Family Law – Page 45 – New York Appellate Digest

MOTHER VIOLATED A COURT ORDER BY RELOCATING TO ARIZONA WITH THE CHILD; HOWEVER, HER ALLEGATIONS OF DOMESTIC ABUSE BY FATHER WERE CREDIBLE AND WARRANTED GRANTING HER CROSS PETITION TO RELOCATE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined mother’s cross petition to relocate with the child was properly granted, despite mother’s violation of a court order prohibiting her from permanently leaving Monroe County with the child without father’s consent, or without a court order allowing relocation. Mother testified that father was abusive and she feared for her life at times. Father denied all allegation of abuse. Family Court found mother’s testimony credible and did not credit father’s testimony:

Courts place considerable weight on the effect of domestic violence on the child … , particularly when a continuing pattern of domestic violence perpetrated by the child’s father compels the mother to relocate out of legitimate fear for her own safety … , or where the father minimized the past incidents of domestic violence … . Indeed, where domestic violence is alleged in a petition for custody, “the court must consider the effect of such domestic violence upon the best interests of the child” … .

… [T]he court appropriately considered the fact that the mother unilaterally removed the child from the jurisdiction, determining that the mother “did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence” … . Although the court did not countenance the mother’s decision to relocate without permission, “it was the father’s [violent] conduct that prompted [her] move to [Arizona] in the first instance and triggered the resulting disruption of his relationship with his daughter” … . Furthermore, although the court did not expressly engage in the analysis required under Tropea (87 NY2d at 740-741), according deference to the court’s factual findings and credibility assessments … we conclude that “there is a sound and substantial basis in the record supporting the court’s determination that ‘relocation would enhance the child[‘s life] economically, emotionally, and educationally, and that the child[‘s] relationship with the father could be preserved through a liberal parental access schedule including, but not limited to, frequent communication and extended summer and holiday visits’ ” … . Matter of Edwards v Ferris, 2021 NY Slip Op 04306, Fourth Dept 7-9-21

July 9, 2021

Family Law, Judges

THE JUDGE SHOULD NOT HAVE DELEGATED THE AUTHORITY TO DETERMINE FATHER’S PARENTAL ACCESS TO THE PETITIONER, THE DECEASED MOTHER’S COUSIN, IN THIS GUARDIANSHIP CASE (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, noted that a judge cannot delegate the authority to determine father’s parental access, here the mother’s cousin petitioned to become the child’s guardian:

… “[A] court may not delegate its authority to determine parental access to either a parent or a child” … . In this case, the Family Court improperly delegated the determination of the father’s parental access to the petitioner. Accordingly, we remit the matter to the Family Court, Suffolk County, to expeditiously establish an appropriate schedule for the father’s parental access in accordance with the best interests of the child … . Matter of Madelyn E. P. (Christine L.-B.–Kevin O.), 2021 NY Slip Op 04228, Second Dept 7-7-21

July 7, 2021

Contract Law, Family Law

THE SEPARATION AGREEMENT WAS NOT UNCONSCIONABLE, BUT THERE WAS A QUESTION WHETHER THE AGREEMENT WAS THE PRODUCT OF OVERREACHING, HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the separation agreement was not unconscionable, there were questions of fact whether the agreement was the product of overreaching requiring a hearing:

While the defendant waived the right to maintenance, this provision, by itself, is insufficient to render the agreement unconscionable … .

Nevertheless, the Supreme Court should have held a hearing on the issue of whether the agreement should be set aside on the ground of overreaching. “Although courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching, the general rule is that if the execution of the agreement is fair, no further inquiry will be made” … . No actual fraud needs to be shown in order to set aside an agreement, but “the challenging party must show overreaching in the execution, such as the concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception” … .

Here, the agreement reflects a vast disparity between the parties’ assets at the time of its execution. Moreover, the defendant’s submissions suggest that the plaintiff may have unilaterally selected and paid the defendant’s attorney, and that negotiations between the parties’ attorneys went on for approximately six weeks prior to the defendant’s initial consultation with her attorney. Marinakis v Marinakis, 2021 NY Slip Op 04218, Second Dept 7-7-21

July 7, 2021

Family Law, Judges

FAMILY COURT SHOULD NOT HAVE DELEGATED TO FATHER ITS AUTHORITY TO SUPERVISE MOTHER’S PARENTING TIME AND TELEPHONE AND ELECTRONIC CONTACT WITH THE CHILDREN (THIRD DEPT).

The Third Department determined Family Court should not have delegated to father its authority to supervise mother’s parenting time and telephone and electronic contact:

Family Court improperly delegated its authority over the mother’s supervised parenting time and telephone and electronic contact with the children to the father. “Unless [parenting time] is inimical to the children’s welfare, the court is required to structure a schedule which results in frequent and regular access by the noncustodial parent. In so doing, the court cannot delegate its authority to determine [parenting time] to either a parent or a child” … . Family Court ordered that the mother’s supervised parenting time “shall be arranged as to time, place, circumstances and supervisor as determined by the [f]ather” and that the mother shall have telephone, Facetime and/or other similar contact with the children “as permitted by the [f]ather.”

