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MOTHER WAS EXPERIENCING COVID-LIKE SYMPTOMS AND THE COURT RULES PROHIBITED HER ENTRY; HER REQUEST FOR AN ADJOURMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the court abused its discretion in denying mother’s request for an adjournment:

… [T]he court abused its discretion in denying her attorney’s request for an adjournment. The mother had not previously requested an adjournment, and there was no indication in the record that an adjournment would have adversely affected the child … . Further, the mother was experiencing COVID-like symptoms and, under the court’s own rules, she was prohibited from entering the courthouse … . We therefore vacate those parts of the order determining that the mother permanently neglected the subject child and terminating her parental rights … . Matter of Jiryan S., 2022 NY Slip Op 04514. Fourth Dept 7-8-22

Practice Point: Here mother was experiencing COVID-like symptoms and requested an adjournment. Court rules prohibited her entry into the building. Her request for an adjournment should have been granted.

 

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THE JUDGE HAD BEEN MADE AWARE A WEEK BEFORE THE HEARING THAT MOTHER’S ATTORNEY WAS NO LONGER REPRESENTING HER; AT THE HEARING MOTHER EXPLAINED SHE HAD COMMUNICATED WITH ANOTHER LAWYER WHO COULD NOT ATTEND THAT DAY; MOTHER ASKED FOR AN ADJOURNMENT; THE JUDGE ABUSED HER DISCRETION IN DENYING THE REQUEST (FOURTH DEPT).

The Fourth Department, reversing Family Court in this custody proceeding, determined mother’s request for an adjournment should have been granted. Mother’s relationship with her attorney had broken down. The attorney had notified the judge a week before and the attorney did not appear for the hearing. At the hearing, mother told the judge she had communicated with another lawyer (who had other obligations) and asked for an adjournment. The request denied and mother represented herself:

Approximately one week prior to the hearing on the father’s petition, the mother’s attorney informed Family Court that there had been a breakdown in her attorney-client relationship with the mother, as a result of which she was no longer representing the mother, and she requested an adjournment of the hearing. On the morning of the hearing, the court failed to make any inquiry of the mother concerning the fact that her attorney was not present at the hearing, nor did the court make any mention of the attorney’s adjournment request. The mother herself then sought an adjournment and confirmed to the court that there had been a fundamental breakdown in the relationship with her attorney. The mother explained that she had spoken to, and scheduled a meeting with, a new attorney and that the new attorney could not be present due to a preexisting obligation. …

… [T]he court abused its discretion in denying her request to adjourn the hearing … . The record establishes that the mother’s request was not a delay tactic and did not result from her lack of diligence in retaining new counsel … . We therefore reverse the order and remit the matter to Family Court for a new hearing on the petition. Matter of Dupont v Armstrong, 2022 NY Slip Op 04509, Fourth Dept 7-8-22

Practice Point: Here mother had never requested an adjournment before and the judge was aware mother’s relationship with her attorney had broken down. At the time of the hearing mother told the judge she had communicated with another lawyer who could not attend that day and asked for an adjournment. The judge’s denial of the request was an abuse of discretion.

 

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ONE OF MOTHER’S CHILDREN OPENED A LOCKED WINDOW, TOOK OUT THE SCREEN AND DROPPED HIS SIBLING TWO STORIES WHILE MOTHER WAS HOME; MOTHER COULD NOT HAVE FORESEEN THE INCIDENT; THE NEGLECT FINDING WAS REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the neglect findings. Although mother knew one of her children was sometimes aggressive, she could not have known he would open a locked window, take out the screen, and drop his sibling two stories. Apparently mother was in the bathroom with the door open when this happened. In addition, neither the children’s hygiene nor the condition of the apartment established neglect. The Fourth Department noted that, although no appeal lies from a decision, as opposed to an order, the paper here met the essential requirements of an order:

… [T]here was nothing intrinsically dangerous about leaving two of the children to eat and watch television while the mother was in the bathroom with the door open … . The record establishes that the mother knew that one of her children was sometimes aggressive towards his younger siblings, but there is no evidence in the record that she was aware that he may open a locked window, remove the screen, and drop his sibling from a height of two stories … . In making that determination, we note that the window involved in the incident was not deemed dangerous by a caseworker during a home visit less than a month before the incident.

