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FORMER SAME SEX PARTNER WHO AGREED TO THE CONCEPTION OF A CHILD CARRIED BY HER FORMER PARTNER DEMONSTRATED SHE HAD STANDING AS A PARENT TO SEEK PARENTING TIME WITH THE CHILD (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Garry, determined that petitioner, who participated in the conception of the child (by artificial insemination) carried by her then same-sex partner, was a “parent” entitled to visitation (parenting time) with the child pursuant to Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1 [2016]):

… [T]he parties agreed to conceive a child using artificial insemination. Both parties attended appointments with a fertility doctor. In testimony that Family Court found to be credible, petitioner stated that she and respondent agreed to select a sperm donor who would reflect petitioner’s ethnic background. There were two inseminations; petitioner was present and injected the sperm on at least one of these occasions. Petitioner’s credit card was used to pay the related expenses. …  Petitioner attended at least one baby shower where friends and family members of both parties were present. Petitioner attended respondent’s prenatal appointments, was present when the child was born, and cut the child’s umbilical cord. The child was given two last names, reflecting the parties’ two surnames. … Petitioner testified that the child was named, in part, after petitioner’s mother. Petitioner assisted in buying items for the child and shared day-care costs with respondent. The two parties are listed as the child’s two mothers in some of her medical and immunization records. Respondent testified that she told petitioner that the child would be part of petitioner’s life if they continued to reside together and also if they separated, so long as petitioner did not engage in illegal activities, but that if petitioner did so engage, she would not have a role in the child’s life.

Upon this record, we find that Family Court correctly determined that petitioner falls within the statutory definition of a parent and, thus, has standing in this proceeding. Contrary to respondent’s argument, Family Court did not err in applying the conception test to determine petitioner’s standing rather than a “functional” test that would have examined the relationship between petitioner and the child after the child’s birth … . The evidence fully establishes that the parties planned jointly for the child’s conception, participated jointly in the process of conceiving the child, planned jointly for her birth, and planned to raise her together. Accordingly, petitioner satisfied her burden to prove by clear and convincing evidence that she and respondent entered into an agreement to conceive the child and raise her as co-parents. Thus, she established her standing to seek custody and parenting time under the conception test without regard to her subsequent relationship with the child … . Matter of Heather NN. v Vinnette OO., 2019 NY Slip Op 09325, Third Dept 12-26-19

 

COURT SHOULD NOT HAVE AWARDED PLAINTIFF WIFE $25,000 AS AN INTEREST IN HER HUSBAND’S MBA DEGREE; MARITAL ASSETS WERE USED TO PROCURE THE DEGREE AND THE COST OF THE DEGREE IS NOT A PROPER BASIS FOR SUCH AN AWARD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff wife in this divorce action should not have been awarded $25,000 for her interest in her husband’s MBA degree:

At the time that this action was commenced, an academic degree earned during a marriage constituted marital property subject to equitable distribution ( … cf. Domestic Relations Law § 236[B][5][d][7]). The value of a degree is measured by the present value of the enhanced earning capacity which it affords the holder … . The nontitled spouse is required to establish the value of the enhanced earning capacity and demonstrate that the nontitled spouse made a substantial contribution to the acquisition of the degree … . Here, the Supreme Court awarded the plaintiff $25,000, not based on the value of the defendant’s enhanced earning capacity, but rather on its determination of the cost of the acquisition of the MBA degree. The utilization of marital funds for the acquisition of the defendant’s MBA degree was a choice made by the parties during the course of the marriage that should not be second-guessed once the marriage has ended … . Furthermore, the plaintiff failed to establish the actual value of the defendant’s enhanced earning capacity … , and the court declined to award the defendant any distribution of the plaintiff’s master’s degree, which was also earned during the marriage. Accordingly, we modify the judgment by deleting the provision awarding the plaintiff $25,000 as and for her interest in the defendant’s MBA degree. Ospina-Cherner v Cherner, 2019 NY Slip Op 09276, Second Dept 12-24-19

 

FATHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED ABSENT A FULL HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for sole custody should not have been granted absent a full hearing:

By “Agreed Order in Suit Affecting the Parent-Child Relationship” (hereinafter the Texas custody order) dated October 4, 2016, which was so-ordered by the District Court, Harris County, Texas, the parties agreed to be appointed “Joint Managing Conservators” of their child, and the father was granted the exclusive right to designate the child’s primary residence within Westchester County, New York, or any contiguous county.

Less than two months later, on November 16, 2016, the father filed a petition in the Family Court, Westchester County, to modify the Texas custody order, inter alia, so as to award him sole custody of the child. The mother opposed the petition. Over 21 months, the parties made eight formal appearances in Family Court in connection with the father’s petition. The court never conducted an evidentiary hearing on the father’s petition, with the exception of taking the partial testimony of one nonparty witness. By order dated September 25, 2018, over the mother’s objection and request for an evidentiary hearing, the court, inter alia, granted the father’s petition to the extent of awarding him sole legal custody of the child. The mother appeals. We reverse.

