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UNDER THE CIRCUMSTANCES, A LINCOLN HEARING WILL PROVIDE INFORMATION PERTINENT TO FATHER’S PETITION FOR A MODIFICATION OF THE CUSTODY ORDER, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, remitted the matter to determine whether a change in circumstance warranted a modification of the child custody order. The order did not address where the child should attend school after eighth grade and father sought an modified order allowing the child to attend a public high school and expanding his parenting time. Family Court refused to use information learned in a Lincoln hearing in connection with the father’s burden to show a change in circumstances. The Third Department remitted the matter noting that a Lincoln hearing, under the circumstances, would provide the court with pertinent information:

… [T]he father established a change in circumstances requiring a thorough best interests analysis. To that end, it is undisputed that there is no current order governing where the child is to attend school. Also, the father’s uncontested testimony established that the father and the mother cannot reach an agreement as to where the child should attend school, thus requiring judicial intervention … . …

Family Court erred in denying the father’s motion requesting a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. “Although a child’s wishes can support the finding of a change in circumstances, they are but one factor and are not determinative” … . Although “[t]he decision whether to conduct such a hearing is discretionary, . . . it is ‘often the preferable course’ to conduct one” … . Here, given that the child was 14 years old at the time of the fact-finding hearing and had expressed a preference to attend public school, that this preference was one of the changed circumstances alleged by the father and that the attorney for the child joined in the father’s request for the Lincoln hearing, a Lincoln hearing “would have provided the court with significant pieces of information it needed to make the soundest possible decision” … . Matter of Edwin Z. v Courtney AA., 2020 NY Slip Op 05987, Third Dept 10-22-20

 

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FATHER WAS NOT ENTITLED TO SUMMARY JUDGMENT TERMINATING HIS PARENTAL RIGHTS ON THE GROUND HIS 18-YEAR-OLD CHILD HAD ABANDONED HIM (THIRD DEPT).

The Third Department, reversing Family Court, determined father was not entitled to summary judgment on his petition to terminate his parental rights on the ground that the 18-year-old had abandoned him:

… [T]he father did not establish his entitlement, as a matter of law, to termination of his child support obligation on the ground of abandonment. Although the father’s submissions detailed his efforts to establish a relationship with the child and the child’s repeated rebuffs of those efforts, the father’s proof failed to demonstrate as a matter of law that the child’s refusal to have contact with him was totally unjustified, particularly given the father’s prolonged absence from the child’s life and the child’s developmental disability and other diagnoses. Such factual issues warranted a full evidentiary hearing and should not have been summarily resolved by Family Court … . Although Family Court had knowledge of prior proceedings between the parties, the justification issue had never been squarely before Family Court and required the presentation of evidence, including potential expert testimony, concerning the impact of the child’s developmental disability and other diagnoses on the child’s refusal to have contact with the father. Matter of Thomas GG. v Bonnie Jean HH., 2020 NY Slip Op 05988, Third Dept 10-22-20

 

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FATHER’S CHILD SUPPORT OBLIGATIONS CONTROLLED BY THE JUDGMENT OF DIVORCE, NOT THE CONFLICTING PROVISIONS OF THE SEPARATION AGREEMENT (THIRD DEPT).

The Third Department, reversing Family Court, determined the provisions in the judgment of divorce, not the separation agreement, controlled father’s child support obligations:

Although the parties entered into a separation agreement directing what the husband was to pay for child support, the subsequent judgment of divorce specifically provided that “the child support obligations of the parties hereto shall be as directed by the [c]orrective [o]rder of [s]upport . . . entered on November 16, 2017.” A conflict therefore exists between the separation agreement and the subsequently entered judgment of divorce. In such circumstance, the judgment of divorce controls … .

Although Family Court was without jurisdiction to modify the terms of the separation agreement (see Kleila v Kleila, 50 NY2d 277, 282 [1980]), the fact that the corrective order of support was denominated as an order by Family Court or that it emanated from a Family Court proceeding does not mean the terms therein are invalid. The parties voluntarily consented to the terms in the corrective order of support. Additionally, there is nothing in the record indicating that the parties disputed any of those terms. Under these circumstances, and because the judgment of divorce specifically stated that the parties’ child support obligations were to be determined by the corrective order of support, we are not of the view that Family Court modified the separation agreement. Sherman v Sherman, 2020 NY Slip Op 05993, Third Dept 10-22-20

 

