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FATHER SHOULD NOT HAVE BEEN SENTENCED TO JAIL FOR NONPAYMENT OF CHILD SUPPORT BECAUSE HE HAD PAID THE ARREARS BEFORE THE ORDER OF COMMITMENT WAS ISSUED (THIRD DEPT).

The Third Department, reversing Family Court, determined it was an abuse of discretion to sentence father to jail for failure to pay child support after father paid the arrears:

The father contends that Family Court abused its discretion by imposing a 90-day jail sentence for the father’s willful violation of the prior support order. We agree. Where a willful violation has been found, Family Court may “commit the respondent to jail for a term not to exceed six months” … .  “Such a sentence is in the nature of a civil contempt, which may only continue until such time as the offender, if it is within his or her power, complies with the support order” … . Here, the father presented payment at the hearing for the full amount of arrears owed and, therefore, Family Court abused its discretion when it issued the order of commitment … . Matter of Rondeau v Jerome, 2020 NY Slip Op 07960, Third Dept 12-24-20

 

ALTHOUGH THE PARENTS HAD BEEN FOUND TO HAVE ABUSED THE CHILDREN, THEY HAVE DEMONSTRATED THEY ARE LOVING AND CARING PARENTS; IN LIGHT OF THE CHILDREN’S EMOTIONAL PROBLEMS ASSOCIATED WITH FOSTER CARE, THE MOTION FOR A TRIAL DISCHARGE TO THE PARENTS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Family Court, determined the motion for a trial discharge of the children to the parents, who had been found to have abused the children, should have been granted:

Family Court’s denial of respondents’ motions pursuant to Family Ct Act § 1061 for a trial discharge of the children Ashlynn and Yeovanny to their care, a position vigorously supported by the foster care agency and the attorney for the children, does not have a sound and substantial basis in the record … . At the time of the motions, these children had recently been placed in their fourth foster home, and the agency was already investigating a fifth placement. Meanwhile, respondents had complied with all services, including full mental health evaluations ordered by the court at disposition, regularly attended unsupervised visitation, and had received uniformly positive reports from those who observed them interact with the children that they were loving and caring parents whose parenting skills were continually improving.

Under these circumstances, although respondents continued to maintain that Ian and Yeovanny’s injuries were accidental, “their acceptance of ultimate responsibility for [the children’s] injuries [was] demonstrated by their conduct” … . In view of the parents’ demonstrated ability to care for the children, ACS [Administration for Children’s Services] failed to show that it would be in Ashlynn and Yeovanny’s best interest for continued foster placement … especially when weighed against the emotional harm on children when they are removed from the home … . Such emotional harm was amply documented here and disturbingly downplayed by both petitioner and the court. The record shows that Ashlynn suffered from severe anxiety, nightmares, and other mental health issues that her therapist and agency caseworker attributed to being separated from respondents and shuttled through a succession of foster care placements. At the hearing on the motions, the agency caseworker submitted evidence that Ashlynn had to be taken to a hospital emergency room for night terrors shortly after she began living in her fourth foster home. Based on the foregoing, respondents showed “good cause” under Family Ct Act § 1061 for a trial discharge. Matter of Ashlynn R. (Maria R.-Yeovany R.), 2020 NY Slip Op 07726, First Dept 12-22-20

 

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PLAINTIFF, WHO WAS BORN TWO YEARS BEFORE HIS MOTHER AND FATHER WERE MARRIED, WAS A DISTRIBUTEE OF HIS FATHER’S ESTATE; IT HAS YET TO BE DETERMINED WHETHER DEFENDANT YOUSEF FRAUDULENTLY REPRESENTED HE WAS THE SOLE HEIR WHEN HE TRANSFERRED REAL PROPERTY TO DEFENDANT BASMANOV (FIRST DEPT).

