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GRANDMOTHER SHOULD HAVE BEEN NOTIFIED OF HER RIGHT TO COUNSEL IN THIS CUSTODY CASE; MATTER SENT BACK TO FAMILY COURT TO DETERMINE WHETHER GRANDMOTHER WAS ELIGIBLE FOR ASSIGNED COUNSEL (THIRD DEPT).

The Third Department determined grandmother should have been notified of her right to counsel in this custody case. But the question remains whether grandmother would have qualified (financially) for assigned counsel. The matter was sent back to Family Court to rule on grandmother’s eligibility for assigned counsel:

We find merit to the grandmother’s argument that she was potentially eligible for the assignment of counsel at the March 2017 appearance and that Family Court erred in failing to advise her of that right. The purpose of providing counsel to certain persons [*3]involved in Family Court proceedings is to provide protection against “infringements of fundamental interests and rights” (Family Ct Act § 261). The grandmother was listed as a respondent in the mother’s modification petition brought under Family Ct Act article 6, part 3 … , which sought sole legal and primary physical custody of the child. As of the initial appearance on that petition in March 2017, the grandmother jointly shared “secondary legal custody” with the mother. Accordingly, the mother’s request for sole legal custody of the child, if granted, had the potential to alter the grandmother’s custodial rights. We are mindful that the mother subsequently withdrew her request for custody and instead advocated for the child’s placement with the grandmother. However, she did not do so until the fact-finding hearing, nearly four months after the March 2017 appearance. Family Ct Act § 262 (a) requires the court to advise an eligible person of the right to counsel “[w]hen such person first appears in court” … . As the grandmother was potentially eligible for assigned counsel under Family Ct Act § 262 (a), upon a showing of the required financial circumstances, the court was obligated to advise her of that right at the March 2017 appearance … . Matter of Renee S. v Heather U., 2021 NY Slip Op 03635, Third Dept 6-10-21

 

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IN DETERMINING WHETHER A PRIMA FACIE CASE HAS BEEN MADE OUT IN A FAMILY OFFENSE PROCEEDING, CREDIBILITY IS IRRELEVANT (SECOND DEPT).

The Second Department, reversing Family Court, determined the motion to dismiss the family offense petition for failure to make out a prima facie case should not have been granted, noting that the credibility of the evidence is not a factor to be considered at that stage:

In a family offense proceeding, the petitioner has the burden of establishing that the charged conduct was committed as alleged in the petition by a fair preponderance of the evidence (see Family Ct Act § 832 … ). “‘In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom . . . The question of credibility is irrelevant, and should not be considered'” ). Here, the Family Court failed to properly apply this standard. Viewing the petitioner’s evidence in the light most favorable to her, and accepting the evidence as true, it established a prima facie case … . Matter of Prince v Ford, 2021 NY Slip Op 03591, Second Dept 6-9-21

 

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THE ATTORNEY FOR THE CHILD, IN A BRIEF TO THE APPELLATE COURT, ALERTED THE COURT TO NEW INFORMATION RELEVANT TO THE CUSTODY RULING BY FAMILY COURT; THE MATTER WAS REMITTED FOR A REOPENED HEARING (SECOND DEPT).

The Second Department sent the matter back to Family Court for a reopened custody hearing after the attorney for the child alerted the court to new relevant information:

… [T]he attorney for the child, in the brief submitted to this Court on the child’s behalf, has brought to this Court’s attention certain alleged new developments including that shortly after the child began living with the father, the child reported that the father told her that the mother was evil, and the child stated that she no longer wanted to see the mother at all. “As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render the record on appeal insufficient to review whether a child custody determination is still in the best interests of the children” … . In light of the alleged new developments brought to this Court’s attention by the attorney for the child, the record is no longer sufficient to determine which arrangement is in the best interests of the child … .

… [W]e remit the matter to the Family Court … for a reopened hearing at which the alleged new facts shall be considered, and a new custody determination thereafter. In so doing, we express no opinion as to the appropriate determination. Matter of Magana v Delph, 2021 NY Slip Op 03589, Second Dept 6-9-21

 

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THE EVIDENCE DID NOT DEMONSTRATE THE DEVELOPMENT OF A PARENT-CHILD RELATIONSHIP BETWEEN RAYMOND F AND THE CHILD; THEREFORE RAYMOND F’S REQUEST FOR A GENETIC MARKER TEST SHOULD NOT HAVE BEEN DENIED (THIRD DEPT).

