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AWARDING A PARENT DECISION-MAKING AUTHORITY FOR ANY MAJOR CHILD-RELATED ISSUE IS TANTAMOUNT TO MODIFYING A CUSTODY ARRANGEMENT TO AWARD SOLE CUSTODY TO THE DECISION-MAKING PARENT; SUPREME COURT SHOULD HAVE HELD A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the custody arrangement should not have been modified in the absence of a hearing. The court noted that the award of decision-making authority for any major child-related issue on which the parties cannot agree is tantamount to the award of sole custody:

The Supreme Court erred by, in effect, granting, without a hearing, that branch of the defendant’s motion which was to modify the parties’ stipulation of settlement and judgment of divorce so as to award her sole legal custody of the child to the extent of awarding her final decision-making authority as to any major child-related issue about which the parties could not agree, and denying that branch of the plaintiff’s cross motion which was to modify the stipulation of settlement and judgment of divorce so as to award him sole legal custody. “‘[A] court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” … . … There can be no question that the award of final decision-making authority is not “dramatically unlike” the relief requested, as decision making is part and parcel to legal custody. … [T]he court erred in granting this award without a hearing. The court’s determination that “neither party has established change in circumstances warranting an award of sole custody to either parent” is incongruous with the court’s determination to award the defendant final decision-making authority. Since it appears that the court believed that the parties made an evidentiary showing of a change in circumstances demonstrating a need for a change of decision-making authority to ensure the child’s best interests, a hearing on that issue was required … .  Trazzera v Trazzera, 2021 NY Slip Op 06208, Second Dept 11-10-21

 

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THE ISSUE WHETHER THE STATUTORY REQUIREMENT THAT OBJECTIONS TO CHILD SUPPORT ORDERS BE RULED ON WITHIN 15 DAYS WAS CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; THE 15-DAY RULE IS MANDATORY AND MUST BE ENFORCED; THE MOTHER WAS ENTITLED TO ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT BECAUSE HER ACTION WAS THE CATALYST FOR THIS DECISION (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Mazzarelli, determined: (1) the issue whether objections to child support rulings must be ruled on within 15 days (Family Court Act 439(a)) will be considered on appeal as an exception to the mootness doctrine; (2) under the Equal Access to Justice Act (EAJA) (CPLR 8600, et seq) mother-petitioner was entitled to attorney’s fees because her action served as a catalyst to this decision enforcing the 15-day rule:

The mother has established that this is not the first time in this case that the issue has arisen. Further, the issue is not likely to be resolved without application of the exception, because the Family Court can so easily obviate it by issuing a decision on the objections, albeit after the expiration of the 15 days. Courts have applied the exception under similar circumstances … . * * *

The statute is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it … . * * *

Because the CAJ [Chief Administrative Judge, NYC Family Court] responded to the mother’s petition by assigning a Family Court judge to rule on her objections, and because the CAJ offers no substantial justification for not having enforced Family Court Act § 439(e) before the petition was filed, the matter should be remanded for an assessment of the mother’s attorneys’ fees under the State EAJA. Matter of Liu v Ruiz, 2021 NY Slip Op 06089, First Dept 11-9-21

 

IN THIS DIVORCE ACTION, HUSBAND WAS NOT ENTITLED TO CREDIT FOR MORTGAGE PAYMENTS MADE BEFORE THE TERMINATION OF THE MARRIAGE WAS CONTEMPLATED (SECOND DEPT).

The Second Department determined plaintiff husband in this divorce action should not have been awarded credit for mortgage payments made before terminating the marriage was contemplated:

Supreme Court improvidently exercised its discretion in awarding the plaintiff a credit in the sum of $34,000 for payments he made toward the mortgage on the marital residence. Where a party has paid the other party’s share of what proves to be marital debt during the pendency of the action, including payments toward the mortgage on the marital residence, reimbursement is required … . However, “[a]s a general rule, where the payments are made before either party is anticipating the end of the marriage, . . . courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets” … . Here, the plaintiff’s payments toward the mortgage, which was satisfied in October 2017, were made prior to the commencement of this action, and thus, the plaintiff is not entitled to a credit for those payments. Cuomo v Moss, 2021 NY Slip Op 05945, Second Dept 11-3-21

 

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SUPREME COURT SHOULD NOT HAVE ORDERED THE SALE OF THE MARITAL RESIDENCE; HUSBAND AND WIFE HAD NOT AGREED ON THE MATERIAL TERMS OF THE SALE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, over a two justice dissent, determined the wife did not consent to the sale of the marital residence. There was never a meeting of the minds. Therefore Supreme Court should not have ordered the sale:

The husband’s proposed order contained many of the conditions imposed by Supreme Court in the order on appeal, including scheduled mandatory price reductions and required acceptance of certain offers. The wife’s proposed counter order, on the other hand, contained no proposed initial list price, no procedure for list price reduction or reevaluation, and no required acceptance of offers at any price level. As to a potential sale, the wife’s proposed counter order provided that the property “should either be listed for sale or the Wife shall advise the Husband in writing that she intends to buy-out his interest in the Townhouse” and, further, that “[t]he Townhouse will only be sold under the terms of an agreed Stipulation between the parties.”

