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FAMILY COURT PROPERLY PROHIBITED FATHER FROM POSTING BLOGS DISPARAGING THE CHILD’S RELATIVES ON SOCIAL MEDIA, BUT THE RESTRICTIONS WERE TOO BROAD IN THAT THEY WENT BEYOND THE NEEDS OF THE CASE (SECOND DEPT).

The Second Department determined Family Court had properly prohibited father from posting blogs disparaging the child’s relatives on social media, but that the restrictions on future speech should have been more narrowly tailored to the needs of the case:

“A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression” … . A party seeking to impose such a restraint bears a “heavy burden of demonstrating justification for its imposition” … . Such party must demonstrate that the speech sought to be restrained is “‘likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest'” … . An order imposing a prior restraint on speech “must be tailored as precisely as possible to the exact needs of the case” … .

Here, that portion of the order which directed the father to erase, deactivate, and delete “any existing blogs and likenesses” was “not tailored as precisely as possible to the exact needs of the case” … . Specifically, this restriction required the father to delete “any existing blogs and likenesses,” regardless of whether the blogs or likenesses relate to the child, the mother, the mother’s family, or the instant proceedings…. . Matter of Walsh v Russell, 2023 NY Slip Op 01522, Second Dept 3-22-23

Practice Point: As long as the restrictions on future speech relate to the family court case the constitution is not violated. Here father could be prohibited from posting blogs disparaging the child’s relatives and likenesses of the child. The order to delete past posts was also proper. But the restrictions on future speech were too broad in that they went beyond the needs of the case.

 

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FORMER SISTERS-IN-LAW WHO LIVED ONE MILE APART AND SAW EACH OTHER FREQUENTLY FOR 30 YEARS HAD AN “INTIMATE RELATIONSHIP” WHICH SUPPORTED THE FAMILY OFFENSE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the long-term relationship (as sisters-in-law) qualified as an “intimate relationship” which supports a family offense proceeding:

For purposes of Family Court Act article 8, “members of the same family or household” is defined to include “persons related by consanguinity or affinity,” and “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … …

… [T]he petitioner demonstrated that the parties had been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), so as to confer subject matter jurisdiction upon the court. Beyond expressly excluding from the definition of “intimate relationship” a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” … , “the Legislature left it to the courts to determine, on a case-by-case basis, what qualifies as an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e)” … . Factors to consider include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … .

… [T]he petitioner demonstrated that the parties had known each other for more than 30 years, that they had a close relationship as sisters-in-law for most of this period, during which they lived within one mile of one another, frequently had dinner together, engaged in social activities in each other’s homes, attended most holiday celebrations together, supported each other during times of devastating family illnesses, and assisted each other with their respective children … . Matter of Eno v Illovsky, 2023 NY Slip Op 01506, Second Dept 3-22-23

Practice Point: A family offense proceeding can be brought in Family Court only if there was an “intimate relationship” between petitioner and respondent. Here petitioner and respondent had been sisters-in-law for 30 years. lived a mile apart and had seen each other frequently. Their relationship was an “intimate relationship” within the meaning of the Family L

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​ THE JUDGE SHOULD HAVE HELD A HEARING IN THIS PARENTAL-ACCESS PROCEEDING AND SHOULD NOT HAVE RELIED ON A REPORT BY A FORENSIC EVALUATOR WHICH WAS NOT ADMITTED IN EVIDENCE (SECOND DEPT). ​

he Second Department, reversing Family Court, determined a hearing should have been held in this parental-access proceeding:

Custody and parental access determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . “While the general right to a hearing in [parental access] cases is not absolute, where ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required” … .

Here, the record demonstrates disputed factual issues so as to require a hearing on the issue of the mother’s parental access … . Further, the Family Court, in making its determination without a hearing, relied upon the report of the forensic evaluator, which had not been admitted into evidence, and the evaluator’s opinions and credibility were untested by the parties … . Matter of McCabe v Truglio, 2023 NY Slip Op 01299, Second Dept 3-15-23

Practice Point: Custody and parental-access determinations generally require hearings. Family Court should not rely on reports which have not been admitted in evidence.

 

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THE EVIDENCE FATHER NEGLECTED THE DAUGHTER (EXCESSIVE CORPORAL PUNISHMENT) WAS SUFFICIENT; BUT THE EVIDENCE FATHER DERIVATIVELY NEGLECTED THE SON WAS NOT (FIRST DEPT).

The First Department, reversing (modifying Family Court) determined the evidence father derivatively neglected the son was insufficient:

Family Court’s determination that respondent derivatively neglected his son J.L. was not supported by a preponderance of the evidence. The finding was based entirely on the excessive corporal punishment of the daughter, which took place outside the home. There was no evidence that respondent’s excessive corporal punishment was ever directed at the older child, who was 14 years old at the time, or that he was even aware of the abuse. Furthermore, there was no evidence that the son was at risk of becoming impaired, as he continued to reside with respondent after the petitions were filed … . Matter of C.L. (Edward L.), 2023 NY Slip Op 01260, First Dept 3-14-23

Practice Point: There was no evidence the son was even aware of father’s excessive corporal punishment of the daughter, which took place outside the home. The evidence father derivatively neglected the son was insufficient.

