOUT TO TURN 16, IN THIS CUSTODY MODIFICATION PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the court should have held a Lincoln hearing in this modification of custody proceeding:

We find that Family Court abused its discretion in denying the attorney for the child’s request for a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. While the determination of whether to conduct a Lincoln hearing lies within Family Court’s discretion, it is indeed the preferred method for ascertaining the child’s wishes … . At the time of the hearing, the child was six days shy of being 16 years old and the mother’s primary argument in support of her petition was that the child preferred to reside with her in Florida. “[A] Lincoln hearing would have provided the court with significant pieces of information it needed to make the soundest possible decision” …  . The wishes of this soon-to-be 16-year-old child, although not determinative, should have been considered, including any insight he may have provided as to the current status of his relationship with each parent …  . It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing “is to ascertain a child’s preferences and concerns” … . Matter of Samantha WW. v Malek XX., 2023 NY Slip Op 03052, Third Dept 6-8-23

Practice Point: Here it was an abuse of discretion to fail to hold a Lincoln hearing to determine the wishes of the child, who was nearly 16, in this custody modification proceeding.

 

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MOTHER’S PETITION FOR PERMISSION TO RELOCATE TO FLORIDA WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition for permission to relocate to Florida with the children should have been granted:

“Taken as a whole, the mother’s testimony demonstrated . . . that the mother’s reasons for wanting to relocate were familial and economic and that the proposed relocation would likely enhance the lives of the mother and the child[ren] economically and emotionally” … . * * *

Although we recognize the importance of an ongoing relationship between the father and the children, the … proof reflects that the mother is, by far, the more involved parent and the primary caregiver, that the lives of the mother and the children would be enhanced by the relocation to Florida, that the children want to make that move, and that the mother is willing to facilitate significant visitation between the children and the father if it occurs. As such, Family Court’s determination denying the mother’s relocation request is not supported by a sound and substantial basis in the record … . Matter of Amber GG. v Eric HH., 2023 NY Slip Op 03059, Third Dept 6-8-23

Practice Point: Mother demonstrated she was the more involved parent and that she and her children would be better off financially and emotionally if she moved near her relatives in Florida. She further demonstrated she is willing to facilitate significant visitation with father. Her petition to relocate should have been granted.

 

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THE AWARD OF COUNSEL FEES TO MOTHER IN THIS MODIFICATION OF CUSTODY PROCEEDING WAS AN ABUSE OF DISCRETION; FATHER WAS NOT GIVEN ADEQUATE NOTICE OF ANY FRIVOLOUS CONDUCT; THE FINANCIAL CIRCUMSTANCES OF THE PARTIES WERE NOT CONSIDERED; THE RELEVANT REGULATORY AND STATUTORY CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have awarded counsel fees to mother. Mother brought an action for modification of a custody order on the ground father had lied about the method of transportation he used to go to Alabama with the child. Apparently father told mother they were going to drive, when in fact they flew. Mother was awarded $25,000 in counsel fees:

… Supreme Court permitted the mother to make a written application for counsel fees, [but] the court did not state whether the application should be made under 22 NYCRR 130-1.1….[T]he court did not … make a finding that the father’s conduct was “frivolous” within the meaning of 22 NYCRR 130-1.1. … [T]o the extent the court granted the mother’s application for an award of counsel fees pursuant to 22 NYCRR 130-1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard” … .

… [T]o the extent that the Supreme Court granted the mother’s application for an award of counsel fees under 22 NYCRR 130-1.1, the court improperly based its determination to grant the application, in part, on the father’s act of lying to the mother about flying to Alabama with the parties’ child, since this conduct occurred outside of the proceeding before the court … . * * *

… [T]o the extent that the Supreme Court granted the mother’s application for an award of counsel fees pursuant to Domestic Relations Law § 237(b), the court did not adequately consider the disparate financial circumstances of the parties … . LeBoeuf v Greene, 2023 NY Slip Op 02870, Second Dept 5-31-23

Practice Point: Here the award of counsel fees was not appropriate under “frivolous conduct” or “financial circumstances” criteria. The relevant regulatory and statutory requirements for a counsel-fees award are explained in some depth.

 

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FATHER, AS THE NONCUSTODIAL PARENT PROVIDING MOST OF THE FINANCIAL SUPPORT FOR THE CHILDREN, WAS ENTITLED TO DECLARE THE CHILDREN DEPENDENTS FOR INCOME TAX PURPOSES (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined father, as the noncustodial parent contributing most of the financial support for the children, was entitled to declare the children dependents for income-tax purposes:

Where, as here, the noncustodial parent is contributing the majority of the financial support of the parties’ children, “the court may determine that the noncustodial parent is entitled to declare the children as dependents on his or her income tax returns” … . Accordingly, under the circumstances here, the plaintiff is entitled to declare all of the parties’ unemancipated children as his dependents for income tax purposes … . Miller v Miller, 2023 NY Slip Op 02872, Second Dept 5-31-23

Practice Point: Here father, as the noncustodial parent providing most of the financial support for the children, was entitled to declare the children dependents for income tax purposes.