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FAMILY COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION TO DECLARE THE PARENTAGE OF A CHILD BORN TO A MARRIED SAME-SEX COUPLE BECAUSE THE CHILD WAS NOT BORN “OUT-OF-WEDLOCK;” RECENTLY ENACTED LEGISLATION WILL SOON ALLOW SUCH A PETITION IN FAMILY COURT AND THE PARTIES MAY NOW SEEK A DECLARATORY JUDGMENT ON THE ISSUE IN SUPREME COURT, WHICH HAS SUBJECT MATTER JURISDICTION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, determined Family Court did not have subject matter jurisdiction over the petition to declare petitioners, a same-sex married couple, as the legal parents of the child conceived with donated sperm. Although the Family Court Act allows the court to determine “paternity” for a female parent, the court’s jurisdiction in that regard is limited to children born out-of-wedlock. The Third Department noted that legislation will soon allow a Family Court petition for a judgment of parentage and Supreme Court has jurisdiction to hear an application for a declaratory judgment on the issue:

… [T]he Legislature has only empowered Family Court to hear “proceedings to determine [parentage] and for the support of children born out-of-wedlock” … and further defined a child in Family Ct Act article 5 as one “born out of wedlock” … . Petitioners were married at all relevant times, and their child was not born out of wedlock. …

We note the recent enactment of Family Ct Act article 5-C, which will soon allow a petition for a judgment of parentage … . Moreover, if petitioners articulate how “an adjudication of the merits will result in immediate and practical consequences to” them … , they are presently free “to bring a declaratory judgment action in Supreme Court to determine the status of the child and the rights of all interested parties” … . Matter of Alison RR, 2020 NY Slip Op 06002, Third Dept 10-22-20

 

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DENIAL OF MOTHER’S REQUEST TO PRESENT EVIDENCE OF HER FINANCIAL SITUATION WAS AN ABUSE OF DISCRETION; MOTHER WAS FACING INCARCERATION FOR VIOLATING HER CHILD SUPPORT OBLIGATIONS; NEW CONFIRMATION OF WILLFULNESS HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court, determined it was an abuse of discretion to deny mother’s request to present evidence of her financial situation and her request for an adjournment to obtain additional proof of her financial situation in this child support proceeding. Mother was facing incarceration for violation of her support obligations:

… [A]lthough the mother appeared in person before the Family Court at the confirmation of willfulness hearing, and proffered documentary and testimonial evidence in support of her assertion that she was indigent and unable to pay child support, the court did not permit the mother to adduce any evidence regarding her financial situation, and denied her request for an adjournment to obtain additional evidence of her inability to work. This was an abuse of discretion … . Since the mother was facing a potential period of incarceration of up to six months in the event that the court determined that her failure to pay child support was willful (see Family Ct Act § 454[3][a]), the mother’s testimony was “essential to the court’s determination as to whether she had had the ability to pay or willfully disobeyed the prior support order” … . If the mother had been given an opportunity to substantiate her claimed inability to pay, and she had done so, the court would have been constrained to deny the father’s petition … . Matter of Palombelli v Guglielmo, 2020 NY Slip Op 05903, Second Dept 10-21-20

 

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DERIVATIVE NEGLECT FINDING STEMMING FROM A MOTION FOR SUMMARY JUDGMENT REVERSED; MOTHER HAD SUCCESSFULLY PARTICIPATED IN MENTAL HEALTH TREATMENT SINCE THE NEGLECT FINDINGS WITH RESPECT TO THE OLDER CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined a derivative neglect finding stemming from a motion for summary judgment should not have been granted. Mother had participated in mental health treatment and had made progress since the prior neglect findings with respect to her older children:

Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted in such a proceeding when there is no triable issue of fact outstanding (see Family Ct Act § 165[a] …). In support of its motion, ACS [Administration for Children’s Services] submitted the court’s prior orders determining that the mother neglected the two older children … . While there were findings of neglect as to the subject child’s two siblings, “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings. The focus of the inquiry . . . is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood” … . …

… ACS failed to establish as a matter of law that, under the circumstances, the neglect of the subject child’s siblings merits a finding of derivative neglect as to the subject child … . The medical records submitted by ACS demonstrated that the mother had failed to comply with her mental health treatment in late 2016, which noncompliance was a basis of the prior findings of neglect. However, the records submitted also demonstrated that the mother recommenced treatment in early 2017, immediately after the finding of neglect as to the second child, Akira, and that the mother was thereafter compliant and made positive progress in her mental health treatment for the following year. Accordingly, it cannot be said that ACS established, prima facie, that the mother derivatively neglected the subject child through her failure to resolve the same issues that were the basis for the prior findings of neglect as to the two older children … . Matter of Azayla K. L. (Aleisha L.), 2020 NY Slip Op 05902, Second Dept 10-21-20

 