Although the father has sole custody of the children and, in such capacity, has discretion in the selection of an appropriate supervisor, Family Court failed to provide parameters with respect to the frequency of the supervised parenting time to which the mother is entitled and … failed to consider the logistical concerns in ensuring that she has frequent and regular access to the children … . Matter of Jessica HH. v Sean HH., 2021 NY Slip Op 04165, Third Dept 7-1-21

July 1, 2021

Evidence, Family Law

ALTHOUGH IT WAS A VERY CLOSE CASE, THE EVIDENCE DID NOT SUPPORT A CHANGE IN CUSTODY SUCH THAT THE COUPLE’S SON, WHO HAS BEEN DIAGNOSED WITH AUTISM, WOULD RELOCATE WITH FATHER TO MASSACHUSETTS, DESPITE FATHER’S BEING MORE FINANCIALLY SECURE THAN MOTHER; FAMILY COURT DID NOT GIVE PROPER WEIGHT TO THE SON’S WISHES (THIRD DEPT).

The Third Department, reversing Family Court, determined, in a very close case where both parents love and want the best for their children (who have been diagnosed with autism), father did not demonstrate a sound basis for modifying the custody arrangement to allow relocation with his son to Massachusetts:

… [I]t is clear that the son is very strongly bonded to the mother. Indeed, he has lived with the mother for the last six years since the father moved to Massachusetts, except for short periods of visitation with the father. Moreover, the son has had very little visitation with the father since the 2019 holiday season due largely to the COVID-19 pandemic. Additionally, although the father cites the living conditions at the mother’s home as the motivation for initially seeking custody, we find this questionable given that he testified that the condition of the mother’s home has long been problematic and that, despite this, he relocated to Massachusetts and left both children in her care. Although … issues with the hot water heater were no doubt problematic, that matter was remedied prior to trial. Even more troubling, however, is the father’s strong opposition to the son changing schools because the son has difficulty with change, yet he feels it is in the son’s best interests to relocate him to Massachusetts away from the mother and the life he has established with her. Although relocation would certainly enhance the son’s life, as his living conditions would improve due to the father being more financially secure, this is only one factor in our analysis … . Finally, although not dispositive, given the advanced age of the son [born 2005], as well as testimony regarding how intelligent he is, we find that Family Court did not give proper weight to his wishes … . Matter of Daniel G. v Marie H., 2021 NY Slip Op 04178, Third Dept 7-1-21

July 1, 2021

Family Law

MOTHER’S REFUSING TO SIGN MEDICAL CONSENT FORMS FOR PSYCHIATRIC TREATMENT OF HER CHILD DID NOT CONSTITUTE NEGLECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Administration for Children’s Services (ACS) did not demonstrate mother had neglected the child by refusing to sign medical consent forms which resulted in the child being discharged from the psychiatric care at the Richmond University Medical Center (RUMC):

ACS failed to establish by a preponderance of the evidence that the mother neglected the child. ACS did not establish that the mother’s failure to sign the admissions paperwork for the child’s stay at RUMC, or her failure to consent to the child being given a drug known as Risperdal, impaired, or caused imminent risk of impairment of, the child’s physical, mental, or emotional condition. Contrary to the allegation in the petition, the child’s medical records showed that she was discharged from RUMC because her condition had stabilized and she did not appear to be a threat to herself or others. Moreover, the mother agreed with the recommendation that the child receive follow-up outpatient care, and at the time that the child was discharged, the mother had two such appointments scheduled. As to the mother’s failure to consent to the child being given Risperdal, the medical records showed that, despite not being given this medication, the child’s condition stabilized during her hospitalization such that she was able to be released safely for outpatient treatment. ACS presented no evidence that outpatient treatment without the use of Risperdal was not “an acceptable course of treatment in light of all of the surrounding circumstances” … . Matter of Nabil H. A. (Vinda F.), 2021 NY Slip Op 04129, Second Dept 6-30-21

June 30, 2021

Appeals, Constitutional Law, Criminal Law, Family Law

PETITIONER WAS ENTITLED TO A HEARING ON A TEMPORARY ORDER OF PROTECTION (TOP) WHICH BARRED HER FROM HER OWN APARTMENT WHERE HER CHILDREN LIVED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Criminal Court, determined the mandamus action against a Criminal Court judge seeking a hearing on a temporary order of protection (TOP) should have been granted. The First Department found that the matter qualified as an exception to the mootness doctrine and heard the appeal despite the dismissal of the underlying criminal action. Petitioner was charged with assaulting a man with whom she lived in her apartment. The TOP barred her from her own apartment where her children resided:

We find that the Criminal Court’s initial failure to hold an evidentiary hearing in accordance with petitioner’s due process rights after being informed that petitioner might suffer the deprivation of a significant liberty or property interest upon issuance of the TOP falls within the exception to the mootness doctrine: “(1)[there is] a likelihood of repetition, either between the parties or among other members of the public; (2) [it involves] a phenomenon typically evading review; and (3) [there is] a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . Matter of Crawford v Ally, 2021 NY Slip Op 04082, First Dept 6-24-21

June 24, 2021

Constitutional Law, Contract Law, Family Law

THE HARASSMENT-RELATED SPEECH PROHIBITIONS IN THE ORDER OF PROTECTION DID NOT VIOLATE THE FIRST AMENDMENT BUT THE PROVISION PROHIBITING RESPONDENT FROM DISCSUSSING THE PETITIONER OR THE FAMILY OFFENSE PROCEEDING WAS STRUCK FROM THE ORDER OF PROTECTION AS UNNECESSARY (FIRST DEPT).

The First Department affirmed the finding respondent committed the family offense of harassment by sending email about petitioner’s personal matters to 53 people. Although the harassment prohibitions in the order of protection did not violate the Firs Amendment, the provision in the order of protection which prohibited respondent from discussing the petitioner or the proceedings was struck as unnecessary:

Respondent contends that the provision of the order prohibiting him from discussing petitioner or the case with anyone familiar with petitioner violated his First Amendment right to freedom of speech. To be sure, respondent’s repeatedly sending petitioner emails articulating his unwanted opinions about her, her mother and their family dynamic or making petitioner aware of the emails he sent to several third parties broadcasting those opinions by blind-copying her on those messages is not protected by the First Amendment, because those repeated and unwanted communications serve no legitimate purpose … . However, because the harassment is adequately addressed by the provision that respondent stay away from petitioner and not contact her, we delete the prohibition against his discussing petitioner or the proceeding … . Matter of Sophia M. v James M., 2021 NY Slip Op 03992, First Dept 6-22-21

June 22, 2021

Family Law

HUSBAND’S PROCEEDS FROM THE SALE OF STOCK DID NOT LOSE THEIR SEPARATE-PROPERTY CHARACTER WHEN THEY WERE BRIEFLY PLACED IN THE PARTIES’ JOINT BANK ACCOUNT BEFORE BEING USED FOR THE DOWNPAYMENT FOR THE MARITAL RESIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined funds from the husband’s sale of stock were his separate property, even though the funds were briefly placed in a joint account before using them for the down payment on the marital residence:

… [D]efendant offered uncontroverted testimony, supported by documentary evidence, that he placed funds acquired from the sale of stocks he had purchased prior to the marriage into the parties’ joint bank account because it was his only checking account and he could not access the funds directly from the platform from which he sold the stock … . The funds remained in the account for only a matter of weeks before defendant withdrew a majority of them to pay a portion of the down payment for the marital home … . Thus, defendant established that the account was used “only as a conduit” for the sale of his stock … . The funds therefore maintained their character as separate property, and defendant is entitled to a credit for his portion of the down payment … . LaPoint v Claypoole, 2021 NY Slip Op 03947, Fourth Dept 6-17-21

June 17, 2021

Attorneys, Contempt, Family Law

ALTHOUGH THE CHILD-SUPPORT CONTEMPT PROCEEDING WAS IN SUPREME COURT, NOT FAMILY COURT, PLAINTIFF HAD A RIGHT TO COUNSEL UNDER THE JUDICIARY LAW; PLAINTIFF’S COUNSEL WAS INEFFECTIVE BECAUSE NO MEDICAL EVIDENCE WAS PRESENTED TO SUPPORT PLAINTIFF’S TESTIMONY HE WAS UNABLE TO WORK (SECOND DEPT).

The Second Department, after noting plaintiff was entitled to counsel under Judiciary Law 35 (8) in this child-support contempt proceeding in Supreme Court, determined plaintiff’s counsel was ineffective. Plaintiff testified he could not meet his child-support obligations because of medical problems, but counsel did not present any medical evidence:

The plaintiff was denied effective assistance of counsel in connection with that branch of the defendant’s cross motion which was to hold him in contempt for wilful violation of the 2013 order. Under Judiciary Law § 35(8), a person has the right to the assistance of counsel in any matter before the Supreme Court, under circumstances whereby, if such proceeding was pending in the Family Court, such court would be required, by section 262 of the Family Court Act, to appoint counsel, such as the matter here in which the defendant sought to hold the plaintiff in contempt for wilful violation of the 2013 [child-support] order and sought his incarceration (see Judiciary Law § 35[8]; Family Ct Act § 262). The standard for effective assistance of counsel in such cases is whether, viewed in its totality, there was meaningful representation … . Here, the plaintiff’s attorney failed to present any medical evidence, whether in the form of admissible medical records or testimony of medical witnesses, to support the plaintiff’s defense that his failure to pay child support in accordance with the 2013 order was not wilful, but rather due to his medical condition which rendered him unable to work. Winter v Winter, 2021 NY Slip Op 03865, Second Dept 6-16-21

June 16, 2021