… [P]etitioner’s evidence regarding the hygiene of the children and the condition of the apartment, which petitioner’s caseworker testified met “minimal standards,” was not sufficient to establish neglect … . Further, although a “finding of neglect may be entered where, though [being] financially able to do so or offered financial or other reasonable means to do so, a parent fails to provide the child[ren] with adequate clothing and basic medical care” … , here, “[n]o evidence was presented at the fact-finding hearing concerning the financial status of the mother” … . Matter of Silas W., 2022 NY Slip Op 04506, Fourth Dept 7-8-22

Practice Point: Mother was in the bathroom with the door open when one of her children opened a locked window, took out the screen and dropped his sibling two stories. That scenario did not support the neglect finding. Neither the children’s hygiene nor the condition of the apartment warranted a neglect finding.

 

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THE QUALIFIED DOMESTIC RELATION ORDER (QDRO) AS DESCRIBED IN THE STIPULATION OF SETTLEMENT INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE CANNOT BE MODIFIED BY THE COURT; NO APPEAL LIES OF RIGHT FROM A QDRO, AN APPLICATION FOR LEAVE TO APPEAL MUST BE MADE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the qualified domestic relations order (QDRO) should not have been modified by the court because the stipulation of settlement, which was incorporated but not merged into the judgment of divorce, controls. The Fourth Department noted that no appeal lies of right from a QRDO but it treated the notice of appeal as an application for leave to appeal and granted the application:

A stipulation of settlement that is incorporated but not merged into a judgment of divorce “is a contract subject to the principles of contract construction and interpretation” … . Where such an agreement is clear and unambiguous, the intent of the parties must be gleaned from the language used in the stipulation of settlement and not from extrinsic evidence … , and the agreement in that instance ” ‘must be enforced according to the plain meaning of its terms’ ” … . “A proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment” … . “An alternative result would undermine litigants’ freedom of contract by allowing QDROs to create new rights—or litigants to generate new claims—unexpressed in the settlement stipulation” … . Thus, “a court cannot issue a QDRO encompassing rights not provided in the underlying stipulation . . . , or one that is more expansive than the stipulation” … . Gay v Gay, 2022 NY Slip Op 04480, Fourth Dept 7-8-22

Practice Point: A qualified domestic relations order (QDRO) as described in a stipulation of settlement incorporated but not merged into the judgment of divorce cannot be modified by the court. No appeal lies of right from a QDRO, an application for permission to appeal must be made.

 

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RE: A MOTION FOR TEMPORARY CUSTODY, IF ALLEGATIONS IN THE AFFIDAVITS ARE CONTROVERTED, A HEARING MUST BE HELD; TO BASE A TEMPORARY-CUSTODY RULING ON CONTROVERTED ALLEGATIONS IS AN ERROR OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined controverted allegations in the affidavits required a hearing on the motion for temporary residential custody of the child:

… [W]hile temporary custody may generally “be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing” … .

… [T]he record demonstrates disputed factual issues so as to require a hearing on the plaintiff’s motion, in effect, for temporary primary residential custody of the child … . Chukwuemeka v Chukuemeka, 2022 NY Slip Op 04287, Second Dept 7-6-22

Practice Point: A motion for temporary custody may be decided on the papers if the allegations are not controverted. If allegations are controverted, it is an error of law to determine the issue without a hearing.

 

FATHER DID NOT DEMONSTRATE HIS CONSENT TO ADOPTION WAS REQUIRED; ALTHOUGH FATHER WAS INCARCERATED FOR MUCH OF THE TIME SINCE THE CHILD WAS BORN, FATHER DID NOT SUPPORT THE CHILD OR MAKE ANY EFFORT TO GAIN PARENTAL ACCESS TO THE CHILD DURING THE PERIODS HE WAS NOT INCARCERATED (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s consent to adoption was not required. Although father, who never married mother, was incarcerated for much of the time since the child was born, and there was an order of protection prohibiting him from seeing the child, the Second Department held father could have, but did not, make an effort to support the child and have the order of protection lifted during the periods he was not incarcerated:

The father bore the burden of establishing that he was a consent father pursuant to Domestic Relations Law § 111(1)(d) … . The father provided no support for the child, and no evidence was submitted that he lacked the means to do so … . Further, the fact that the father was incarcerated, or that there was no order directing child support, did not absolve him of the obligation to support the child … . Moreover, there were substantial periods of time when the father was out of prison and, therefore, could have petitioned for contact with the child. Although an order of protection in favor of the child was in effect until November 2018, that order specifically provided that it could be modified by a subsequent order issued by the Family Court or the Supreme Court in a parental access proceeding. Further, there was a substantial period in 2019 when the father was out of prison, but the father failed to seek contact with the child through the Family Court….Matter of Statini v Reed, 2022 NY Slip Op 04304, Second Dept 7-6-22

Practice Point: In the context of whether father’s consent to adoption of his child (born out-of-wedlock) is required, the fact that father was incarcerated for much of the time since the child was born did not relieve him of his obligation to support the child. Father made no effort to gain parental access to the child, or to support the child, during the periods he was not in prison. Father’s consent to adoption of the child was not required.

 

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TERMINATION OF MOTHER’S SUPERVISED VISITATION IS A “DRASTIC REMEDY” WHICH MUST BE SUPPORTED BY “SUBSTANTIAL PROOF” CONTINUED VISITATION “WOULD BE HARMFUL TO THE CHILD;” THE PROOF HERE DID NOT MEET THOSE CRITERIA (THIRD DEPT). ​

The Third Department determined the evidence did not support the “drastic remedy” of terminating mother’s supervised visitation with the child:

Although Family Court found that both the mother and the father “testified credi[]bly that relations between the mother and child ha[d] deteriorated” — a determination that was borne out by the testimony — the “denial of visitation to a noncustodial parent is a drastic remedy” … and the record does not contain “substantial proof” that continued supervised visitation “would be harmful to the child” … . We are mindful of the father’s testimony that the child had returned home from a visit with bent glasses and marks on his leg. However, Family Court did not make any factual findings regarding these allegations, and the maternal grandfather — who drove the child home from that visit — denied ever observing the child’s glasses to be “messed up” or witnessing marks on the child’s legs. On this record, there is an insufficient basis to conclude that the bent glasses and marks observed by the father were caused by the mother’s conduct. Moreover, while the mother herself acknowledged that there were issues in the relationship between her and the child, she indicated that this stemmed from the child’s difficult behavior and her concern about the child making racist comments in front of his three-year-old half-sibling. There was also testimony regarding the positive aspects of their relationship and the maternal grandfather, who did all the driving, corroborated that the child generally seemed content during visits. Notwithstanding the father’s testimony to the contrary, we conclude that the evidence presented was not sufficiently compelling and substantial to justify a wholesale suspension of the mother’s supervised visitation … . Matter of William V. v Christine W., 2022 NY Slip Op 04199, Third Dept 6-3022

Practice Point: The termination of supervised visitation is a “drastic remedy” which requires “substantial proof” continued visitation “would be harmful to the child.” The proof was lacking in this case.

 

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WHEN HER CHILDREN WERE ASLEEP, MOTHER WENT INTO THE BATHROOM, DRANK BRANDY, AND FELL ASLEEP; THERE WAS INSUFFICIENT EVIDENCE OF A THREAT OF IMMINENT HARM TO THE CHILDREN OR THAT THE CHILDREN SUFFERED ANY EMOTIONAL HARM; NEGLECT FINDING REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, over a dissent, determined the neglect finding against mother was not supported by evidence of a threat of imminent harm to the children. While the children were sleeping, mother went into the bathroom, drank brandy and fell asleep:

… [W]e find that petitioner failed to establish that respondent’s ill-advised conduct placed the children at risk of anything beyond, “at most, possible harm” … . To this point, respondent testified that her youngest children were in age-appropriate sleeping arrangements that presented no inherent danger resulting from respondent’s inebriated state … . Further, although there was a period when the children were no longer supervised by respondent when she was taken to the hospital, the testimony reveals that shelter staff were watching the children until petitioner’s supervisor arrived and took custody of them, and there is no indication that they were in any danger during this period of time … .

