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A DECISION TO RETURN TO THE REGULAR ACCESS SCHEDULE OF PARENTING TIME AFTER A PERIOD OF SUPERVISED PARENTAL VISITS MUST BE BASED UPON ADMISSIBLE EVIDENCE; WHERE FACTS REMAIN IN DISPUTE, A HEARING IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a hearing should have been held before granting defendant’s motion to return to the regular access schedule of parenting time because some facts were still in dispute:

… Supreme Court should have conducted an evidentiary hearing prior to directing that the regular access schedule as set forth in the parties’ stipulation of settlement be implemented immediately. Although the court based its determination on information contained in the parties’ applications, reports from Kids in Common, and statements from counsel for the parties and the attorney for the child during multiple conferences, Kids in Common had not yet advised that the child was ready for a fully normalized access schedule, and a decision regarding child custody and/or parental access should be based on admissible evidence … . Where, as here, facts material to a determination of what parental access is in the best interests of the child remain in dispute, a hearing is required … . Stolzenberg v Stolzenberg, 2022 NY Slip Op 05554, Second Dept 10-5-22

Practice Point: At the time defendant made a motion to return to the regular access schedule of parenting time after a period of supervised visitation facts remained in dispute. The motion should not have been granted without first holding a hearing where only admissible evidence is considered.

 

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ALTHOUGH THE JUDGE CAN PROPERLY AWARD COUNSEL FEES TO PETITIONER BASED UPON RESPONDENT’S VIOLATION OF AN ORDER OF PROTECTION, A HEARING IS NECESSARY TO DETERMINE THE AMOUNT OF THE FEE (SECOND DEPT).

The Second Department determined that the judge properly exercised discretion in awarding counsel fees to petitioner based upon appellant’s (Gorish’s) violation of an order of protection. However, the amount of counsel fees should have been determined by a hearing:

Under Family Court Act § 846-a, the court “may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful.” “The award of counsel fees is committed to the discretion of the Family Court” … . “[T]he reasonable amount and nature of the claimed services must be established at an adversarial hearing” … . Here, while the Family Court providently exercised its discretion in awarding counsel fees to the petitioner, the court erred in determining the amount of the counsel fees without a hearing. Matter of Sicina v Gorish, 2022 NY Slip Op 05535, Second Dept 10-5-22

Practice Point: The violation of an order of protection is a proper ground for awarding counsel fees to the petitioner, but the amount must be determined by a hearing.

 

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EVEN THOUGH FATHER REFUSED TO COOPERATE WITH AN INVESTIGATION RELATED TO HIS PETITION FOR CUSTODY, THE JUDGE SHOULD NOT HAVE AWARDED CUSTODY TO MOTHER WITHOUT FIRST HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have awarded mother sole custody of the child without first holding a hearing:

Supreme Court directed that the Administration for Children’s Services (hereinafter ACS) conduct an investigation and directed supervised visits between the father and the child. The father failed to comply with the investigation, including refusing to provide his address to ACS, and he failed to complete the intake process for arranging the supervised visits. * * *

“[C]ustody determinations should generally be made only after a full and plenary hearing and inquiry” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[A] court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the child … . Matter of Jones v Rodriguez, 2022 NY Slip Op 05529, Second Dept 10-5-22

Practice Point: Despite father’s failure to cooperate with an investigation stemming from his petition for custody, the judge should have held a hearing before awarding custody to mother.

 

WHERE NEITHER PARENT CAN BE SAID TO HAVE CUSTODY OF THE CHILDREN FOR THE MAJORITY OF THE TIME, THE PARENT WITH THE GREATER RESOURCES SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES (SECOND DEPT).

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Iannacci, in a matter of first impression in the Second Department, determined that where custody is effectively shared equally the parent with the greater resources should be deemed the noncustodial parent for child support purposes:

We conclude, to the contrary, that the court-ordered custody arrangement in this case splits the parents’ physical custody of the children in such a manner that “neither can be said to have physical custody of the children for a majority of the time” … . In such circumstances, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation, here, allegedly, the father, is deemed the noncustodial parent for child support purposes … . * * *

.. [W]hile counting custodial overnights may suffice in most shared custody cases, that approach should not be applied where it does not reflect the reality of the situation. Similarly, while it may be clear in most cases which parent’s share of the parenting time constitutes the majority of custodial time … , the reality of the situation must also be considered where there is a closer division of parenting time. * * *

… [T]his is a case in which the “custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time” … . Thus, “the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent” … . Matter of Smisek v DeSantis, 2022 NY Slip Op 05210, Second Dept 9-21-22

Practice Point: In a matter of first impression in the Second Department. the appellate court determined that where neither parent has custody of the children for a majority of the time, the parent with the greater resources should be deemed the noncustodial parent for child support purposes.

