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THE MEANING OF ‘GROSS EARNED INCOME’ IN THE STIPULATION OF SETTLEMENT AFFECTED THE CALCULATION OF CHILD SUPPORT; THE TERM WAS AMBIGUOUS REQUIRING A HEARING TO DETERMINE THE INTENT OF THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the settlement agreement was ambiguous. The meaning of the term “gross earned income” in the agreement affected the child support calculation. The court should have held a hearing to ascertain the intent of the parties. Instead, the court deferred to the definition of “income” in the Child Support Standards Act (CSSA):

“A stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation” … . “Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used” … . “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” … . “Whether a writing is ambiguous is a matter of law for the court, and the proper inquiry is whether the agreement on its face is reasonably susceptible of more than one interpretation” … . In making this determination, the court also should examine the entire contract and consider the relation of the parties and the circumstances under which the contract was executed … . Where a contract is ambiguous, “the court may consider the construction placed on the contract by the parties to help ascertain the meaning” … . “The role of the court is to determine the intent and purpose of the stipulation based on the examination of the record as a whole” … .

Here, the term “gross earned income,” in the context of the parties’ stipulation, is ambiguous … . However, instead of deferring to the CSSA’s definition of “income,” the Support Magistrate should have held a hearing to determine the parties’ intent in including the word “earned” … . Matter of Abramson v Hasson, 2020 NY Slip Op 03418, Second Dept 6-17-20

 

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NEW YORK DETERMINED TO BE AN INCONVENIENT FORUM IN THIS CUSTODY MATTER (FOURTH DEPT).

The Fourth Department noted the record was sufficient to allow the appellate court to determine whether New York was an inconvenient forum in this custody matter. Mother had moved to California with the child after father abused mother in New York. Father filed the custody petitions in New York. After considering the statutory factors the Fourth Department found New York to be an inconvenient forum. With respect to one of the factors–the location of the relevant evidence–the court wrote:

The location of relevant evidence and, to some extent, the ability of the court in each state to decide matters expeditiously also favor California as the appropriate forum. The majority of the evidence pertaining to the best interests analysis in this custody matter is located in California. Although evidence relating to certain domestic violence incidents is, as noted above, more readily available in New York, most other relevant information regarding the child’s best interests, such as her school performance, response to therapy, the indigenous tribe she belongs to, and her relationship with her extended family, is in California … . It does not appear that the child has any connection with New York other than the father and a paternal grandmother. Further, the Attorney for the Child in New York was having trouble providing effective representation to the child inasmuch as it was difficult to communicate with the child by telephone … . Matter of Coia v Saavedra, 2020 NY Slip Op 03325, Fourth Dept 6-12-20

 

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SUPREME COURT SHOULD NOT HAVE GRANTED SOLE CUSTODY TO FATHER, SHOULD NOT HAVE SANCTIONED MOTHER FOR PERJURY ALLEGEDLY COMMITTED IN A DIFFERENT COURT PROCEEDING, AND SHOULD NOT HAVE ORDERED RELIEF NOT REQUESTED BY A PARTY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined: (1) father should not have been awarded sole custody of the children for 60 days because no change of circumstances was alleged or demonstrated; (2) the court should not have, sua sponte, directed a child be deprived of cell phone and other electronic devices and be barred from outside-the-home activities; (3) the court should not have have directed mother to pay a fine to father for perjury; (4) the court did not have the authority to sanction mother for frivolous conduct (perjury); (5) the court should not have awarded attorney’s fees to father:

… [T]he court summarily punished the mother by sanctioning her after it determined that she committed perjury during her testimony before a Judicial Hearing Officer in Family Court with respect to the temporary order of protection and during her testimony at the hearing on the petition before Supreme Court. Assuming, arguendo, that perjury would support a finding of contempt, we conclude that the court could not properly find the mother in criminal contempt based on her testimony in Family Court, nor could the court summarily punish the mother for civil or criminal contempt based on that testimony, inasmuch as it occurred out of the court’s “immediate view and presence” … . Insofar as the order may be deemed to sanction the mother for civil or criminal contempt that occurred in the presence of Supreme Court, we conclude that, because “due process requires that . . . the contemnor be afforded an opportunity to be heard at a meaningful time and in a meaningful manner’ ” … , and the court failed to provide notice that it was considering finding the mother in contempt or an opportunity to be heard thereon, the court erred in imposing such sanction … . …

Assuming, arguendo, that sanctions for frivolous conduct may be based on a party’s perjury, we conclude that the regulation permitting the imposition of such sanctions specifically provides that it “shall not apply to . . . proceedings in the Family Court commenced under article . . . 8 of the Family Court Act” … . …

In awarding attorney’s fees to the father, the court did not state, and we cannot determine on this record, whether it did so based upon the custodial stipulation between the parties or pursuant to statute. Consequently, we are unable ” to determine whether the award was within the proper exercise of the court’s discretion’ ” … . Ritchie v Ritchie, 2020 NY Slip Op 03316, Fourth Dept 6-12-20

 

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FINDING THAT MOTHER DID NOT MEDICALLY NEGLECT HER CHILDREN LACKED A SOUND AND SUBSTANTIAL BASIS (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the finding that mother did not medically neglect her children lacked a sound and substantial basis:

A neglected child is defined, in relevant part, as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate . . . medical . . . care, though financially able to do so” … . “The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence . . . First, there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child . . . Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances” … .

A parent’s failure to provide medical care as required by [Family Court Act § 1012 (f) (i) (A)] may be interpreted to include psychiatric medical care where it is necessary to prevent the impairment of the child’s emotional condition’ ” … . Here, upon our review of the record, we conclude that DSS established a prima facie case of medical neglect by presenting evidence that the mother failed to follow mental health treatment recommendations upon the daughter’s discharges from psychiatric hospitalizations for suicidal and homicidal ideation and that the mother failed to rebut DSS’s prima facie case … .

We further agree with the AFC that the evidence of neglect with respect to the daughter ” demonstrates such an impaired level of . . . judgment as to create a substantial risk of harm for any child in [the mother’s] care,’ ” thus warranting a finding of derivative neglect with respect to the younger children … . Matter of Olivia W. (Courtney W.), 2020 NY Slip Op 03296, Fourth Dept 6-12-20

 

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THE EVIDENCE DID NOT SUPPORT THE EXISTENCE OF A FATHER-CHILD RELATIONSHIP WITH MOTHER’S HUSBAND OR PETITIONER’S ACQUIESCENCE IN THE DEVELOPMENT OF SUCH A RELATIONSHIP; THE BIOLOGICAL FATHER’S PETITION FOR A DECLARATION OF PATERNITY SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO THE DOCTRINE OF EQUITABLE ESTOPPEL (SECOND DEPT).

The Second Department, reversing Family Court, determined the doctrine of equitable estoppel should not have been invoked to dismiss the petition for a declaration petitioner is the father of a child born in 2016. Mother did not deny petitioner was the father but claimed the child had developed a father-child relationship with her husband, Joseph T. The Second Department held that the evidence did not demonstrate a father-child relationship with Joseph T and did not demonstrate petitioner acquiesced in the creation of a father-child relationship with Joseph T:

The doctrine of equitable estoppel may “preclude a man who claims to be a child’s biological father from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man” … . ” The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship'” … , and has been applied “[i]n situations where an individual has assumed the role of a father and where the petitioner putative father has neglected to assume such a role” … . …

We agree with the petitioner that the respondents failed to demonstrate the existence of an operative parent-child relationship between the child and Joseph T. The only evidence of such a relationship came from the child’s foster mother, with whom he has lived since he was one year old. The foster mother testified that the child called Joseph T. “daddy” during weekly supervised visits, and that they were affectionate with each other at the visits … . … Joseph T. never appeared in court on the petition and did not testify at the hearing. Further, we disagree with the Family Court that the petitioner acquiesced in the establishment of a relationship between the child and Joseph T. The petitioner testified at the hearing that, until the child was removed from the mother’s care, he did not know she married to Joseph T. Matter of Luis V. v Laisha P. T., 2020 NY Slip Op 03235, Second Dept 6-10-20

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FIRST DEPT).