… [T]he record is devoid of any proof that the children were upset or suffered any emotional harm at any point during the incident … . Matter of Hakeem S. (Sarah U.), 2022 NY Slip Op 04214, Third Dept 6-30-22

Practice Point: Children are not neglected unless there is a threat of imminent harm or actual harm. Here mother went into the bathroom, drank brandy and fell asleep while her children were asleep. The neglect finding was reversed.

 

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THE EVIDENCE SUPPORTED FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUIRING A “BEST INTERESTS OF THE CHILD” HEARING; THE APPELLATE COURT ORDERED A “BEST INTERESTS” HEARING, INCLUDING A LINCOLN HEARING, AND ORDERED THE APPOINTMENT OF A NEW ATTORNEY FOR THE CHILD BECAUSE THE PRESENT ATTORNEY HAD EXPRESSED AN OPINION ON THE APPROPRIATE CUSTODY ARRANGEMENT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined father had demonstrated a change in circumstances sufficient to support a modification of the custody arrangement. The original custody order provided that the 50/50 custody sharing would change to mother’s having primary custody when the child started school. Father explained that mother’s primary custody was necessary because his work prevented him from taking the child to and from school. However, father had since changed jobs and moved to the school district where the child attended to school. The Third Department ordered a “best interests of the child” hearing, including a Lincoln hearing, and ordered the appointment of a different attorney for the child because the present attorney had expressed an opinion about the appropriate custody arrangement:

“A party seeking to modify a prior order of custody must show that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order” … . According to the father’s petition, the sole reason for the parties’ initial agreement to decrease the father’s parenting time during the school year was because, at the time of the agreement, the father’s work schedule prevented him from transporting the child to and from school. According to the father’s hearing testimony, that circumstance had since changed. The father testified that, while the 50/50 custody arrangement was still in effect, he obtained a new job with a higher salary and more flexible hours, and bought a house in what was at that time the child’s school district, such that the school transportation issue had been alleviated. Matter of Thomas SS. v Alicia TT., 2022 NY Slip Op 04213, Third Dept 6-30-22

Practice Point: This case is an example of evidence which is deemed sufficient to support a modification of custody such that a “best interests of the child” hearing should be held. Here, as part of the “best interests” fact-finding, the Third Department ordered that a Lincoln hearing be held and that a different attorney for the child be appointed because the present attorney had expressed an opinion on custody.

 

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THE RELATIONSHIP BETWEEN PETITIONER AND RESPONDENT IN THIS FAMILY OFFENSE PROCEEDING MET THE DEFINITION OF “INTIMATE RELATIONSHIP” SUCH THAT FAMILY COURT HAD SUBJECT MATTER JURISDICTION (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the family-offense petition should not have been dismissed for lack of subject matter jurisdiction. The Second Department determined the respondent met the “intimate relationship” criteria which provided Family Court with subject matter jurisdiction:

“[T]he determination as to whether persons are or have been in an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e) is a fact-specific determination which may require a hearing” … . Although Family Court Act § 812(1)(e) expressly excludes a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” from the definition of “intimate relationship,” “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) based upon consideration of factors such as ‘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 record demonstrated that the petitioner knew the respondent for more than 20 years, and the respondent and the petitioner’s sister held themselves out as husband and wife. During that period of time, the petitioner and the respondent engaged in general social activities at each other’s homes, attended holiday and birthday celebrations together, and traveled together. The petitioner’s sister and the respondent had a daughter together who identified the petitioner as her aunt. The petitioner resided in one of the units of a three-family home. The petitioner’s sister, the respondent, and their daughter, who was approximately 18 years old at the time of the hearing, resided in one of the other units of that three-family home. The home was owned by the mother of the petitioner and the petitioner’s sister. Under the circumstances, the Family Court should have denied the respondent’s application to dismiss the petition for lack of subject matter jurisdiction (see Family Ct Act § 812[1]). Matter of Charter v Allen, 2022 NY Slip Op 04167, Second Dept 6-29-22

Practice Point: This case demonstrates that an “intimate relationship” which gives Family Court subject matter jurisdiction in a family offense proceeding need not be a sexual relationship.

 

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