 

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THERE WAS NO EVIDENCE MOTHER PREVIOUSLY FILED FRIVOLOUS VISTATION PETITIONS; THE JUDGE SHOULD NOT HAVE PROHIBITED HER FROM FILING FUTURE PETITIONS WITHOUT LEAVE OF COURT (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the judge should have prohibited mother from filing visitation petitions without leave of court:

The Family Court should not have prohibited the mother from filing petitions for visitation after October 22, 2021, without written leave of the court, since there is no basis in the record to demonstrate that the mother filed frivolous petitions or filed petitions out of ill will or spite … . Matter of Genao-Archibald v Archibald, 2022 NY Slip Op 05166, Second Dept 9-14-22

Practice Point: If there is no evidence in the record that mother previously filed frivolous or spiteful petitions for visitation, the appellate court will reverse a judge’s prohibition of future petitions without leave of court.

 

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THE FAMILY COURT JUDGE HAD REPRESENTED MOTHER IN A RELATED CUSTODY MATTER YEARS BEFORE FATHER BROUGHT A PETITION TO MODIFY CUSTODY; THE JUDGE WAS STATUTORILY DISQUALIFIED FROM THE CURRENT PROCEEDING (THIRD DEPT). ​

The Third Department determined the Family Court judge in this custody proceeding should have recused himself because, as an attorney, he had represented the mother years before where custody was adjudicated. The judge did not remember representing mother, but disqualification was required by the applicable statute:

“A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel” (Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1] [b] [i]). “This prohibition is absolute and establishes a bright-line disqualification rule” … . Although neither the Judiciary Law nor the Rules Governing Judicial Conduct define “an action, claim, matter, motion or proceeding” (Judiciary Law § 14), Black’s Law Dictionary defines a “claim” as “[t]he assertion of an existing right . . . to an equitable remedy, even if contingent or provisional” … .

… [O]ur jurisprudence recognizes that, except in limited circumstances, a parent has an existing and ongoing right to custody of and/or visitation with his or her children … , and it is undisputed that the November 2012 default order and the order on appeal both deal with the custodial arrangement between the same two parents regarding the same three children. Under these circumstances, where the two proceedings involve the same claim of custody, guardianship, or visitation for the same children, we find that Family Court was statutorily disqualified from the instant proceedings … . Matter of John II. v Kristen JJ., 2022 NY Slip Op 05132, Third Dept 9-8-22

Practice Point: It is a bright-line statutory rule that a judge who, as an attorney, represented mother in a custody proceeding is statutorily disqualified from presiding over the same parties in a subsequent custody proceeding.

 

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ALTHOUGH NEW YORK DID NOT HAVE JURISDICTION OVER THE MICHIGAN CUSTODY ORDER; FAMILY COURT SHOULD HAVE EXERCISED TEMPORARY EMERGENCY JURISDICTION AND HELD A HEARING ON THE CHILD’S SAFETY; THE CHILD WAS IN NEW YORK DURING FATHER’S PARENTING TIME WHEN FATHER BROUGHT A NEGLECT/CUSTODY PETITION IN NEW YORK (THIRD DEPT).

The Third Department, reversing Family Court, determined, although Family Court properly dismissed father’s neglect/custody petition on the ground New York did not have jurisdiction over the Michigan custody order, Family Court should have ordered a hearing about the child’s safety pursuant to the court’s temporary emergency jurisdiction. The child was in New York during father’s parenting time at the time father filed the petition:

Under the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act], a New York court has jurisdiction to make an initial child custody determination under certain limited circumstances … . Here, the parties agreed that, as Michigan is the home state of the child, none of these statutory factors apply. Nevertheless, Domestic Relations Law § 76-c provides that “New York courts have ‘temporary emergency jurisdiction if the child is present in this state and it is necessary in an emergency to protect the child, a sibling or parent of the child'” … .

The AFC [attorney for the child] and the father contend that the allegations set forth in the petition were sufficient to warrant Family Court to conduct a hearing. We agree. Matter of Chester HH. v Angela GG., 2022 NY Slip Op 05002, Third Dept 8-18-22

Practice Point: Although New York did not have jurisdiction over a Michigan custody order and therefore properly dismissed father’s neglect/custody petition brought in New York when the child was in New York, Family Court should have exercised its temporary emergency jurisdiction and held a hearing on the child’s safety.

