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FAMILY COURT, UPON REMITTAL AFTER A PRIOR REVERSAL ON APPEAL, DID NOT MAKE A SUFFICIENT RECORD FOR REVIEW OF ITS ORDER RE: FATHER’S PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court, upon remittal after a prior reversal, did not create a sufficient record to allow review of its order re: father’s parental access schedule:

“In determining custody and [parental access] issues, the most important factor to be considered is the best interests of the child” … . “Generally, [parental access] should be determined after a full evidentiary hearing to determine the best interests of the child” … .

“A trial court must state in its decision ‘the facts it deems essential’ to its determination” … . “Effective appellate review, especially in proceedings involving child custody determinations, ‘requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses'” … . Under the circumstances of this case, the record is not sufficient for this Court to conduct an intelligent review of the evidence.

Furthermore, the children are of such an age and maturity that information regarding their preferences is necessary to create a sufficient record to determine their best interests … . Matter of Georgiou-Ely v Ely, 021 NY Slip Op 02796, Second Dept 5-5-21

 

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RATHER THAN TERMINATING MOTHER’S PARENTAL RIGHTS, FAMILY COURT SHOULD HAVE SUSPENDED JUDGMENT TO GIVE MOTHER A CHANCE TO PREPARE FOR REUNIFICATION WITH HER CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the termination of mother’s parental rights was not demonstrated to be in the child’s best interests. Judgment should have been suspended so mother could prepare for reunification with the child:

At the dispositional stage of a proceeding to terminate parental rights, the Family Court must make its determination based solely on the best interests of the child (see Family Ct Act § 631). Depending on the best interests of the child, the court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights (see Family Ct Act §§ 631, 633[b]; Social Services Law § 384-b[8][f]). A dispositional order suspending judgment provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child (see Family Ct Act § 633 …). …

… [I]t is undisputed that the mother engaged in regular phone conversations with the child at least once a week; that, since March 2019, following a difficult pregnancy with her younger child which impeded her ability to travel from her apartment in upper Manhattan to the agency in Jamaica, Queens, where visitation occurred, she had been regularly visiting the child; that the child continued to refer to the mother as her mother and her foster parent as her auntie; and that there is a strong bond between the mother and the child and between the child and the mother’s younger child, who resided with the mother. In addition, the mother had completed a drug treatment program and was drug free, attended a parenting class with intentions to attend additional classes, underwent a mental health evaluation, and was receiving therapy and preventive services. Further, following the child’s placement in foster care, the mother, who, at the time that she gave birth to the child, was 20 years old and living in a group home, having entered foster care herself at the age of 17, obtained an associate’s degree and secured an apartment. Moreover, in a related derivative neglect proceeding filed with respect to the mother’s younger child, the mother was granted a suspended judgment which expired in July 2020. Matter of Grace G. (Gloria G.), 2021 NY Slip Op 02795, Second Dept 5-5-21

 

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THE JUDGE’S MAINTENANCE AWARD MAY NOT HAVE BEEN PROPERLY BASED UPON THE FACTORS ENUMERATED IN DOMESTIC RELATIONS LAW 236; MATTER REMITTED (FOURTH DEPT). ​

The Fourth Department, vacating the maintenance award and remitting for recalculation, determined Supreme Court did not set forth the factors for the maintenance calculation as required by Domestic Relations Law 236:

Defendant husband appeals from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a period of 17 years. On appeal, he contends that Supreme Court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in section 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). We agree and further conclude that the court erred in awarding plaintiff maintenance without sufficiently setting forth the relevant factors enumerated in section 236 (B) (6) (e) that it relied on in reaching its determination. Although the court need not specifically cite the factors enumerated in that section, its analysis must show that it at least considered the relevant factors in making its determination … . The determination must also “reflect[] an appropriate balancing of [the wife’s] needs and [the husband’s] ability to pay” … .

… [T]he court stated that it awarded plaintiff $750 per week—an amount deviating from the statutory guidelines—for a duration in excess of the statutory guidelines based on the length of the marriage, the parties’ disproportionate earning capacities, and defendant’s tax debt. However, although the statutory guidelines use the length of the marriage to calculate the duration of the maintenance award … , the length of the parties’ marriage is not a factor enumerated in section 236 (B) (6) (e). Further, the court did not state what factors it considered, in addition to actual earnings, in determining the parties’ earning capacities … . Moreover, the court did not determine whether defendant’s substantial tax debt would impede his ability to pay plaintiff’s maintenance award … . Thus, the court failed to show that it considered any of the factors enumerated in section 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. Gutierrez v Gutierrez, 2021 NY Slip Op 02662, Fourth Dept 4-30-21

 

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SUPREME COURT DID NOT CONDUCT A HEARING OR FOLLOW THE CHILD SUPPORT STANDARDS ACT FORMULA FOR CHILD SUPPORT CALCULATIONS; IN ADDITION THE COURT DID NOT CONSIDER THE STRONG PUBLIC POLICY AGAINST RESTITUTION OR RECOUPMENT OF CHIILD SUPPORT ALREADY PAID; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not conduct a hearing, did not follow the child support formula of the Child Support Standards Act (CSSA) and did not consider the public policy against recoupment or restitution of child support already paid. The matter was remitted for a hearing and a new determination:

