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THE JUDGE SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO SET A SCHEDULE FOR MOTHER’S PARENTAL ACCESS TO THE PARTIES IN THIS CUSTODY ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, held the judge should not have left it up to mother and the non-family-member (Pierce) who brought the custody petition to determine mother’s parental access:

… [A[ “court may not delegate its authority to determine parental access to either a parent or a child” … . Here, the Family Court improperly delegated the determination of the mother’s parental access to the mother and Pierce. The record reflects that the relationship between Pierce and the mother has deteriorated and reveals troubling interactions between the parties, including one alleged instance where Pierce prevented the mother from visiting the child during a scheduled visitation. Accordingly, we remit the matter … to expeditiously establish both a supervisor for the mother’s parental access with the child as well as a specific schedule for the mother’s parental access in accordance with the best interests of the child that shall be observed by both the mother and Pierce … . Matter of Pierce v Joyner, 2025 NY Slip Op 04250, Second Dept 7-23-25

Practice Point: The court cannot delegate its authority to set up a parental-access schedule to the parties in a custody action.

 

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THE RECORD DID NOT SUPPORT PLACEMENT OF THE AUTISTIC CHILD IN A “QUALIFIED RESIDENTIAL TREATMENT PROGRAM” (QRTP) AS OPPOSED TO FOSTER CARE; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, reversing Family Court, determined the record did not support placement of the child, who is on the autism spectrum, in a “qualified residential treatment program” (QRTP) pursuant to the New York State Family First Prevention Service Act. The case gave the court the opportunity to decide an issue of first impression, i.e., which factors a court must consider in approving a child’s placement in a QRTP:

Here, since the qualified individual assessed the child and determined that placement in a QRTP would not be appropriate, the Family Court could approve the child’s placement in the QRTP only if it complied with the requirements set forth in Family Court Act § 1055-c(2)(c). Although the court found that QRTP placement was inconsistent with the child’s long-term permanency goal of adoption and that the child’s needs could be met in a less restrictive environment, the court nevertheless approved the child’s placement in a QRTP. The court, in essence, based this determination on a finding that there was not an alternative setting available that could meet the child’s needs in a less restrictive environment. * * *

However, the Family Court’s findings in this regard were not supported by the record. The court’s finding that there was not an alternative setting available was based on Loehr’s [the foster care supervisor’s] testimony that SCO [a foster-care agency] did not have any foster family homes available that could meet the child’s needs but that SCO was working to place the child in a foster family home for developmentally disabled children and was actively exploring families to adopt the child. On cross-examination, Loehr testified that SCO had not yet placed the child in a foster family home for children with developmental disabilities or a therapeutic foster family home through another agency because this would require a “step-up” conference, yet Loehr failed to explain why a “step-up” conference had not been held during the two months in which the child had been placed in the QRTP. This testimony was insufficient to support the court’s finding that there was not an alternative setting available that could meet the child’s needs in a less restrictive environment. Furthermore, Loehr’s testimony that the child had continuously lived in a foster family home setting from 2019 until January 2024, during which time his needs consistently had been met, calls into question the purported unavailability of any alternative, less restrictive settings. Matter of Joseph D.L. (Keisha T.M.), 2025 NY Slip Op 04178, Second Dept 7-16-25

Practice Point: Consult this opinion for the criteria for placement of a child in a “qualified residential treatment program” (QRTP) as opposed to foster care. The criteria were not met here.

 

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ALTHOUGH A CHILD WAS PRESENT IN THE HOME WHEN FATHER STRUCK HIS PREGNANT GIRLFRIEND, THERE WAS NO EVIDENCE THE CHILD SAW OR HEARD THE INCIDENT AND NO EVIDENCE THE CHILD WAS UPSET BY THE INCIDENT; THE NEGLECT AND DERIVATIVE NEGLECT (OF THE THEN UNBORN CHILD) FINDINGS REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the findings that father neglected a child and derivatively neglected a child who was not yet born at the time of the incident. The findings were based on an incident in which father struck his girlfriend, who was pregnant, while a child, Jolie M., was in the house. However, the evidence did not demonstrate Jolie M. witnessed or heard the incident:

The testimony of the father’s girlfriend and an ACS child protective specialist established that the father struck his girlfriend in the mouth while Jolie M. was in her nearby bedroom down the hallway. However, the testimony also indicated that Jolie M. did not see the incident or any resulting injuries, did not hear the father’s girlfriend’s plea for the father to stop hitting her, and was otherwise unaware that a domestic violence incident, as opposed to a mere verbal argument, was occurring … . Moreover, no evidence was offered to suggest that Jolie M. was frightened or upset by the incident, and the testimony established that, when recounting the events in a subsequent interview, the child presented a calm demeanor, interacted normally and comfortably with the father, and reportedly felt safe with the father … . In the absence of evidence that Jolie M.’s physical, mental, or emotional condition was impaired or in danger of becoming impaired by the father’s acts of violence against his girlfriend, the court’s finding that the father neglected that child is not supported by a preponderance of the evidence … .