 

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FAMILY COURT SHOULD HAVE APPOINTED MOTHER GUARDIAN OF THE JUVENILE, DISPENSED WITH SERVICE ON FATHER, AND MADE FINDINGS TO ALLOW THE JUVENILE TO APPLY FOR SPECIAL JUVENILE IMMIGRATION STATUS (SJIS); ALL OF THE COMPLICATED, INTERTWINED STATUTORY LAW EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother should have been appointed guardian of the juvenile and the court should have made findings to allow the juvenile to apply for special immigration juvenile status (SIJS). Family Court should not have required a birth certificate to prove the juvenile’s age:

Family Court Act § 661(a) permits the Family Court to appoint a guardian for a youth between the ages of 18 and 21 in order to establish that the youth is “dependent on a juvenile court” (8 USC § 1101[a][27][J][i]) for purposes of an application for SIJS … . The provisions of the Surrogate’s Court Procedure Act (hereinafter SCPA) apply to the extent they are applicable to guardianship of the person of a minor or infant and do not conflict with the provisions of the Family Court Act … . …

… [T]here is no express requirement to submit certified copies of birth certificates in a proceeding such as this pursuant to Family Court Act § 661(a) … . … [T]he Family Court is only required to ascertain the juvenile’s age, and there is no statutory requirement that a petitioner submit any particular evidence to establish the juvenile’s age (see id.; SCPA 1706[1]). Here, for purposes of this proceeding pursuant to Family Court Act § 661(a), the record supports a finding that the child is under the age of 21 … . …

Family Court should have granted the guardianship petition and the mother’s motions to dispense with service on the father and for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Matter of Joel A. A. R. (Eddy A. A. G.), 2023 NY Slip Op 02881, Second Dept 5-31-23

Practice Point: Here the complicated, intertwined statutory law controlling special juvenile immigration status (SJIS), as well as the related evidentiary requirements in Family Court,  are explained in some depth.

 

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THE PROOF FATHER NEGLECTED THE CHILD WAS PRIMARILY BASED UPON HIS INCARCERATION, WHICH WAS NOT SUFFICIENT (THIRD DEPT).

The Third Department, reversing Family Court, over a concurrence, determined the proof respondent father neglected the child was insufficient. The neglect finding appeared to be primarily based upon father’s incarceration:

We note that a determination of whether respondent neglected the child was complicated by the fact that no DNA analysis was performed to establish paternity until late 2020, over a year after the child’s birth. * * *

At the fact-finding hearing, … most of the proof upon which petitioner relied was … hearsay. Although no objections were raised, the caseworker testified to the mother’s statements regarding paternity and to respondent’s mother’s statements. In the end, petitioner’s proof failed to establish how respondent’s plan to have his mother care for the child fell below the “minimum degree of care” or how it impaired the child or placed him in imminent danger of becoming impaired … . Petitioner’s proof seemed to be predicated solely on respondent’s incarceration, which cannot alone form the basis for a neglect finding … . Due to the accumulation of errors by petitioner, and the insufficiency of its proof, we find that petitioner failed to establish that respondent neglected the subject child … . Matter of Elijah AA. (Alexander AA.), 2023 NY Slip Op 02812, Third Dept 5-25-23

Practice Point: Here the proof father neglected the child was insufficient. Despite father’s request, a paternity test was not performed for more than a year after the child’s birth. Once father was incarcerated two months before the child’s birth, his mother refused to help out with care for the child, but father was not so informed. Neglect cannot be based solely on father’s incarceration.

 

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THE PROOF OF DOMESTIC VIOLENCE AT THE FORTHCOMING CUSTODY TRIAL SHOULD NOT HAVE BEEN LIMITED TO INCIDENTS OCCURRING AFTER THE HAGUE CONVENTION PROCEEDINGS IN CYPRUS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, determined the proof of domestic violence at the upcoming custody trial should not have been limited to incidents occurring after the Hague Convention proceedings in Cyprus:

… [T]hat aspect of the order that limits the proof of domestic violence that the mother may try to introduce at the forthcoming custody trial to incidents that have occurred since conclusion of the Hague Convention proceedings, is vacated. The court correctly recognized “[a] decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence” … . However, it then effectively vested the Hague Convention proceedings with preclusive effect as to claims of domestic violence, by ruling that, at the impending custody hearing, the mother could only seek to introduce evidence of domestic violence that has occurred since those proceedings’ conclusion. There should have been no such temporal limitation imposed on the domestic violence evidence the mother may seek to introduce. Gould v Kontogiorge, 2023 NY Slip Op 02824, First Dept 5-25-23

Practice Point: Here Family Court should not have limited proof of domestic violence at the upcoming custody trial to incidents occurring after the Hague Convention proceedings in Cyprus. A Hague Convention is not a determination on the merits of any custody issue.

 

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