… [T]he Supreme Court did not calculate the basic child support obligation for the children, which is done by (1) determining the combined parental income and (2) multiplying the amount of combined parental income up to the statutory cap by the appropriate child support percentage (see Domestic Relations Law § 240[1-b][c]). The court did not determine the combined parental income or identify the applicable statutory cap. It further failed to determine each parent’s pro rata share of the basic child support obligation based on his or her income in proportion to the combined parental income … . Rather, the court incorrectly determined the amount of child support owed to the custodial parent based solely on the noncustodial parent’s income multiplied by the appropriate child support percentage, which the court determined to be 25% of the plaintiff’s income. However, the appropriate basic child support figure for the parties’ two children was 25% of the combined parental income, as prorated between the parties in accordance with the statute (see Domestic Relations Law § 240[1-b][b][3][ii]). … [T]here is no indication that the court considered “[t]he financial resources of the custodial and non-custodial parent” or whether “the gross income of one parent is substantially less than the other parent’s gross income” … . Park v Park, 2021 NY Slip Op 02536, Second Dept 4-28-21

 

THE PARTIES MARRIED IN 1974, STARTED DIVORCE PROCEEDINGS IN 1991, DISCONTINUED THE DIVORCE AND BEGAN LIVING TOGETHER AGAIN IN 1998, CONTINUED LIVING TOGETHER UNTIL THE INSTANT DIVORCE IN 2015; SUPREME COURT ERRED IN FINDING THE ECONOMIC PARTNERSHIP ENDED IN 1991; MATTER REMITTED FOR RECALCULATION OF THE MARITAL PROPERTY AND COUNSEL FEES (SECOND DEPT).

The Second Department, remitting the matter for recalculation of equitable distribution of marital assets and counsel fees, determined Supreme Court erred in finding that the parties ceased to be an economic partnership when they separated and divorce proceedings were commenced in 1991. The parties were married in 1974. The divorce was discontinued in 1998 when defendant moved back into the marital residence. The couple lived together until the instant separation and divorce proceedings in 2015:

… [T]he parties resided together in the marital residence from 1998 until the commencement of the subject action in 2015, and for most of that time, shared the marital residence with the children. During that time, the parties visited relatives and attended social functions together, went on vacations together, and periodically engaged in sexual relations. Although the parties maintained separate bank accounts and credit cards, the parties filed joint tax returns and shared many of the family’s expenses, including the children’s college tuition and home renovations. Moreover, the parties named each other as executors and beneficiaries in their wills. Thus, the evidence demonstrates that the parties functioned as an “economic partnership” after the discontinuance of the prior divorce action, and the Supreme Court improperly found that the parties “ceased functioning as an economic partnership” and “lived separate financial lives” starting in 1991 … . …

… [T]here was no written agreement to keep the parties’ finances separate (cf. Domestic Relations Law § 236[B][1][d][4]). “Marital partners may agree that property they acquire during the marriage will be divided in a particular manner, but that agreement must be in writing” … , or “be part of an oral stipulation placed upon the record in open court and acknowledged in writing to be free from fraud, undue influence and duress” … . Here, the alleged oral agreement between the parties does not constitute such an agreement. Thus, the distribution of marital property “must be based upon the equitable consideration and application of . . . enumerated factors” … , and the court is required to “set forth the factors it considered and the reasons for its decision” … . Potvin v Potvin, 2021 NY Slip Op 02429, Second Dept 4-21-21

 

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FAMILY COURT SHOULD HAVE CONDUCTED A HEARING IN THIS CUSTODY/PARENTAL ACCESS PROCEEDING AND SHOULD HAVE MADE FINDINGS OF FACT AS REQUIRED BY CPLR 4213 (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing should have been held in this custody/parental access proceeding. The court noted Family Court failed to set forth findings of fact as required by CPLR 4213 (b):

Parental access determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . “While the general right to a hearing in [parental access] cases is not absolute, where ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required” … . Here, the record shows that there were disputed factual issues regarding the finding of the children’s best interests such that a hearing on the father’s parental access was required … . … [W]e note that the decision issued by the Supreme Court failed to comply with CPLR 4213(b) in that it did not set forth findings of fact … . Matter of Vazquez v Bahr, 2021 NY Slip Op 02397, Second Dept 4-21-21

 

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THE ARBITRATORS’ AWARD IN THIS RELIGIOUS DIVORCE PROCEEDING WAS NOT INVALID BECAUSE THE ARBRITRATORS DID NOT STATE THE REASONS FOR THE AWARD, AND THE AWARD WAS NOT INDEFINITE AND NONFINAL; SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration award should not have been vacated. The award, issued by a rabbinical tribunal in a religious divorce proceeding, required the respondent to arrange for the religious divorce (a Get) and required petitioner to accept the religious divorce. A lump sum award and maintenance of $10,000 per month was to be held in escrow until the Get is accepted. Supreme Court held the award was indefinite or nonfinal and the arbitrators failed to state the reasons for the award:

Contrary to the conclusion of the Supreme Court, the arbitrators were not required to give reasons for their arbitration award … . Further, the arbitration award did not leave the parties unable to determine their rights and obligations, resolved the controversy before the arbitrators, and did not create a new controversy; therefore, the arbitration award was not indefinite or nonfinal for purposes of CPLR 7511 … . The respondent’s obligation to pay maintenance continued because he failed to arrange for issuance of a Get and termination of the marriage—not because the terms of the arbitration award were not definite. Matter of Rokeach v Salamon, 2021 NY Slip Op 02393, Second Dept 4-21-21

 

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FAMILY COURT’S DETERMINATION FATHER DID NOT SEXUALLY ABUSE HIS CHILD WAS NOT SUPPORTED BY THE RECORD; THE CHILD’S HEARSAY STATEMENTS WERE CORROBORATED, AND FAMILY COURT’S DECISION TO CREDIT THE TESTIMONY OF FATHER’S EXPERT OVER PETITIONER’S EXPERT WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the allegations father sexually abused his child, Zamir, were proved by a preponderance of the evidence. The hearsay allegations of the child were corroborated by another child and case workers. Father’s expert, relied upon by Family Court, offered speculative testimony about alleged flaws in the approach taken by petitioner’s expert, but acknowledged he had not reviewed the petitioner’s expert’s testimony:

… [W]e find that the petitioner established by a preponderance of the evidence that the father neglected Zamir by sexually abusing him. The Family Court’s finding that there was no evidence presented of “age-inappropriate sexual knowledge” by Zamir is not supported by the record, since the then five-year-old child made an “up down” motion with his hands during the interviews with the petitioner’s expert to demonstrate how he was made to touch the father’s penis … . Further, the court’s finding that there was no evidence presented that the child displayed any “psychological or behavioral characteristics” indicative of having been sexually abused is not supported by the record. The petitioner’s expert testified that Zamir was “engaging” when talking about anything other than the sexual abuse, but used “less words per sentence,” without maintaining eye contact, and became “squirmy” when discussing the sexual abuse, and that “[i]t was very easy to see that he was not comfortable discussing th[at] topic.” In addition, the court’s speculation that Zamir fabricated the claims of sexual abuse because he was angry at the father for other matters is not supported by the record. Matter of Zamir F. (Ricardo B.), 2021 NY Slip Op 02391, Second Dept 4-21-21

 

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY OR INCREASED PARENTAL ACCESS SHOULD NOT HAVE BEEN DENIED WITHOUT AN IN CAMERA INTERVIEW OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for joint custody or an expansion of parental access should not have been denied without an in camera interview of the child:

A modification of a court-ordered custody arrangement must be based upon a showing of a change in circumstances such that the modification is required to protect the best interests of the child … . A child’s changing needs as he or she grows older can sufficiently constitute a change in circumstances … .

Here, in light of the evidence presented by the father and assertions of the attorney for the child, the Family Court should not have determined the father’s petition without conducting an in camera interview with the child. “[W]hile the express wishes of children are not controlling, ‘they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful'” … . Matter of Coleman v Lymus, 2021 NY Slip Op 02389, Second Dept 4-21-21

 

THE EVIDENCE THAT THE PATERNAL UNCLE STRUCK THE CHILD ON THE ARM AFTER SHE MADE FUN OF AN ADULT IN THE HOUSEHOLD WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT AND DERIVATIVE NEGLECT FINDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence the child’s paternal uncle struck the child on the arm after the child had made fun of another adult in the household did not support a neglect and derivative neglect finding. (The paternal uncle denied striking the child):

While those legally responsible for the care of children “have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare” … , the use of excessive corporal punishment constitutes neglect … . The petitioner has the burden of proving neglect by a preponderance of the evidence … . Although a single incident of excessive corporal punishment may suffice to support a finding of neglect in a given case, there are instances where the record will not support such a finding, even where the use of physical force was inappropriate … . Under the circumstances presented here, we agree with the paternal uncle and the attorneys for the respective children that the Family Court erroneously found that ACS [Administration for Children’s Services]  established by a preponderance of the evidence that the paternal uncle neglected Myiasha by inflicting excessive corporal punishment upon her. ACS failed to establish that the paternal uncle’s action in inappropriately striking the child rose to the level of neglect, or that he intended to hurt Myiasha, or exhibited a pattern of excessive corporal punishment … . Moreover, there was insufficient evidence that Myiasha suffered the requisite impairment of her physical, mental, or emotional well-being to support a finding of neglect … . Matter of Myiasha K. D. (Marcus R.), 2021 NY Slip Op 02290, Second Dept 4-14-21

 

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