Consequently, the Family Court’s further finding that the father derivatively neglected Jose M. based on the same domestic violence incident was not supported by a preponderance of the evidence … . Matter of Jose M. (Jose M.), 2025 NY Slip Op 04094, Second Dept 7-9-25

Practice Point: To prove neglect based upon domestic violence there must be proof the child saw or heard the incident and was upset by it.

 

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THE FOSTER CARE AGENCY DID NOT PROVE IT MADE DILIGENT EFFORTS TO ENCOURAGE AND STRENGTHEN THE PARENT-CHILD RELATIONSHIP BEFORE FILING THE PETITION TO TERMINATE MOTHER’S PARENTAL RIGHTS; PETITION DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the petitioner foster-care-agency in this termination of parental rights proceeding did not demonstrate it made diligent efforts to encourage and strengthen the parent-child relationship before filing the petition:

When a foster care agency brings a proceeding to terminate parental rights on the ground of permanent neglect, it must, as a threshold matter, prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to encourage and strengthen the parent-child relationship” ( … see Social Services Law § 384-b[7][a]). “Those efforts must include counseling, making suitable arrangements for parental access, providing assistance to the parents to resolve the problems preventing the child’s discharge, and advising the parents of the child’s progress and development” … . “An agency must always determine the particular problems facing a parent with respect to the return of his or her child and make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps” … .

Here, the petitioner failed to meet its initial burden of establishing by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship between the mother and the child (see Social Services Law § 384-b[7][a], [f]). The evidence adduced at the fact-finding hearing failed to establish that the petitioner assisted the single, working mother with obtaining childcare services, followed up with her therapy progress for six months, or built a rapport with her in order to engage in cooperative dialogue…. . Matter of Syiah C.M. (Shatasia C.M.), 2025 NY Slip Op 04095, Second Dept 7-9-25

Practice Point: Consult this decision for some insight into what a foster care agency must try to do to strengthen the parent-child relationship before filing a petition to terminate a mother’s parental rights.

 

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IN A CRIMINAL CONTEMPT PROCEEDING BASED UPON AN ACT WHICH WAS NOT COMMITTED IN THE IMMEDIATE VIEW AND PRESENCE OF THE COURT, THE CONTEMPT MOTION MUST BE PERSONALLY SERVED; HERE THERE WAS NO PROOF THE MOTION WAS PROPERLY SERVED, DEPRIVING FAMILY COURT OF JURISDICTION (THIRD DEPT).

The Third Department, reversing Family Court, determined the criminal contempt motion against father for bringing a recording device into court should have been dismissed because there was no proof father was personally served with the motion:

A finding of criminal contempt, as is pertinent here, must be supported by a showing of “[d]isorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority” (Judiciary Law § 750 [A] [1]), and proof of guilt must be established beyond a reasonable doubt … . “Such a contempt, committed in the immediate view and presence of the court, may be punished summarily; when not so committed, the party charged must be notified of the accusation, and have a reasonable time to make a defense” (Judiciary Law § 751 [1] …). To this end, a “criminal contempt proceeding requires personal service on the contemnor” … . “A court lacks personal jurisdiction over a respondent who is not properly served with process” and, “[w]hen the requirements for service of process have not been met, it is irrelevant that the respondent may have actually received the documents, because notice received by means other than those authorized by statute does not bring a respondent within the jurisdiction of the court” … .

Family Court acknowledged in its written order that it was unable to summarily hold the father in contempt, as the only direct evidence of his possession of a prohibited recording device was discovered outside of the courtroom by court officers who were not immediately available to testify. As such, personal service of the motion charging the father with contempt was required. Nothing in the record reflects that such service was effectuated. We note that, to the extent that the court’s notice of motion indicates that it was mailed to the father to a Pennsylvania address, there is similarly no affidavit of service/mailing and no receipt of mailing in the record. Matter of Ruoyao P. (Zhechen P.), 2025 NY Slip Op 04065, Third Dept 7-3-25

Practice Point: Consult this decision for the procedural requirements for a motion charging criminal contempt for an act which was not committed in the immediate view and presence of the court. The motion must be personally served in accordance with the CPLR. Failure of proper service deprives the court of jurisdiction.