The First Department, reversing Family Court, determined Family Court should have made findings enabling the child to petition for special immigrant juvenile status (SIJS):

The evidence establishes that the child was unmarried and under the age of 21 at the time of the special findings hearing and order (see 8 CFR 204.11[c]). The Family Court’s appointment of a guardian (petitioner) rendered the child dependent on a juvenile court … .

The evidence that the child had had no contact with his parents, and received no support from them, since at least September 2014 established that reunification with the parents was not viable due to neglect or abandonment ….  The parents’ consent to the appointment of a guardian and waiver of service also demonstrate an intent to relinquish their parental rights.

In determining whether reunification was viable, the Family Court should not have refused to consider evidence of circumstances that occurred after the child’s 18th, but before his 21st, birthday … .

The record demonstrates that it is not in the best interests of the child to return to Albania … . The evidence shows that the child suffered political persecution in Albania that his parents were unable to prevent … , that he had had no recent contact with his parents and was not sure if they would accept him if he returned … , and that he was doing well in petitioner’s care … . Matter of Lavdie H. v Saimira V., 2020 NY Slip Op 03177, First Dept 6-4-20

 

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RETURN OF THE CHILDREN TO MOTHER AFTER A TEMPORARY REMOVAL WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT).

The Second Department, reversing Family Court, determined the return of children to mother after a temporary removal was not supported by a sound and substantial basis:

“An application pursuant to Family Court Act § 1028 to return a child who has been temporarily removed shall’ be granted unless the Family Court finds that “the return presents an imminent risk to the child’s life or health”‘” … . The court’s determination will not be disturbed if it is supported by a sound and substantial basis in the record … . In making its determination, the court ” must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal'” … .The court ” must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests'” … . “Evidence that the children who are the subject of the proceeding were previously harmed while in the parent’s care is not required where it is shown that the parent demonstrated such an impaired level of parental judgment with respect to one child so as to create a substantial risk of harm to any child in that parent’s care” … . The child services agency bears the burden of establishing that the subject child would be at imminent risk and therefore should remain in its custody … . …

The evidence at the hearing demonstrated that, after one of the subject children reported to the mother that her older brother had been sexually abusing her since she was 10 years old, the mother did not address the sexual abuse and did not provide increased supervision for the subject children. Further, the petitioner demonstrated that the mother left one of the subject children in the older brother’s care, for at least a period of time, while she gave birth to the third subject child, in violation of an order dated March 23, 2018. Under the circumstances, we cannot agree that the return of two of the subject children to the mother’s custody, notwithstanding the conditions that were imposed, would not present an imminent risk to the children’s life or health … . Matter of Carter R. (Camesha B.), 2020 NY Slip Op 03118, Second Dept 6-3-20

 

FATHER’S CHILD SUPPORT OBLIGATION DID NOT CEASE UPON MOTHER’S DEATH; MATERNAL GRANDFATHER’S PETITION SEEKING TO BE MADE THE CHILD-SUPPORT PAYEE RETROACTIVE TO MOTHER’S DEATH PROPERLY GRANTED (SECOND DEPT).

