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ON APPEAL, THE ATTORNEY FOR THE CHILD DID NOT FULFILL HIS OBLIGATION TO CONSULT WITH THE CHILDREN TO DETERMINE THEIR WISHES OR TO ADEQUATELY EXPLAIN WHY CONSULTATION WAS NOT POSSIBLE; HE WAS RELIEVED OF HIS ASSIGNMENT (THIRD DEPT).

The Third Department, relieving the attorney for the child (AFC) of responsibility for the appeal, determined the AFC did not fulfill his responsibilities under the Rules of the Chief Judge (22 NYCRR 7.2):

The Rules of the Chief Judge require that an AFC in a custody or visitation proceeding “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]; see 22 NYCRR 7.2 [c]), and further provide that, “[i]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” … . The Rules establish only two circumstances in which an AFC may adopt a position that does not reflect the child’s wishes — specifically, 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” … . …

The AFC here wholly failed to fulfill the obligations imposed by these provisions upon this appeal. The only stated basis for his determination to advocate for the children’s best interests rather than for their wishes was their ages. However, it was the AFC’s obligation to “consult with and advise the child[ren] to the extent of and in a manner consistent with [their] capacities” … . At 10, the older child was certainly old enough to be capable of expressing her wishes, and whether the younger child, at 6, had the capacity to do so was not solely dependent upon her calendar age, but also upon such individual considerations as her level of maturity and verbal abilities … . … Here, the AFC’s brief is devoid of any indication of the children’s wishes, with no reference to 22 NYCRR 7.2 or to the analysis that this rule requires an AFC to undertake before advocating for a position that does not express the child’s wishes … . …

Additionally, although the record reveals that the AFC met with the children during the Family Court proceeding, it does not appear that he met or spoke with them again during the appeal … . Matter of Jennifer VV. v Lawrence WW., 2020 NY Slip Op 02136, Third Dept 4-2-20

 

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JUDGE EXHIBITED BIAS AGAINST MOTHER AND INTERFERED EXCESSIVELY IN THE CUSTODY HEARING; NEW HEARING ORDERED BEFORE A DIFFERENT JUDGE (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge was biased against mother and excessively interfered in the custody hearing:

The record of the proceedings supports the mother’s contention that the Family Court was biased against her, depriving her of a fair and impartial hearing. Although the mother’s claim of bias is not preserved for appellate review … . Here, the record demonstrates that the court predetermined the outcome of the case during the hearing and took an adversarial stance against the mother by, among other things, interjecting itself into the proceedings by cross-examining the mother on matters irrelevant to a determination of custody, including referring to the mother as “emotionally excessive” and inquiring as to how many online dating web sites the mother utilized at the time she met the father and as to when the mother and the father became intimate. The court also asked the mother, “so you were looking to start a relationship with someone?” and then commented, “And so you were married at the time?” Although the father was also married to someone when he began his relationship with the mother, no such questions or comments were directed to him by the court. The court’s inquiry of the mother exceeded 30 pages of transcript over the course of the two-day hearing. Although the court also questioned the father, the first inquiry related to setting up a parental access schedule for the father while the hearing was pending and the second set of inquiries appeared designed to elicit testimony from the father that was unfavorable to the mother, including one instance where the court intimated that the mother was practicing “extortion” against the father in order to gain an advantage in the proceedings … . Matter of Siegell v Iqbal, 2020 NY Slip Op 02084, Second Dept 3-25-20

 

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MOTHER PRESENTED SUFFICIENT EVIDENCE OF A CHANGE IN CIRCUMSTANCES TO JUSTIFY AWARDING HER SOLE CUSTODY OF THE CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined there was sufficient evidence of a change of circumstances to award mother sole custody of the children:

… [T]he Family Court’s determination, in effect, that there had been no change in circumstances requiring a transfer of legal custody to the mother and a modification of the father’s parental access lacks a sound and substantial basis in the record … . The record reflects that the children’s relationship with the father has deteriorated since the issuance of the custody order … , that the father had threatened to strike the children with a belt, and that the father denigrated the mother in the presence of the children … . Moreover, the children, who were 11 and 13 years old at the time of the hearing, indicated a strong preference to reside with the mother … . Matter of Georgiou-Ely v Ely, 2020 NY Slip Op 02049, Second Dept 3-25-20

 

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BECAUSE FATHER’S ATTORNEY APPEARED IN THE CUSTODY PROCEEDING FATHER WAS NOT IN DEFAULT AND THE ORDER WAS THEREFORE APPEALABLE (FOURTH DEPT).

The Fourth Department determined father was not in default because his attorney appeared. Therefore the custody order was appealable:

Petitioner father commenced this proceeding seeking to modify a prior order of custody that, inter alia, awarded sole legal and physical custody of the subject child to respondent mother. The father now appeals from an order that, inter alia, continued sole legal and physical custody of the subject child with the mother.

