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THE CUSTODY ARRANGEMENTS SET FORTH IN A SETTLEMENT AGREEMENT SHOULD NOT HAVE BEEN MODIFIED IN THE ABSENCE OF A HEARING AND FAMILY COURT SHOULD NOT HAVE RELIED ON INADMISSIBLE EVIDENCE UNTESTED BY THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the custody arrangements set forth in the settlement agreement should not have been modified in the absence of a hearing and the modification should not have been based upon inadmissible evidence not tested by either party:

… [T]he Supreme Court should not have granted, without a hearing, that branch of the defendant’s motion which was to modify the terms of the parties’ stipulation of settlement. Custody determinations should generally be made only after a full and plenary hearing … . While the general right to a hearing in custody and visitation 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 child’s best interests, such that a hearing on the defendant’s petition was necessary … .

In addition, decisions regarding child custody and parental access should be based on admissible evidence … . Here, in making its determination, the Supreme Court improperly relied solely on statements and conclusions of witnesses whose opinions and credibility were untested by either party … . Palazzola v Palazzola, 2020 NY Slip Op 06801, Second Dept 11-18-20

 

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THE MATERNAL GRANDMOTHER HAD STANDING TO PETITION FOR VISITATION AFTER MOTHER’S DEATH; FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION WITHOUT HOLDING A “BEST INTERESTS” HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the maternal grandparent had standing to petition for visitation after mother died. Because the grandparent had standing, Family Court should have held a “best interests” hearing rather than precluding the presentation of evidence and granting father’s petition to deny the petition:

… [I]t is undisputed that the maternal grandparents have standing based upon the death of the child’s mother. Since the maternal grandparents have standing, the Family Court should have proceeded to conduct a best interests determination based upon admissible evidence … . Instead, the maternal grandparents were not permitted to present any evidence, no testimony was taken from any of the parties, and no in camera interview with the child was conducted. We disagree with the court’s determination to grant the father’s application, in effect, to deny the petition and dismiss the proceeding without first conducting a hearing … . Matter of Jafer v Marasa, 2020 NY Slip Op 06789, Second Dept 11-18-20

 

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PLAINTIFF FAILED TO DEMONSTRATE THE SEPARATION AGREEMENT WAS UNCONSCIONABLE AS A MATTER OF LAW; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff failed to demonstrate the separation agreement was unconscionable as a matter of law and plaintiff’s motion for summary judgment, therefore, should not have been granted. The court outlined the analytical criteria for unconscionability in this context:

“A separation agreement or stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or … . However, because of the fiduciary relationship existing between spouses, a marital agreement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or where it is shown to be manifestly unjust because of the other spouse’s overreaching … . “In general, an unconscionable contract has been defined as one which is so grossly unreasonable as to be unenforc[ea]ble because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party” … . “This definition reveals two major elements which have been labeled by commentators, procedural and substantive unconscionability. The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice; the substantive element looks to the content of the contract, per se” … . A reviewing court examining a challenge to a separation agreement “will view the agreement in its entirety and under the totality of the circumstances” … . Eichholz v Panzer-Eichholz, 2020 NY Slip Op 06500, Second Dept 11-12-20

 

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FAMILY COURT SHOULD NOT HAVE RELIED SOLELY ON THE IN CAMERA INTERVIEW WITH THE EIGHT-YEAR-OLD CHILD IN THIS MODIFICATION OF CUSTODY CASE, MATTER REMITTED (FIRST DEPT). ​

The First Department, reversing Family Court and remanding the case, determined the evidence did not support a finding that there had been a change in circumstance sufficient to warrant awarding sole custody to father. The court noted that Family Court should not have relied solely on the in camera interview with the eight-year-old child:

The court based its finding solely on an in camera interview with the child, then eight years old, and the hearsay testimony of the father. The transcript of the in camera interview shows that the child made inconsistent statements about where he spent the majority of his time. However, even if he had made a definitive declaration, the Court of Appeals has admonished that courts should “not use any information, which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing,” because “there are grave risks involved in these private interviews. A child whose home is or has been torn apart is subjected to emotional stresses that may produce completely distorted images of its parents and its situation. Also, its feelings may be transient indeed, and the reasons for its preferences may indicate that no weight should be given the child’s choice. Without a full background on the family and the child, these interviews can lead the most conscientious Judge astray” … .

In fact, this admonition is well taken in this case, where the record provides a substantial basis for concluding that either or both parents spoke to the child about the proceeding before his interview with the court. Matter of Edwin E.R. v Monique A.-O., 2020 NY Slip Op 06347, First Dept 11-5-20

 

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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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