 

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FATHER’S PETITION TO SUSPEND CHILD SUPPORT WAS PROPERLY DISMISSED BUT THE DISMISSAL SHOULD NOT HAVE BEEN “WITH PREJUDICE” BECAUSE FAMILY COURT HAS CONTINUING JURISDICTION OVER SUPPORT MATTERS (SECOND DEPT).

The Second Department, modifying Family Court, determined that although father’s petition to suspend child support was properly dismissed, it should not have been dismissed “with prejudice:”

Family Court properly dismissed that branch of the father’s petition which was to suspend his basic child support obligation on the ground of parental alienation without a hearing … .

However, the Family Court should not have provided that the dismissal was “with prejudice.” The court has continuing jurisdiction to modify, set aside, or vacate a prior order of child support pursuant to Family Court Act § 451 … . Matter of Lew v Lew, 2023 NY Slip Op 01192, Second Dept 3-8-23

Practice Point: Family Court has continuing jurisdiction over support matters. Therefore father’s petition to suspend child support, although properly dismissed, should not have been dismissed “with prejudice.”

 

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A JUDGE MAY NOT ORDER THAT ONLY THE ATTORNEY FOR THE CHILD (AFC), AND NOT THE DEPARTMENT OF SOCIAL SERVICES, IS ALLOWED TO DISCUSS MATTERS OF SURRENDER OR ADOPTION WITH THE CHILD; SUCH AN ORDER INTERFERES WITH THE DEPARTMENT’S STATUTORY DUTIES (THIRD DEPT).

The Third Department, reversing Family Court in a matter of first impression in this neglect proceeding, in a full-fledged opinion by Justice Clark, determined Family Court could not order the petitioner (Delaware County Department of Social Services) to refrain from discussing matters of surrender or adoption with the child. The attorney for the child (AFC) requested the order which allowed only the AFC to discuss surrender or adoption with the child. The Third Department heard the case as an exception to the mootness doctrine (the order had been vacated, but the issue is likely to recur). The Third Department concluded the order could not stand because it interfered with the petitioner’s statutory duties:

Although we recognize that circumstances may arise where it may be appropriate to allow an attorney for children reasonable time to discuss sensitive matters of importance, such as adoption or surrender, with their child-client before anyone else does, Family Court’s order was not a temporal arrangement to allow the AFC an opportunity to broach the issue with the child. Instead, the order was an outright ban on anyone, including petitioner’s caseworkers, having a discussion with the child regarding issues that are central to the child’s permanency (see Family Ct Act § 1089 [c] [1] [ii]).

Although Family Court attempted to differentiate the issues of surrender and adoption as “a legal issue distinguishable from the assessment of the child’s well-being,” the court construed the issues pertaining to the child’s well-being too narrowly, leaving petitioner in an untenable situation…. According to petitioner, for over a year, it was prevented “from speaking with the child to reassess its understanding of the child’s wishes” relative to respondent’s possible conditional surrender and a subsequent adoption of the child — issues that fall squarely into the category of permanency decisions. Although the child has a right to meaningful representation and to learn about legal issues from the AFC (see Family Ct Act § 241 …), attorneys for children cannot transform such responsibility into a roadblock, as occurred here, preventing petitioner from fulfilling its mandates and planning for the child’s permanency and well-being … . Matter of Michael H. (Catherine I.), 2023 NY Slip Op 01119, Third Dept 3-2-23

Practice Point: Family Court can not order the Department of Social Services to refrain from discussing matters of surrender or adoption with the child. Here the attorney for the child (AFC) asked Family Court for the order allowing only the AFC to discuss surrender or adoption with the child and the request was granted.

 

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EVIDENCE OF NEGLECT BASED UPON ALCOHOL USE WAS INSUFFICIENT; THE BASIS WAS OUT-OF-COURT STATEMENTS OF THE CHILD WHICH WERE NOT CORROBORATED (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined the evidence of father’s neglect based upon alcohol use was insufficient:

… [A] preponderance of the evidence does not support a finding of neglect based on the father’s alcohol use or on any prior incidents of domestic abuse, as those findings were based on out-of-court statements of the child that were not sufficiently corroborated by any other evidence. Matter of Kaylee S. (Kyle L. S.), 2023 NY Slip Op 01150, First Dept 3-2-23

Practice Point: A neglect finding based upon uncorroborated out-of-court statements by a child is not supported by a preponderance of the evidence.