The Second Department determined father’s child support obligations did not cease upon the death of mother. The maternal grandparents were awarded sole custody of the child. The maternal grandfather’s petition seeking to be made the payee of father’s child support was properly granted, retroactive to the date of mother’s death:

Since a child support obligation is owed to the child, not to the payee spouse, “the death of the payee spouse does not terminate the obligation” … . Here, the death of the mother did not terminate the father’s continuing obligation under the order of support dated December 4, 2014, to support the children. It would be contrary to the statutory scheme of the Family Court Act and the important public policies it embodies for the father to no longer be liable for unpaid child support payments accrued after the mother’s death where, as here, “he neither had custody of the child[ren] nor sought to otherwise modify his child support obligation during the relevant period” … . Matter of Sultan v Khan, 2020 NY Slip Op 02929, Second Dept 5-20-20

 

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FAMILY COURT SHOULD NOT HAVE SUMMARILY DISMISSED MOTHER’S PETITION FOR CUSTODY OF CHILDREN LIVING OUT-OF-STATE WITHOUT FIRST DETERMINING WHETHER IT HAD EXCLUSIVE, CONTINUING JURISDICTION OVER CUSTODY ISSUES (SECOND DEPT).

The Second Department determined Family Court should not have dismissed mother’s petition seeking sole custody of the children, who lived out-of-state, without first making a ruling on whether it had continuing jurisdiction over custody issues:

On November 22, 2016, the Family Court issued an order (hereinafter the custody order) awarding, inter alia, joint legal custody of the subject children to the mother and the children’s godmother, with primary physical custody and final decision-making authority to the godmother. …

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified in article 5-A of the Domestic Relations Law, a court in this State which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds, as is relevant here, that it should relinquish jurisdiction because the child does not have a “significant connection” with New York, and “substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76-a[1][a] …). …

… Family Court should not have summarily dismissed the mother’s petition on the ground that the children had been living with the godmother in Pennsylvania, without considering whether it had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a (1) … , and affording the mother an opportunity to present evidence as to that issue … . Matter of Hodge v Hodges-Nelson, 2020 NY Slip Op 02926, Second Dept 5-20-20

 

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ALTHOUGH MOTHER DID NOT APPEAR AT THE SCHEDULED CONFERENCE AND DID NOT HAVE A MERITORIOUS DEFENSE IN THIS NEGLECT PROCEEDING, SHE WAS NOT AWARE FINDINGS OF FACT WOULD BE MADE IN HER ABSENCE; DEFAULT ORDER VACATED ON DUE PROCESS GROUNDS (THIRD DEPT).

The Third Department, reversing Family Court, determined mother was deprived of her right to due process when findings of fact were made in her absence in this neglect proceeding. Although mother did not appear at a scheduled conference, mother was not aware findings of fact would be made:

A parent has a right “to be present at every stage of” a Family Ct Act article 10 proceeding as a matter of due process, but that right “is not absolute” … . Family Ct Act § 1042 provides that “a court may proceed with a hearing . . . in a parent’s absence, so long as the subject child is represented by counsel, and the absent parent may thereafter move to vacate the resulting order and schedule a rehearing” … . Vacatur of that order would ordinarily be warranted if, upon motion, the parent demonstrated “a meritorious defense to the petition, unless . . . [he or she] willfully refused to appear at the hearing” … . If the parent demonstrates that the default itself resulted from a deprivation of his or her “fundamental due process rights,” however, the default is a nullity and no showing of a meritorious defense is required … . …

… [A]lthough respondent was arguably on notice of the April 2018 conference, she did not receive notice that a potential fact-finding hearing might be conducted at it so as to satisfy due process … . Indeed, despite the references in the order of fact-finding to an inquest, there is no dispute that Family Court departed from “the proper course” of conducting a hearing in respondent’s absence by accepting the allegations in the petition as proven by virtue of respondent’s default … . It would offend due process to hold that respondent “default[ed] in attending a hearing that she did not know was going to happen and did not, in fact, happen” … . Thus, notwithstanding the failure of respondent to articulate a meritorious defense, Family Court abused its discretion in denying respondent’s motion. Matter of Arra L. (Christine L.), 2020 NY Slip Op 02829, Third Dept 5-14-20

 

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