The order on appeal reflects that Supreme Court adopted the husband’s order with minimal revisions, essentially rejecting the wife’s preconditions to the sale of the townhouse and imposing its own additional conditions. … [E]ven assuming arguendo that the dissent is correct that the wife initially agreed to the sale of the townhouse, she revoked her consent because the parties were unable to agree on the material terms of the sale … . Taglioni v Garcia, 2021 NY Slip Op 05936, First Dept 10-28-21

 

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FAMILY COURT DID NOT ENSURE FATHER’S WAIVER OF HIS RIGHT TO COUNSEL IN THIS CUSTODY MODIFICATION PROCEEDING WAS KNOWING, INTELLIGENT AND VOLUNTARY; NEW HEARING ORDERD (SECOND DEPT).

The Second Department, ordering a new modification of custody hearing, determined Family Court did not ensure that father’s waiver of his right to counsel was voluntarily and intelligently made:

In order to determine whether a party has validly waived the right to counsel, a court must conduct a “searching inquiry” to ensure that the waiver has been made knowingly, voluntarily, and intelligently … . “While there is no rigid formula to be followed in such an inquiry, and the approach is flexible, the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … . “For example, the court may inquire about the litigant’s ‘age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … . Here, the Family Court did not conduct a sufficiently searching inquiry to ensure that the father’s waiver of his right to counsel was knowingly, voluntarily, and intelligently made … .

… “[T]he deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding requires reversal, without regard to the merits of the unrepresented party’s position … . Matter of Lherisson v Goffe, 2021 NY Slip Op 05856, Second Dept 10-27-21

 

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IN CONSIDERING A MOTION TO DISMISS A PETITON TO MODIFY CUSTODY TO ALLOW RELOCATION, FAMILY COURT MUST ACCEPT THE FACTS ALLEGED IN THE PETITION AS TRUE AND AFFORD PETITIONER EVERY FAVORABLE INFERENCE; MOTHER’S PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition for a modification of custody to allow her to relocate to New Jersey should not have been dismissed without a hearing:

“While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing” … , an evidentiary hearing is generally “necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[]’s best interests” … . “In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner” … .

The change in circumstances alleged by the mother in her petition included, among other things, the child’s “strong desire to relocate” with the mother to New Jersey and a recent breakdown in the child’s relationship with the father. In concluding that these allegations were facially insufficient, Family Court failed to accept the mother’s allegations as true, afford her the benefit of every favorable inference and resolve credibility issues in her favor. Matter of Sarah OO. v Charles OO., 2021 NY Slip Op 05758, Third Dept 10-21-21

 

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FAMILY COURT DOES NOT HAVE THE AUTHORITY TO DIRECT THE DEPARTMENT OF SOCIAL SERVICES (DSS) TO COMMENCE A NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court does not have the authority to direct the Department of Social Services (DSS) to commence a neglect proceeding:

Neither DSS nor the attorney for the child disputes the ability of DSS to commence a neglect proceeding without leave of a court. They also do not dispute that Family Court, under Family Ct Act § 1034, may order DSS to conduct a child protective investigation and report its findings to the court. What is disputed is whether Family Court may order a child protective agency, such as DSS, to commence a neglect proceeding against a parent. …

“Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … . The relevant statute provides that a proceeding under Family Ct Act article 10 may be “originate[d]” either by “a child protective agency” or “a person on the court’s direction” (Family Ct Act § 1032 [a], [b]). In view of the express terms of the statute, Family Court has the authority to direct the commencement of a Family Ct Act article 10 proceeding. That authority, however, is limited to directing only a “person” to do so … — which DSS is not. Matter of Donald QQ. v Stephanie RR., 2021 NY Slip Op 05760, Third Dept 10-21-21

 

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THE DEPARTMENT OF SOCIAL SERVICES DID NOT DEMONSTRATE RESPONDENTS (MOTHER AND FATHER) VIOLATED THE ORDER OF SUPERVISION; IN THIS ORDER-VIOLATION PROCEEDING, FAMILY COURT SHOULD NOT HAVE RELIED UPON AND REFERRED TO EVIDENCE, SOME OF WHICH WAS INADMISSIBLE HEARSAY, FROM THE UNDERLYING NEGLECT PROCEEDING (THIRD DEPT).