The First Department determined plaintiff demonstrated he was a distributee of his father’s estate. Plaintiff was born two years before his parents married and both his father’s and mother’s names were on plaintiff’s birth certificate. The court noted that it has yet to be established whether defendant Yousef fraudulently represented himself as the sole heir of the estate when he transferred real property to  defendant Basmanov:

Pursuant to Domestic Relations Law § 24, if a mother and father enter into a civil or religious marriage after the birth of their child, the child is legitimated for all purposes of New York law, even if the marriage is void or voidable (§ 24[1]). Therefore, such child automatically becomes a distributee of both birth parents, without any need to satisfy one of the paternity tests set forth in Section 4-1.2(a)(2) of the EPTL … .

Plaintiff was born in 1973, nearly two years before his parents subsequently married. At some point, the decedent-father’s name was placed on the plaintiff’s birth certificate, which, pursuant to Public Health Law § 4135(2) in effect at the time, required “the consent in writing of both the mother and putative father, duly verified, and filed with the record of the birth.” Pursuant to Public Health Law § 4103(2), “a certification of birth is prima facie evidence of the facts therein.” …

Defendant Basmanov’s argument that plaintiff failed to establish fraud necessary to warrant voiding the deeds by which defendant Yosef purported to transfer the decedent’s real property to himself, and then to her, is unavailing. Absent proof of fraud, a deed that purports to transfer more than the party owns is valid to the extent of transferring that party’s interest … ; however, it has yet to be established whether Yosef committed a fraudulent transfer by representing himself as the sole heir of the decedent’s estate in order to effectuate the transfer. Tiwary v Tiwary, 2020 NY Slip Op 07479, First Dept 12-10-20

 

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MOTHER HAD FLED TO ARGENTINA WITH THE CHILD WHILE CUSTODY PROCEEDINGS WERE PENDING; FAMILY COURT SHOULD NOT HAVE DENIED THE MATERNAL GRANDMOTHER’S PETITION SEEKING VISITATION ON THE GROUND SHE DID NOT HAVE STANDING; MATTER REMITTED FOR A BEST INTERESTS HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the court erred in finding the maternal grandmother did not have standing to seek visitation and remitted the matter for a best interests hearing. Mother had fled to Argentina with the child when custody proceedings were pending:

“When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” … . The court must first determine if the grandparent has standing, based on death or equitable circumstances, and if it determines that the grandparent has established standing, it must then determine whether visitation is in the best interests of the child (see Domestic Relations Law § 72[1] …).

“Standing [based upon equitable circumstances] should be conferred by the court, in its discretion, only after it has examined all the relevant facts” … . “[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship” … . “It is not sufficient that the grandparents allege love and affection for their grandchild” … . “They must establish a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention” … .

Here, the Family Court’s determination that the grandmother lacked standing to seek visitation was not supported by a sound and substantial basis in the record … . The evidence demonstrated that the grandmother developed a relationship with the child early on in his life and thereafter made repeated efforts to continue that relationship … . Matter of Noguera v Busto, 2020 NY Slip Op 07385, Second Dept 12-9-20

 

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THE WIFE’S COUNTERCLAIM FOR ADULTERY IN THIS DIVORCE ACTION, WHICH, IF PROVEN, WOULD HAVE HAD SUBSTANTIAL FINANCIAL CONSEQUENCES FOR THE HUSBAND, SHOULD HAVE BEEN DISMISSED; THE HUSBAND AND THE WOMAN WHO WAS THE SUBJECT OF THE WIFE’S ALLEGATIONS SUBMITTED AFFIDAVITS DENYING ANY SEXUAL RELATIONSHIP; THE WIFE’S AFFIDAVIT WAS BASED ENTIRELY ON PROXIMITY–THE WOMAN WAS THE FAMILY’S BABYSITTER–AND WAS OTHERWISE UNSUPPORTED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, determined the husband’s motion for summary judgment dismissing the wife’s adultery counterclaim should have been granted in this divorce action. Whether the husband committed adultery was an important issue because of the significant financial consequences agreed to in the post-nuptial agreement, including the award to the wife of 80% of the husband’s future gross income and 80% of all marital assets. The wife alleged the husband committed adultery with the family’s babysitter, R.I. The husband and R.I. submitted affidavits denying any sexual relationship:

… [T]he wife’s focus on the husband’s “opportunity” to commit adultery amounts to the husband’s mere proximity to R.L. at various times and places. Clearly, R.L. was the family babysitter and, in that capacity, could be expected to be in the husband’s presence on many occasions, including occasional overnight stays. The wife offers no facts or evidence — whether objective, inferential, or otherwise — of any adulterous conduct between the husband and R.L. beyond their mere physical proximity to one another. The wife’s affidavit provides no dates, describes no suspicious circumstance with any detail or particularity, identifies no particular relevant social event, and identifies no witness who observed conduct or heard comments between the husband and R.L. that might inferentially support a claim of adultery against the husband. There is no investigator, no photograph, and no suspicious documents, texts, emails, or social media posts. Put another way, the wife’s opposition to summary judgment amounts to mere unilateral speculation, conjecture, guess, and surmise stemming from the husband’s and R.L.’s mere proximity to one another, without anything more. The wife’s conclusory affidavit cannot substitute for admissible evidence even recognizing, as we do, that the adultery counterclaim is premised upon circumstantial evidence and the court’s role in determining summary judgment is that of issue-finding … . Agulnick v Agulnick, 2020 NY Slip Op 07335, Second Dept 12-9-20

 

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THE CHILD’S HEARSAY STATEMENTS CLAIMING HE WAS PUNCHED IN THE STOMACH WERE NOT CORROBORATED AND THEREFORE COULD NOT SUPPORT A FINDING OF NEGLECT BY THE INFLICTION OF EXCESSIVE CORPORAL PUNISHMENT (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court, determined the child’s hearsay statements claiming Manuel R. punched him in the stomach were not corroborated. Therefore the finding that Manuel R. neglected the child by inflicting excessive corporal punishment:

… [G]enerally a petitioner must present nonhearsay, relevant evidence to reliably corroborate the out-of-court disclosures … . Moreover, “repetition of an accusation by a child does not corroborate the child’s prior account of it” … .

Here, where there was no physical evidence of neglect, the child’s out-of-court statements that Manuel R. disciplined him by punching him in the stomach were not sufficiently corroborated by nonhearsay, relevant evidence tending to support the reliability of the statements. While the child did say “ow, ow it hurt” when a case worker touched his stomach, this occurred after the caseworker told the child that she did not see bruises on his stomach. Moreover, although the child made a fist to demonstrate to the caseworker what Manuel R. allegedly did when he punched him, he did this at the same time he made his verbal accusation that Manuel R. punched him. Under these circumstances, the child’s reaction to the caseworker’s touch and his gesture in making a fist were simply a repetition of his verbal accusation, which did not serve to corroborate his out-of-court statements … . As there was no other evidence tending to corroborate the child’s out-of-court statement, the Family Court’s finding that Manuel R. inflicted excessive corporal punishment on the child was not supported by a preponderance of the evidence. Matter of Treyvone A. (Manuel R.), 2020 NY Slip Op 07049, Second Dept 11-25-20

 

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FATHER HAD BROUGHT HIS CHILD SUPPORT PAYMENTS CURRENT; FAMILY COURT DID NOT HAVE THE AUTHORITY TO IMPOSE A SUSPENDED JAIL SENTENCE CONDITIONED ON PAYMENT OF FUTURE CHILD SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined that once father had paid the child support arrears the court did not have the authority to impose a suspended jail sentence:

… [T]he father … is aggrieved by … the order suspending [the jail] sentence upon the condition that he comply with the support order for three years. A jail sentence imposed for a party’s civil contempt in failing to comply with an order — such as the father’s willful failure to pay support as ordered — is not punitive and only serves “the remedial purpose of compelling compliance” with the order … . There was “no remedial purpose to be served by continued confinement” or the threat thereof once the father had brought his support payments current … and, indeed, the order of commitment should not have been issued because the father had already “complie[d] completely with the underlying support order” … . Family Court accordingly erred in suspending the sentence and was obliged to discharge it without condition. Matter of Dupuis v Costello, 2020 NY Slip Op 06992, Third Dept 11-25-20

 