The Third Department, reversing Family Court, determined Raymond F’s request for a genetic marker test should not have been denied. The evidence did not demonstrate a parent-child relationship such that Raymond F should be equitably estopped from denying paternity:

The application of the doctrine of equitable estoppel does not involve the equities between adult participants to the paternity proceedings … . “Rather, in the context of a paternity proceeding, it is the child’s justifiable reliance on a representation of paternity that is considered and, therefore, the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the subject child” … . …

The trial testimony established that the mother and Trini G., the mother’s boyfriend with whom she and her children lived for nine years (from the time the child was two to three months old), “co-parented” all of the children by contributing financially to their care and feeding, bathing and playing with them. Trini G. referred to the child as “stepson” and the child called him “daddy.” The record established that Reymond F. had no contact with the child since birth, except during sporadic visits between Reymond F. and his two older children. Reymond F. testified that he did not do “anything” with the child during these visits, was not called “dad” and did not call the child “son.” He further testified that he never called the child on the phone, never gave him gifts and never checked on his educational or medical issues. The mother testified that, while she did not encourage the child to have a relationship with Reymond F., the child knew that Reymond F. was his biological father. Matter of Montgomery County Dept. of Social Servs. v Trini G., 2021 NY Slip Op 03489, Third Dept 6-3-21

 

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INFANT PLAINTIFF, H.M., WAS INJURED BY HOT WATER IN THE SHOWER; THE PROPERTY OWNER WHO REPLACED THE WATER HEATER MAY BE LIABLE; THE FOSTER-CARE SERVICE WHICH PLACED H.M. IN THE HOME, HOWEVER, COULD NOT HAVE FORESEEN THE INCIDENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the property owner could be liable for injury to a child, H.M. caused by hot water in the shower. The defendant placement service (Leake) had placed H,M. in the foster care of defendant Butler who lived in a home owned by Alicea. Butler had turned on the shower and was picking up H.M.’s clothes when H.M. climbed into the tub. There was a question of fact whether the property owner, Alicea, was liable because of conflicting expert evidence about the danger posed by the temperature of the water. However, the incident was not foreseeable from the perspective of the placement agency (Leake). Therefore, Leake’s motion for summary judgment should have been granted:

… [T]here is an issue of fact as to whether [Alicea] created the dangerous hot water temperature when he replaced the home’s hot water heater prior to the accident. …

Leake demonstrated prima facie entitlement to summary judgment dismissing the negligent supervision claim against it because it established that it did not have “sufficiently specific knowledge or notice of the dangerous conduct which caused injury,” and “[t]he scalding hot bath water was an intervening act or event that is divorced from and not the foreseeable risk associated with. . .defendant’s alleged negligence” … . The excessively hot water was not the foreseeable risk associated with Leake’s alleged negligence in placing more than five children in the home, and the momentary inattention of Butler was not an act that should have been foreseeable by Leake in the exercise of reasonable care … . H.M. v City of New York, 2021 NY Slip Op 03376, First Dept 5-27-21

 

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FAMILY COURT PROPERLY CONSIDERED THE BEST INTERESTS OF THE TWO CHILDREN IN ITS PLACEMENT DECISION; STRONG TWO-JUSTICE DISSENT (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined Family Court properly considered the best interests of two children in deciding where the children should be place. The dissent disagreed. The decision is too detailed and fact-specific to fairly summarize here:

At its essence, this appeal presents a circumstance where everyone involved—the foster mother, the godmother, the attorney for the child, ACS, and the Family Court—agreed that the child and his half-sibling should be kept together. The court found that both the godmother’s home and the foster mother’s home were entirely suitable, but in choosing between the two, properly noted that the half-sibling’s father did not consent to the half-sibling being placed anywhere except with the godmother. The court’s consideration of that fact did not mean that the child’s best interests were not globally considered, but was instead a relevant and necessary fact that the court needed to take into account in determining how to best promote the child’s best interests and the obvious benefit to him of keeping the two half-siblings together as each other’s sole living, known, biological relatives. It was not error for the court to do so, and in fact, the court would have been derelict in its duties had it failed to do so. Matter of Adonnis M. (Kenyetta M.), 2021 NY Slip Op 03322, Second Dept 5-26-21

 

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FAMILY COURT SHOULD NOT HAVE ORDERED THE PARTIES TO EQUALLY SHARE THE COSTS OF FATHER’S SUPERVISED VISITATION WITHOUT EVALUATING THE PARTIES’ FINANCES (SECOND DEPT).