The Third Department, reversing Family Court, determined the Department of Social Services (petitioner) did not demonstrate respondents (mother and father) violated the order of supervision and Family Court should not have incorporated evidence from a separate neglect proceeding into the order-violation proceeding:

… [I]t was error in the context of a violation motion for Family Court to find that respondents were in “technical” compliance with the order of supervision but were nonetheless in violation of said order. … [T]he quantum of proof required to establish a willful violation of a court order pursuant to Family Ct Act § 1072 is clear and convincing evidence … , which was not established here. * * *

… [T]he court permitted petitioner to introduce unproven allegations against respondents from the underlying neglect proceeding, evidence relating to other conduct that predated the … order, as well as inadmissible hearsay contained in the case notes authored by petitioner’s employees and the children’s therapists. As the court’s decision is replete with references to this evidence, the admission of this evidence, if relied upon at all to establish willful violations, irreparably tainted its decision … . Matter of Nicholas L. (Melissa L.), 2021 NY Slip Op 05746, Third Dept 10-21-21

 

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THE DEPARTMENT OF SOCIAL SERVICES DID NOT MEET ITS BURDEN OF PROOF ON ITS ABANDONMENT CLAIMS IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; PETITION DISMISSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the petitioner (Department of Social Services) did not meet its burden of proof on whether respondent had abandoned the child in this termination-of-parental-rights proceeding:

“A finding of abandonment is warranted when it is established by clear and convincing evidence that the parent failed to visit or communicate with the child or the petitioning agency during the six-month period immediately prior to the filing of the abandonment petition, although able to do so and not prevented or discouraged from doing so by petitioner” ( … see Social Services Law § 384-b [5] [a] …). It is presumed that a parent has the ability to visit and/or communicate with his or her child and, therefore, “[o]nce the petitioning agency establishes that the parent failed to maintain contact with his or her child, the burden shifts to the parent to prove an inability to maintain contact or that he or she was prevented or discouraged from doing so by the petitioning agency” … . …

The caseworker… only observed two … visitations, each for only a limited period of time, during which she acknowledged that respondent brought snacks for the child. Respondent was otherwise precluded from making any other attempts to contact the child — i.e., telephone calls — outside of her scheduled supervised parenting time. The caseworker … acknowledged that … respondent was hospitalized with an injury that required emergency brain surgery, which prevented her from exercising one of her scheduled visitations that month, and respondent subsequently executed a medical release so that petitioner could verify same. … [A]lthough the caseworker initially indicated that she had not had any contact with respondent since May 2019, during cross-examination she indicated that respondent had, in fact, called her one or two times during the relevant time period. Matter of Khavonye FF. (Latasha EE.), 2021 NY Slip Op 05753, Third Dept 10-21-21

 

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FAMILY COURT DID NOT MAKE THE REQUIRED INQUIRIES BEFORE DETERMINING NEW YORK DID NOT HAVE JURISDICTION OVER THIS NEGLECT PROCEEDING; MOTHER AND CHILD WERE IN CONNECTICUT, FATHER RESIDED IN NEW YORK (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court did not make the required inquiries before finding New York did not have jurisdiction over this neglect proceeding. Mother and child lived in Connecticut and father resided in Westchester County:

The Family Court’s jurisdiction in this child protective proceeding is governed by the Uniform Child Custody Jurisdiction and Enforcement Act … . Nevertheless, the court failed to make any determination as to whether, despite the child’s Connecticut residence at the time of the filing of the petition, it had jurisdiction under Domestic Relations Law § 76 on the basis that New York was the child’s “home state” … . The court further failed to determine whether it had temporary emergency jurisdiction under Domestic Relations Law § 76-c … .. In addition, although a criminal proceeding was allegedly pending in Connecticut, the court failed to determine whether a “proceeding concerning the custody of the child [had] been commenced in a court of another state having jurisdiction,” in which case the court would have been required to stay the proceedings and communicate with the court of the other state (Domestic Relations Law § 76-e[1] …). Finally, in the event that the court determined that it was an inconvenient forum and that Connecticut was the more appropriate forum, there is no indication that the court considered the required factors (see Domestic Relations Law § 76-f[2][a]-[h]). Moreover, upon such a finding, the court is required to “stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state” (Domestic Relations Law § 76-f[3]). Matter of Jenny M. (Thomas M.), 2021 NY Slip Op 05701, Second Dept 10-20-21

 

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