We agree with the father that Family Court erred in entering the order upon his default based on his failure to appear in court. The record establishes that the father “was represented by counsel, and we have previously determined that, [w]here a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded” … . Matter of Williams v Richardson, 2020 NY Slip Op 01975, Fourth Dept 3-20-20

 

THERE IS NO LEGAL SUPPORT FOR A ‘TRI-PARENT’ ARRANGEMENT WHERE A FORMER SAME-SEX PARTNER OF MOTHER, MOTHER AND FATHER SHARE VISITATION AND CUSTODY OF THE CHILD (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Centra, over a two-justice concurrence and a dissent, determined petitioner, the former same-sex partner of mother, did not have standing to seek custody and visitation of the child, despite mother’s support of the petition. The petitioner moved out of mother;s residence in 2010. Mother thereafter conceived a child with father. At first father wanted nothing to do with the child, but he has visited the child since 2014. Petitioner participated in the birth and naming of the child and assumed the role of a parent, but the romantic relationship with mother ended in 2012. Father opposed petitioner’s 2017 petition for custody and visitation. Mother did not want to terminate father’s rights. Family Court granted father’s motion to dismiss the petition. The Fourth Department affirmed finding no legal support for a “tri-parent” custody and visitation arrangement:

The wording of Domestic Relations Law § 70 (a) is clear and straightforward. It states that “either” parent may seek custody or visitation (id.). It is a well-settled principle of statutory construction that “[w]ords of ordinary import used in a statute are to be given their usual and commonly understood meaning” … . The common dictionary definition of “either” when used as an adjective has two senses, i.e., “being the one and the other of two” and “being the one or the other of two” … . In addition, when the Court of Appeals stated in Brooke S.B. that section 70 does not define the critical term “parent,” it added the following in a footnote: “We note that by the use of the term either,’ the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time” (Brooke S.B., 28 NY3d at 18 n 3). In our view, the clear wording of section 70 (a), which was expressly recognized by the Court of Appeals, precludes any relief to petitioner here because there are already two parents: the mother and the father. Under section 70 (a), there simply can be no more. We are therefore in agreement with the Third Department’s recent decision determining that to allow three parents to “simultaneously have standing to seek custody . . . does not comport with the holding in Matter of Brooke S.B.” (Matter of Shanna O. v James P., 176 AD3d 1334, 1335 [3d Dept 2019]). Matter of Tomeka N.H. v Jesus R., 2020 NY Slip Op 02015, Fourth Dept 3-20-20

Similar issue and result in Matter of Wlock v King, 2020 NY Slip Op 02019, Fourth Dept 3-20-20

 

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WHERE THERE IS A DISCREPANCY THE ORDER MUST BE CONFORMED WITH THE DECISION (FOURTH DEPT).

The Fourth Department noted a discrepancy between the decision and the order. Therefore the order was conformed to the decision:

… [W]e note that, in its bench decision, Family Court determined that the child ,,, was derivatively neglected. Inasmuch as there is a conflict between the decision and the order in appeal No. 1, that order must be conformed to the decision (… see generally CPLR 5019 [a]). We therefore modify the order … by vacating that part of the order determining that the child was derivatively abused and substituting therefor a determination that the child was derivatively neglected. Matter of Aaren F. (Amber S.), 2020 NY Slip Op 01739, Fourth Dept 3-13-20

 

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FAMILY COURT DID NOT MAKE THE REQUISITE FINDINGS IN THIS CUSTODY MATTER WHERE A GRANDPARENT WAS SEEKING CUSTODY, MATTER REMITTED; ASSUMING FAMILY COURT’S ORDER WAS NOT FINAL, THE NOTICE OF APPEAL WAS DEEMED AN APPLICATION FOR LEAVE TO APPEAL; THE DISSENT ARGUED THE ORDER IS NOT APPEALABLE (FOURTH DEPT).

The Fourth Department, remitting the matter, over a dissent, determined Family Court should not have the requisite findings in this custody matter where a grandparent was seeking custody. Family Court had ordered the parties to stipulate to the custody arrangement noting that , if the parties do not agree, a hearing would be held. The dissent argued the order was not final and therefore was not appealable. The majority, assuming the order was not final, deemed the notice of appeal to be an application for leave to appeal:

With respect to the merits of the mother’s contentions regarding the court’s award of joint custody to the father and the maternal grandmother, we conclude that the court failed to set forth “those facts upon which the rights and liabilities of the parties depend” … , specifically its analysis of whether extraordinary circumstances existed to warrant an inquiry into whether an award of joint custody to the maternal grandmother was in the best interests of the child. ” It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . Thus, we agree with the mother that the court erred in not determining whether extraordinary circumstances existed before awarding joint custody to the maternal grandmother. The maternal grandmother here had the burden of establishing extraordinary circumstances, which remains the case “whether the nonparent is seeking sole custody or joint custody with one of the parents” … .