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EVIDENCE DID NOT SUPPORT A NEGLECT FINDING BASED UPON THE CONDITION OF THE HOME (FIRST DEPT),

The First Department, in affirming neglect findings based upon leaving the children unattended in a car and in the bathtub, determined that the evidence did not support the neglect finding based upon the condition of the home:

The only evidence that respondents failed to maintain the home in a sanitary condition was the caseworker’s testimony about her observations during a single visit, which is insufficient to support the finding of neglect on that basis … . Matter of Dream F. (Phillystina R.), 2020 NY Slip Op 05832, First Dept 10-15-20

 

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THE HEARSAY EXCEPTION IN ARTICLE 10 OF THE FAMILY COURT ACT DOES NOT APPLY IN ARTICLE 8 FAMILY OFFENSE PROCEEDINGS; ORDER OF PROTECTION REVERSED (SECOND DEPT).

The Second Department, reversing the Family Court’s order of protection imposed after a finding appellant had committed a family offense, determined the finding was based upon inadmissible hearsay. The hearsay exception in Article 10 of the Family Court Act does not apply to family offense (Article 8) proceedings:

In a family offense proceeding, “[o]nly competent, material and relevant evidence may be admitted in a fact-finding hearing” (Family Ct Act § 834). In child protective proceedings brought pursuant to articles 10 and 10-A of the Family Court Act, there is a statutory hearsay exception for “previous statements made by the child relating to any allegations of abuse or neglect” (Family Ct Act § 1046[a][vi]). “[A]lthough the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family [Court] Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are inextricably interwoven,” section 1046(a)(vi) is inapplicable in a family offense proceeding pursuant to Family Court Act article 8 … . …

… Dhanmatie Godfrey filed a family offense petition against Zahamin Bahadeur, in which she alleged that Bahadeur committed a family offense against one of her children. The only evidence presented by Godfrey in support of the allegations in the family offense petition were the child’s inadmissible hearsay statements, as testified to by Godfrey. The Family Court erred in admitting the child’s hearsay statements into evidence because the hearsay exception set forth in Family Court Act § 1046(a)(vi) does not apply in family offense proceedings pursuant to Family Court Act article 8 … . Matter of Godfrey v Bahadeur, 2020 NY Slip Op 05750, Second Dept 10-14-20

 

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SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE FORMULA FOR DETERMINING TEMPORARY SPOUSAL MAINTENANCE IN THIS DIVORCE PROCEEDING WITHOUT MAKING A FINDING THAT USING THE FORMULA WOULD RESULT IN AN UNFAIR AMOUNT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this divorce proceeding, determined Supreme Court should not have deviated form the temporary spousal maintenance formula without making a finding the formula resulted in an unjust or inappropriate amount:

“The formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a payee spouse’s basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses” … . Here, the Supreme Court’s directive that the defendant pay pendente lite maintenance in the sum of $6,940 per month plus real estate taxes, homeowner’s insurance, and homeowner’s association fees on the marital residence resulted in a double shelter allowance, since the formula used to calculate the presumptive temporary maintenance award is intended to cover all of the plaintiff’s basic living expenses, including housing costs … . It was error to deviate in this manner from the guideline amount of temporary maintenance without making a finding that such amount was unjust or inappropriate based upon the factors enumerated in Domestic Relations Law § 236(B)(5-a)(h) … . Capozzoli v Capozzoli, 2020 NY Slip Op 05715, Second Dept 10-14-20

 

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THE FACT THAT PATERNITY HAD NOT BEEN ESTABLISHED DID NOT PRECLUDE MOTHER’S GUARDIANSHIP PETITION OR FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined the petition to have the child’s mother appointed guardian and to make findings necessary for the child to petition for special immigrant juvenile status (SIJS) should have been granted:

The Family Court should not have dismissed the guardianship petition on the ground that paternity had not been established. A natural parent may be appointed guardian of his or her own child (see Family Ct Act § 661 [a] …), and the mere fact that paternity has not been established for the putative father does not preclude the guardianship petition or the issuance of an order making specific findings enabling the subject child to petition for SIJS … . …

Here, the subject child is under the age of 21 and unmarried, and since we have found that the mother should have been appointed as the subject child’s guardian, a finding also should have been made that the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) …. Further, based upon our independent factual review, the record supports a finding that reunification of the subject child with his father is not a viable option due to parental abandonment  …. Lastly, the record supports a finding that it would not be in the best interests of the subject child to return to Guatemala … . Matter of Mardin A. M.-I. (Reyna E. M.-I.–Mardin H.), 2020 NY Slip Op 05754, Second Dept 10-14-20

 

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