 

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SEXUAL ABUSE FINDINGS IN A FAMILY COURT PROCEEDING COULD NOT BE THE BASIS FOR APPLYING THE COLLATERAL ESTOPPEL DOCTRINE IN THIS CIVIL ACTION UNDER THE CHILD VICTIMS ACT; HEARSAY ADMITTED IN THE FAMILY COURT PROCEEDING IS NOT ADMISSIBLE IN THIS CIVIL ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a substantial dissent, determined defendant in this Child Victims Act action was not collaterally estopped from disputing the sexual abuse allegations based upon the related Family Court proceedings. Hearsay evidence properly admitted in Family Court is not admissible in this civil action in Supreme Court:

… [A]lthough the burden of proof for both the Family Court proceeding and these personal injury actions is the same, i.e., preponderance of the evidence … , hearsay evidence that was admissible in the underlying Family Court proceeding would not be admissible in the instant personal injury actions … . Inasmuch as our determination in the prior Family Court proceeding was based largely on hearsay evidence that would not be admissible in these civil actions, we agree with defendant that he should not be collaterally estopped from defending these actions and that the court erred in granting plaintiffs’ motions for partial summary judgment on liability. Of Doe 44 v Erik P.R., 2022 NY Slip Op 04839, Fourth Dept 8-4-22

Practice Point: Here the sexual abuse findings in a Family Court proceeding could not be the basis for collateral estoppel prohibiting defendant from disputing the child abuse allegation in this Child Victims Act action. Hearsay admitted in the Family Court proceeding is inadmissible in this civil proceeding.

 

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THE POSTNUPTIAL AGREEMENT WAS NOT SIGNED UNDER DURESS AND WAS NOT UNCONSCIONABLE, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this divorce action, determined the postnuptial agreement was not signed under duress and was not unconscionable:

Initially, we conclude that the court erred insofar as it held that plaintiff signed the 2017 agreement under duress as a result of defendant’s emotional abuse. An agreement is voidable on the ground of duress “when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his [or her] free will” … . Generally, “the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing” … . “[T]he threat must be such as to deprive the party of the exercise of free will” … . Here, even accepting as true plaintiff’s allegations that defendant persistently urged him to sign the 2017 agreement and threatened to tell the parties’ children of plaintiff’s wrongful actions in the past, such conduct did not amount to any unlawful acts on the part of defendant sufficient to constitute duress … .

… [P]laintiff failed to sustain his burden of establishing that the 2017 agreement was unconscionable. “An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” … . The fact that defendant was represented by counsel but plaintiff was not is a factor for the court to consider, but is not dispositive … . As relevant here, in the 2017 agreement each party waived his or her rights in the other party’s separate property, which was defined in that agreement. … . …[T]he parties waived any right to receive maintenance. … Plaintiff … signed … three postnuptial agreements during the course of the marriage, and the testimony of both parties revealed that the parties conducted their finances in accordance with the terms of the agreements. … [I]t cannot be said that the 2017 agreement was such that it would “shock the conscience and confound the judgment of any [person] of common sense” … . Campbell v Campbell, 2022 NY Slip Op 04875, Fourth Dept 8-4-22

Practice Point: This decision includes concise descriptions of the criteria for determining whether a postnuptial agreement was signed under duress and whether the agreement is unconscionable.

 

30-YEAR-OLD ALLEGATIONS OF FATHER’S SEXUAL ABUSE OF HIS 10-YEAR-OLD NIECE DID NOT JUSTIFY THE LIMITED PARENTING TIME AWARDED FATHER; FATHER HAD DEMONSTRATED HIS ABILITY TO PROVIDE FOR THE CHILDREN’S WELL-BEING AND THE CASEWORKERS HAD NO CONCERNS ABOUT FATHER (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, determined limiting father’s parenting time to six hours of supervised visits biweekly was not supported by the record. Presumably Family Court’s ruling was based upon sexual abuse allegations made by father’s 10-year-old niece 30 years ago:

… [T]he record contains evidence of the father’s demonstrated ability to provide for the children’s well-being. As established by the evidence, after the children exhibited concerning behavior, the father took overt and appropriate steps to address such behavior by, among other things, engaging in preventative services with the Ulster County Department of Social Services, enrolling the children in counseling and establishing boundaries with the children’s online activity. Child protective caseworkers testified on the father’s behalf and stated that they did not have any concerns regarding the father.

Considering all of the foregoing, we find that the record lacks a sound and substantial basis to support Family Court’s determination to provide the father with only six hours of biweekly, supervised parenting time … . Matter of Benjamin V. v Shantika W., 2022 NY Slip Op 04774, Third Dept 7-28-22

Practice Point: Allegations of sexual abuse by father’s 10-yearr-old niece made 30 years ago did not justify the limited supervised parenting time awarded father. The record demonstrated father’s ability to provide for the children’s well-being and the caseworkers testified they had no concerns about father.

 

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