We conclude that ” [t]he absence of the required findings precludes proper appellate review’ ” … . Matter of Steeno v Szydlowski, 2020 NY Slip Op 01808, Fourth Dept 3-13-20

 

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EXPERT WITNESSES CORROBORATED THE CHILD’S OUT-OF-COURT STATEMENTS IN THIS CHILD SEXUAL ABUSE CASE; THE PETITION, DISMISSED BY FAMILY COURT, REINSTATED AND A FINDING OF ABUSE MADE BY THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined that the child’s prior out-of-court statements should have been admitted in this child sexual abuse proceeding. The expert witnesses corroborated the child’s statements:

“A child’s prior out-of-court statements may provide the basis for a finding of abuse, provided that these hearsay statements are corroborated, so as to ensure their reliability'” . “Any other evidence tending to support the reliability of the previous statements . . . shall be sufficient corroboration” (Family Ct Act § 1046[a][vi]). ” The Family Court has considerable discretion in deciding whether a …  out-of-court statements alleging incidents of abuse have been reliably corroborated'” … . Although deference is to be given to the hearing court’s determinations as to credibility … , where that court’s credibility determination is not supported by the record, “this Court is free to make its own credibility assessments and overturn the determination of the hearing court” … .

Contrary to the Family Court’s determination, the testimony of the petitioner’s expert witnesses, including the validating expert witness … , provided sufficient corroboration of the subject child’s numerous and consistent out-of-court statements regarding the father’s sexual abuse of her, and together with the testimony of the petitioner’s caseworker, established by a preponderance of the evidence that the father sexually abused the child … . Further, the court failed to give sufficient consideration to the inconsistent and evasive nature of the father’s testimony … . Matter of Tazya B. (Curtis B.), 2020 NY Slip Op 01341, Second Dept 2-26-20

 

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FAMILY COURT SHOULD NOT HAVE, SUA SPONTE, TERMINATED MOTHER’S PARENTAL RIGHTS ON MENTAL-ILLNESS GROUNDS IN THE ABSENCE OF THE STATUTORILY-REQUIRED PSYCHOLOGICAL EVALUATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have terminated mother’s parental right on mental-illness grounds without the results of the statutorily-required examination. The psychologist appointed to evaluate mother (Horenstein) did not do so and rendered his opinion based upon a review of records of her hospitalization:

Pursuant to Social Services Law § 384-b (6) (e), the court is required to order the parent, alleged to be mentally ill, to be examined by a qualified psychiatrist or psychologist and shall take testimony from the appointed expert … . Significantly, paragraph (c) of subdivision 6 prohibits a determination as to the legal sufficiency of the proof until such testimony is taken … . An exception exists “[i]f the parent refuses to submit to such court-ordered examination, or if the parent renders himself [or herself] unavailable . . . by departing from the state or by concealing himself [or herself] therein” … . In such instance, “the appointed psychologist or psychiatrist, upon the basis of other available information, . . . may testify without an examination of such parent, provided that such other information affords a reasonable basis for his [or her] opinion” … . * * *

… [W]e conclude that Family Court erred in proceeding with the termination of respondent’s parental rights without the statutorily-required examination. Horenstein pointed out that there was no basis to find that respondent refused to be evaluated. Nor did respondent make herself unavailable “by departing from the state or by concealing [herself] therein” … . To the contrary, her placement in CDPC was involuntary and, despite her release by December 1, 2017, no further attempt was made to schedule an evaluation. Because the statutory exception does not apply, Family Court lacked authority to determine the legal sufficiency of the proof without a contemporaneous evaluation … . Even though respondent raised no objection at the hearing, this statutory mandate requires that we remit the matter to Family Court for a new hearing and determination … . Matter of Rahsaan I. (Simone J.), 2020 NY Slip Op 01212, Third Dept 2-20-20

 

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FAMILY COURT, SUA SPONTE, SHOULD NOT HAVE DISMISSED INCARCERATED FATHER’S PETITION ALLEGING MOTHER’S NONCOMPLIANCE WITH AN ORDER MANDATING COMMUNICATION WITH THE CHILD WITHOUT HOLDING A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, should not have, sua sponte, dismissed, without a hearing, father’s petition alleging mother’s noncompliance with provisions of an order requiring communication between child and father, who is incarcerated:

Where, as here, a petition sets forth facts of willful noncompliance which, if established at a hearing would provide a basis for the relief sought, Family Court must afford the petitioner an opportunity to be heard … . The father alleged that he is being denied his routine monthly phone call, as well as calls at Christmas and the child’s birthday, as required by the consent order. Accepting the representations from counsel for the mother and the attorney for the child that missed calls were made up and that the child no longer wishes to communicate with the father and chooses not to respond to his correspondence, Family Court concluded that there were no contested facts and dismissed the petition. In doing so, the court failed to address the mother’s obligation under the consent order to encourage the child to communicate with the father. Whether she failed to do so as alleged remains a disputed contention necessitating relevant testimony, not simply the arguments of counsel. Nor did the court address the father’s claim that the mother failed to provide updated photographs and school records. In our view, the court erred in dismissing the petition without a hearing … . Matter of Shannon X. v Koni Y., 2020 NY Slip Op 01215, Third Dept 2-20-20

 

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