 

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FAMILY COURT SHOULD NOT HAVE DISMISSED FATHER’S MODIFICATION OF CUSTODY PETITION WITHOUT HOLDING A BEST INTERESTS HEARING, SHOULD HAVE ACCEPTED THE FACTS ALLEGED IN THE PETITION AS TRUE, AND SHOULD NOT HAVE RELIED ON UNSWORN INFORMATION FROM THE ATTORNEYS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined father’s petition for a modification of custody should not have been dismissed without holding a best interests hearing. The Third Department noted that Family Court should have accepted the facts alleged in the petition as true and should not have relied on unsworn information provided by the attorneys:

… [F]ather’s petition sufficiently alleged … changed circumstances that, if established at a hearing, would entitle him to a best interests review, including that the mother had thwarted the electronic communication to which he was entitled … , failed to keep him informed of certain health information pertaining to the child and, upon information and belief, was found to have neglected the child … . Even if such circumstances do not ultimately result in an award of joint legal custody as sought by the father, his petition also sought increased visitation and unsupervised parenting time. These changed circumstances, if established, would support a best interests review to determine whether such relief is warranted based upon the totality of the evidence. Matter of Ryan Z. v Adrianne AA., 2023 NY Slip Op 01032, Third Dept 2-23-23

Practice Point: In determining whether a best interests hearing is required when a petition for modification of custody is filed, the facts alleged must be accepted as true. The judge here should not have relied on unsworn information from the attorneys.

 

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IN THIS DIVORCE ACTION, THE SETTLEMENT AGREEMENT STATED THE WIFE’S INCOME WAS WELL BELOW THE FEDERAL POVERTY LEVEL YET SHE WAIVED SPOUSAL SUPPORT; GENERAL MUNICIPAL LAW 5-311 MAY, THEREFORE, HAVE BEEN VIOLATED; ALTHOUGH THE AGREEMENT AS A WHOLE WAS NOT UNCONSCIONABLE, THE MATTER WAS SENT BACK TO ALLOW THE JUDGE TO ENQUIRE ABOUT THE WAIVER (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this divorce action, determined a portion of the settlement agreement may violate the General Municipal Law and sent the matter back for further inquiry by the judge. The wife’s income is well below the federal poverty guidelines yet she waived spousal support:

General Obligations Law § 5-311 prohibits spouses from contracting to dissolve a marriage and “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge …”. * * *

… [A]rticle four of the settlement agreement, concerning spousal support, sets forth the wife’s income as $11,446, which is well below the applicable federal 2020 poverty guidelines … . As such, there is a question as to whether this provision is in violation of General Obligations Law § 5-311 in that the wife “is likely to become a public charge.” Because of this, we find that Supreme Court erred when it failed to make an inquiry into the circumstances surrounding the wife’s waiver of spousal support … .Majid v Hasson, 2023 NY Slip Op 01035, Third Dept 2-23-23

Practice Point: The settlement agreement in this divorce action was not unconscionable, but a provision may violate the General Municipal Law which prohibits agreeing to a level of support which will result in the wife becoming a public charge. The wife’s income is well below the federal poverty level, yet she waived spousal support. The matter was sent back for judicial inquiry into the waiver.

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THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER NEGLECTED THE CHILD BASED ON MOTHER’S DRUG USE WHEN SHE WAS PREGNANT; ALTHOUGH FATHER DID NOT REPORT MOTHER’S DRUG USE TO HER PROBATON OFFICER, FATHER MADE EFFORTS TO INTERVENE RE: MOTHER’S DRUG USE DURING THE PREGNANCY (THIRD DEPT).

The Third Department, reversing Family Court, determined the record did not support a finding that father (respondent) neglected the child based on mother’s drug use when she was pregnant:

Respondent argues that Family Court erred when it found that, knowing that the mother was abusing drugs while pregnant with the daughter, respondent failed to exercise a minimum degree of care when he failed to report the mother’s drug use to her probation officer In its decision, Family Court found that respondent made “some efforts to intervene as to the mother’s drug use,” by enrolling her in an inpatient drug treatment facility, attending drug treatment sessions and drug court proceedings with the mother and preventing her from residing with the son and limiting her contact with him. Indeed, the court stated that respondent had “failed to do the one thing that would have ensured that [the mother did] not have access to drugs while pregnant, reporting her to her probation officer,” and it found that this single failure constituted neglect. Under the circumstances of this case, we disagree.

Respondent testified that … he … learned that the mother had a warrant for her arrest due to her issues with probation. … [H]e and the mother agreed that the mother would engage in an inpatient treatment program to address her addiction and that she would then turn herself in to probation. … [F]our days after entering inpatient treatment, the mother signed herself out and absconded. … [P]etitioner failed to prove by a preponderance of the evidence that respondent failed to exercise a minimum degree of care required of a reasonable and prudent parent … . While respondent could have contacted the mother’s probation officer and reported her drug use, a warrant for the mother’s arrest was already in place, and respondent seemingly lacked any information to assist probation in locating her. Matter of Leo RR. (Joshua RR.), 2023 NY Slip Op 01041, second Dept 2-23-23

Practice Point: Father made efforts to intervene re: mother’s drug use during pregnancy. The record did not support a finding that father neglected the child because he did not report mother’s drug use to her probation officer.

 

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