The Second Department determined Family Court properly found father had committed the family offense of harassment and properly ordered therapeutic supervised parental access for father. However, Family Court should not have order the parties to equally share the expense of supervised parental access without evaluating the parties’ ability  to pay:

The Family Court should not have directed the parties to equally share the costs of the father’s supervised parental access, without evaluating the parties’ “economic realities,” including the father’s ability to pay and the actual cost of each visit … . Accordingly, we remit the matter to the Family Court, Orange Country, for a hearing to resolve those issues, and a determination thereafter regarding the parties’ respective shares of the costs for the father’s supervised therapeutic parental access. Matter of Livesey v Gulick, 2021 NY Slip Op 03321, Second Dept 5-26-21

 

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FATHER’S ABILITY TO BRING FUTURE PETITIONS FOR CUSTODY SHOULD NOT HAVE BEEN CONDITIONED UPON HIS UNDERGOING TREATMENT OR COUNSELING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s ability to bring future custody petitions should not have been condition upon father’s undergoing counseling or treatment:

A court deciding a custody proceeding may “direct a party to submit to counseling or treatment as a component of a [parental access] or custody order” … . “A court may not, however, order that a parent undergo counseling or treatment as a condition of future [parental access] or reapplication for [parental access] rights” … . Here, the Family Court erred in conditioning the filing of any future petitions by the father to modify parental access upon his successful completion of an anger management class and a negative drug test, and we modify the order so as to eliminate that condition. Matter of Hardy v Hardy. 2021 NY Slip Op 03320. Second Dept 5-26-21

 

IN A COMPLEX MARITAL-PROPERTY, MAINTENANCE AND CHILD-SUPPORT ANALYSIS TOO DETAILED AND COMPREHENSIVE TO SUMMARIZE HERE, THE COURT NOTED THAT, ABSENT A VOLUNTARY AGREEMENT, A PARENT MAY NOT BE DIRECTED TO SUPPORT A CHILD AFTER THE AGE OF 21 (SECOND DEPT).

The Second Department, in an extensive marital-property, maintenance and child-support decision too detailed and comprehensive to fairly summarize here, noted that a parent is not obligated to support a child over the age of 21:

The defendant … contends that the Supreme Court improperly directed him to pay basic child-support and add-on expenses for the child after she reaches the age of 21. A parent has no legal obligation to provide for or contribute to the support of a child over the age of 21 … . “In the absence of a voluntary agreement, a parent may not be directed to pay support or to contribute to the college education of a child who has attained the age of 21 years, and has no obligation to continue the support of a child after the child reaches the age of 21 years” … . Here, there was no voluntary agreement, and accordingly, the court should not have directed the defendant to pay basic child support and add-on expenses for the child after she reaches the age of 21. Sinnott v Sinnott, 2021 NY Slip Op 03073, Second Dept 5-12-21

 

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THE USUAL STRICT CRITERIA FOR VACATING A DEFAULT ORDER ARE RELAXED IN CHILD CUSTODY PROCEEDINGS; MOTHER’S MOTION TO VACATE THE DEFAULT ORDER AWARDING CUSTODY TO FATHER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate the default order granting custody to father should have been granted. The usual strict criteria for a default order are relaxed in child custody matters:

The determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … . “A party seeking to vacate an order entered upon his or her default is required to demonstrate a reasonable excuse for the default and the existence of a potentially meritorious cause of action or defense” … . However, “the law favors resolution on the merits in child custody proceedings,” and thus the “general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody” … . Matter of Williams v Worthington, 2021 NY Slip Op 03040, Second Dept 5-12-21

 

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