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AS NO PETITION WAS BEFORE THE COURT, FAMILY COURT LACKED SUBJECT MATTER JURISDICTION AND THEREFORE DID NOT HAVE THE AUTHORITY TO ORDER A FORENSIC EVALUATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court did not have subject matter jurisdiction when it issued a forensic evaluation because no petition was before the court:

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two children (born in 2004 and 2006). In July 2018, the parties stipulated in open court to a settlement of the father’s modification of custody petition and violation petitions then pending in Family Court. The parties stipulated to, among other things, suspension of the collection of accrued child support arrears and, as relevant here, agreed to engage in family counseling and to a protocol for the selection of a therapist. The transcript of the parties’ stipulation of settlement was incorporated by reference into a consent order entered in March 2019. Thereafter, the parties failed to agree on the selection of a therapist, prompting the father to request that the court appoint as a therapist a licensed psychiatrist versed in parental alienation. In June 2019, the court appointed a psychologist, but the psychologist declined to provide counseling services. By letter, the father then, among other things, requested that the court order a forensic evaluation by a different licensed psychologist. After converting the father’s request to an application for a court-ordered forensic evaluation, the court ordered a forensic evaluation over the mother’s objection. The mother appealed from that order, and we granted the mother’s subsequent motion for a stay of Family Court’s order pending resolution of this appeal … . * * *

Less than one year after the stipulation was incorporated by reference into a consent order, Family Court … ordered a forensic evaluation, citing the “unusual situation” whereby the parties stipulated to — and the court ordered — counseling and all efforts failed. This was error, as no petition had been filed by the father since the March 2019 consent order was entered, and no proceedings were therefore pending to provide Family Court with jurisdiction to render the appealed-from order directing a forensic evaluation (see Family Ct Act §§ 154-a, 251 [a] … ). Indeed, as is the case here, an expectation of finality derives from a stipulation of settlement entered into by those with legal capacity to negotiate … . Accordingly, we find that Family Court lacked subject matter jurisdiction to order a forensic evaluation. Matter of James R. v Jennifer S., 2020 NY Slip Op 06997, Third Dept 11-25-20

 

DOMESTIC RELATIONS LAW 111 GIVES A COURT THE DISCRETION TO DISPENSE WITH AN ADULT ADOPTEE’S CONSENT TO ADOPTION; HERE PETITIONERS WERE PROPERLY ALLOWED TO ADOPT MARION T., A 66-YEAR-OLD NON-VERBAL WOMAN WITH A SIGNIFICANT DEVELOPMENTAL DISABILITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and an extensive dissent, determined that the lower court rulings that Domestic Relations Law 111 (1)(a) gives a court the discretion to dispense with the adoptee’s consent to an adoption. Here the petitioners sought to adopt Marion T, a non-verbal 66-year-old women with a significant developmental disability.

[The} issue turns on the proper interpretation of Domestic Relations Law (DRL) § 111(1)(a), which generally requires the consent of an “adoptive child” who is over 14 years old but gives the court discretion to dispense with that consent. We agree with the Appellate Division that, in appropriate circumstances, the statute permits a court to approve an adoption even absent the consent of an adult adoptee. Because that discretion was not abused here and there is record support for the affirmed best interests finding, we affirm. Matter of Marian T. (Lauren R.), 2020 NY Slip Op 06932, CtApp 11-23-20

 

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FAMILY COURT DID NOT HAVE THE AUTHORITY TO CONDITION VISITATION UPON FATHER’S PARTICIPATION IN MENTAL HEALTH COUNSELING; THEREFORE FATHER’S PETITION TO MODIFY CUSTODY AND VISITATION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT ORDER HAD BEEN VIOLATED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the motion to dismiss father’s petition to modify custody and visitation shoud not have been granted. The motion to dismiss argued father had not complied with the court’s order conditioning visitation on participation in mental health counseling. The court did not have the authority to issue that order:

… [A]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” … . Family Court therefore “lacked the authority to condition any future application for modification of [the father’s] visitation on [his] participation in mental health counseling” … . Matter of Lane v Rawleigh, 2020 NY Slip Op 06926, Fourth Dept 11-20-20

 

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