 

MOTHER’S ABANDONMENT OF HER PARENTAL OBLIGATIONS IS BEST ADDRESSED IN FATHER’S PARAMOUR’S ADOPTION PROCEEDINGS IN SURROGATE’S COURT; MOTHER’S MOTION TO DISMISS FATHER’S CUSTODY PETITION IN FAMILY COURT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, in a full-fledged opinion by Justice Lynch, determined that the issue of mother’s abandonment of her parental obligations was best addressed the father’s paramour’s adoption proceedings in Surrogate’s Court. Father’s custody petition in Family Court should have been dismissed:

The operative point now is that the paramour has initiated adoption proceedings in Surrogate’s Court on the basis of the mother’s abandonment of the children for a period of six months (see Domestic Relations Law § 111 [2] [a]). As Family Court observed, “the Surrogate would have to determine identical issues and allegations as to whether the mother abandoned the children.” In doing so, the Surrogate will be governed by the evidentiary criteria for an abandonment outlined in Domestic Relations Law § 111 (6) (a-d). By comparison, these same statutory criteria do not expressly apply to a custody modification proceeding. It bears further emphasis that “[a]bandonment, as it pertains to adoption, relates to such conduct on the part of a parent as evinces a purposeful ridding of parental obligations and the foregoing of parental rights — a withholding of interest, presence, affection, care and support” … .

Given that the focus of this entire matter is on the issue of adoption, we conclude that the appropriate course is for the Surrogate to determine the question of abandonment. To have this question addressed on parallel tracks in both Family Court and Surrogate’s Court would be both unnecessary and prejudicial to the interests of the parties, particularly given that the paramour is not a party to the Family Court proceeding. As such, the mother’s motion to dismiss the petition should have been granted. Matter of Jason TT. v Linsey UU., 2025 NY Slip Op 04067, Third Dept 7-3-25

Practice Point: Consult this opinion for a discussion of the parallel proceedings in Family Court and Surrogate’s Court where mother’s abandonment of her parental obligations is the central issue. Here the court determined the issue was best handled in father’s paramour’s adoption proceedings in Surrogate’s Court, as opposed to father’s modification of custody proceedings in Family Court.

 

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IN THIS DIVORCE PROCEEDING, THE ATTORNEY FOR THE CHILDREN DID NOT ASCERTAIN THE POSITION OF THE ELDEST CHILD (WHO IS AUTISTIC, NONVERBAL AND HAS A SEIZURE DISORDER) AND DID NOT HAVE A THOROUGH UNDERSTANDING OF THE CHILD’S CIRCUMSTANCES; THE MOTION TO APPOINT A NEW ATTORNEY SHOULD HAVE BEEN GRANTED; IN ADDITION, GIVEN THE CONFLICTING CONTENTIONS AND THE ELDEST CHILD’S SPECIAL NEEDS, THE MOTION FOR A NEUTRAL OR INDEPENDENT FORENSIC EXAMINATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce proceeding, determined the defendant’s motion to appoint a new attorney for two of the children and for a neutral or independent forensic examination should have been granted:

The parties were married in 2010 and have three children. The eldest child is autistic, is nonverbal, and has a seizure disorder. * * *

Pursuant to 22 NYCRR 7.2, the attorney for the child must zealously advocate the child’s position … . “In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” … . “If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child . . . . The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests” … . An attorney for the child may substitute his or her judgment only when he or she is “convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” … . In such circumstance, “the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position” … . “An [attorney for the child] should not have a particular position or decision in mind at the outset of the case before the gathering of evidence . . . . After an appropriate inquiry, it is entirely appropriate, indeed expected, that a[n attorney for the child] form an opinion about what action, if any, would be in a child’s best interest” … .

… [T]he defendant demonstrated that the attorney for the children failed to adequately ascertain the eldest child’s position to the extent of and in a manner consistent with the child’s capacities and failed to have a thorough knowledge of the child’s circumstances … .

… In any action for a divorce, the court may appoint an appropriate expert to give testimony with respect to custody or parental access (see 22 NYCRR 202.18). “In custody disputes, the value of forensic evaluations of the parents and children has long been recognized” … . “Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final determination” … .

… Supreme Court improvidently exercised its discretion when it failed to direct a neutral forensic evaluation of the parties and the children, in light of, inter alia, the parties’ conflicting contentions and the eldest child’s special needs (see 22 NYCRR 202.18 …). Sandiaes v Sandiaes, 2025 NY Slip Op 03833, Second Dept 6-25-24

Practice Point: Consult this decision for an explanation of the role of the attorney for the child in divorce proceedings and an example of when the failure to direct an independent or neutral forensic examination in divorce proceedings is an abuse of discretion.

 

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THE FAMILY OFFENSE OF HARASSMENT REQUIRES A COURSE OF CONDUCT; A SINGLE, ISOLATED INCIDENT IS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the evidence of the family offense of harassment was not sufficient. A single isolated incident is not enough:

” … [A] person commits the family offense of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she ‘engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose'” … . “[T]here is no question that an isolated incident cannot support a finding of harassment” … .

Here, contrary to the Family Court’s finding, the father failed to establish by a fair preponderance of the evidence that the mother committed the family offense of harassment in the second degree, as the father failed to identify more than an isolated incident (see Penal Law § 240.26[3] …). The father testified to only one isolated incident involving a verbal dispute that he had with the mother and her husband … . That dispute occurred on the driveway of the father’s home when the mother and her husband dropped off the child at the father’s home, instead of at a police station, which the father claimed was the agreed upon exchange location. Matter of Martinez v Toole, 2025 NY Slip Op 03721, Second Dept 6-18-25

Practice Point: The family offense of harassment requires proof of a course of conduct, a single incident does not suffice.​

 

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WITHOUT AN AGREEMENT ON THE RECORD, A FAMILY COURT JUDGE CANNOT ORDER RESTITUTION IN A JUVENILE DELINQUENCY PROCEEDING FOR ITEMS NOT RECITED IN THE PETITION (THIRD DEPT).

The Third Department, reversing Family Court in this juvenile delinquency proceeding, determined there was nothing in he record demonstrating respondent (juvenile) accepted an admission in exchange for restitution on all charges. The order of restitution was reversed:

Family Court may order a person who has been adjudicated a juvenile delinquent to make “restitution in an amount representing a fair and reasonable cost to replace the property [or] repair the damage caused by” him or her (Family Ct Act § 353.6 [1] [a]). In doing so, Family Court has “broad discretion” in determining the proper disposition in a juvenile delinquency proceeding … , but, as a court of limited jurisdiction, remains constrained to exercise the powers granted to it by statute … . Unlike the Penal Law, which permits restitution for damage to property that was not alleged in the charging document but still “part of the same criminal transaction” (Penal Law § 60.27 [4] [a]), there is “no parallel provision in Family Court Act § 353.6,” thus restitution is generally limited to those items recited in the petition … . To this further point, “a juvenile may be required to pay restitution for a charge to which he or she did not admit only where there is a recorded agreement to accept an admission in exchange for restitution” … . Matter of Juan Z. (Juan Z.), 2025 NY Slip Op 03674, Third Dept 6-18-25

Practice Point: Unlike under the Penal Law, the ability of a Family Court judge under the Family Court Act to order restitution in a juvenile delinquency proceeding is limited to the items recited in the petition and/or in an agreement on the record.

 

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MOTHER’S BOYFRIEND, WHO LIVED WITH MOTHER AND DAUGHTER FOR FIVE MONTHS BEFORE ABUSING THE DAUGHTER, MET THE CRITERIA FOR A “PERSON LEGALLY RESPONSIBLE FOR THE CHILD” AND WAS THEREFORE A PROPER PARTY IN THIS ABUSE/NEGLECT PROCEEDING; COMPREHENSIVE TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, affirming Family Court’s abuse finding against mother’s live-in boyfriend, Robert, over a comprehensive two-justice dissent, determined Roberto met the criteria for “a person legally responsible” for the child, B.F. B.F. alleged Roberto touched her inner thigh and vagina. Both the majority and the dissenters go through the criteria for “a person legally responsible for the child” in great detail:

Family Court conducted a fact-finding hearing over several days. B.F. testified that Roberto lived with her and her mother for approximately five months. She stated that during the time they lived together, she and Roberto would “always talk to each other” and grew “very close.” * * *

B.F.’s mother testified that Roberto moved in a week after they started dating. Roberto came home around 6:00 p.m. and left around 7:00 a.m. for work. Roberto contributed $100 every week for rent, bills, and home expenses. * * *

The court credited the testimony of B.F. and her mother, which established that Roberto resided in the home for five months prior to the abuse.

The determination of whether a particular person has acted as the functional equivalent of a parent is a “fact-intensive inquiry which will vary according to the particular circumstances of each case” … . Factors to consider include “(1) ‘the frequency and nature of the contact,’ (2) ‘the nature and extent of the control exercised by the respondent over the child’s environment,’ (3) ‘the duration of the respondent’s contact with the child,’ and (4) ‘the respondent’s relationship to the child’s parent(s)'” … . These factors “are not meant to be exhaustive, but merely illustrate some of the salient considerations in making an appropriate determination” … . The weight given to each factor depends on the facts and circumstances of the case … . Matter of B.F. v Administration for Children’s Servs., 2025 NY Slip Op 03393, First Dept 6-5-25

Practice Point: Consult this decision for an exhaustive discussion of the criteria for a “person legally responsible for the child” in the context of a neglect or abuse proceeding. Here mother’s boyfriend, who lived with mother and daughter for five months prior to the abuse of the daughter, was deemed to meet the criteria.

 

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