Custody determinations should ” [g]enerally’ be made only after a full and plenary hearing and inquiry'”  … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . Here, the record does not demonstrate the absence of unresolved factual issues so as to render a custody hearing unnecessary … . Matter of Salvi v Salvi, 2019 NY Slip Op 09272, Second Dept 12-24-19

 

REMOVAL OF THE CHILD FROM MOTHER’S CARE WAS NOT WARRANTED, NO SHOWING OF AN IMMINENT THREAT TO THE CHILD’S LIFE OR HEALTH (SECOND DEPT).

The Second Department, reversing Family Court, determined the child should not have been removed for the mother’s care because there was not showing of an imminent threat to the child’s life or health:

Upon a hearing pursuant to Family Court Act § 1027, “temporary removal is only authorized where the court finds it necessary to avoid imminent risk to the child’s life or health'” … . “In determining a removal application pursuant to Family Court Act § 1027, the court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal'”  … . “Imminent danger, however, must be near or impending, not merely possible” … .

Here, the petitioner failed to establish that the child would be subjected to imminent risk if he were not removed from the mother’s custody pending the outcome of the neglect proceeding … . The Family Court’s concerns about, inter alia, whether the mother would keep in contact with the petitioner or return to court for continued proceedings did not amount to an imminent risk to the child’s life or health that could not be mitigated by reasonable efforts to avoid removal. Matter of Cameron L. (Ashley L.), 2019 NY Slip Op 09268, Second Dept 12-24-19

 

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FAMILY COURT EXCEEDED ITS JURISDICTION WHEN IT SUSPENDED MAINTENANCE PAYMENTS; THE PAYMENTS WERE GOVERNED BY THE PARTIES’ SEPARATION AGREEMENT, AN INDEPENDENT CONTRACT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined Family Court exceeded its jurisdiction in suspending maintenance payments to mother because the maintenance was provided for in the parties’ separation agreement:

… [W]e agree with the mother and the AFC [attorney for the child] that the court exceeded its jurisdiction in suspending maintenance payments to the mother inasmuch as the parties’ separation agreement setting forth that obligation is an independent contract … . Family Court is a court of limited jurisdiction and cannot exercise powers beyond those granted to it by statute … , and “[i]t generally has no subject matter jurisdiction to reform, set aside or modify the terms of a valid separation agreement”… . We therefore modify the order by vacating the tenth provision of the second ordering paragraph insofar as it relates to the suspension of maintenance payments, and we remit the matter to Family Court for a determination of the amount of any maintenance arrears … . Matter of Krier v Krier, 2019 NY Slip Op 09129, Fourth Dept 12-20-19

 

MOTHER’S PETITION FOR PERMISSION TO RELOCATE WITH THE CHILD SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for permission to relocate with the child should not have been dismissed without a hearing:

In this proceeding pursuant to Family Court Act article 6, we agree with petitioner mother that Family Court erred in summarily granting respondent father’s motion to dismiss her petition to relocate with the parties’ child to the Honeoye Falls-Lima Central School District or Livingston County. A prior custody order entered upon the consent of the parties provided that the mother and the father had joint custody of the child with primary physical residence with the mother, and restricted the mother’s residency to certain towns within Monroe County. “Generally, [d]eterminations affecting custody and visitation should be made following a full evidentiary hearing’ ” … , and we conclude that the allegations in the mother’s petition “established the need for a hearing on the issue whether [her] relocation is in the best interests of the child” … .

The mother was not required to demonstrate a change of circumstances inasmuch as she sought permission to relocate with the subject child … . Further, the mother adequately alleged in her petition that relocation was in the best interests of the child inasmuch as she alleged that the cost of housing would be lower in Livingston County, that the child’s maternal grandfather would be able to assist the mother with childcare upon her relocation allowing her to return to work, and that the relocation would not interfere with the father’s visitation schedule. The court was therefore required to determine whether the proposed relocation was in the child’s best interests by analyzing the factors set forth in Matter of Tropea v Tropea (87 NY2d 727, 739-741 [1996] …). Matter of Johnston v Dickes, 2019 NY Slip Op 09208, Fourth Dept 12-20-19

 

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ALTHOUGH THE JUDGMENTS WERE DOCKETED, THE DEBTOR’S NAME WAS MISSPELLED RENDERING THE LIEN INVALID; ALTHOUGH THE ISSUE WAS NOT RAISED BELOW, THE APPELLATE COURT CAN CONSIDER AN ISSUE OF LAW WHICH COULD NOT BE AVOIDED IF IT HAD BEEN RAISED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judgment creditor, Fischer, was not entitled to priority over the respondent wife, Mayrav, who had been awarded real property owned with her husband, Julius, in divorce proceedings. Although Fisher’s judgments were docketed, Julius’s surname was spelled incorrectly, rendering the lien invalid. Although this issue had not been raised below, the appellate court can address it because it is a question of law which could not have been avoided if it had been raised:

“CPLR 5203(a) gives priority to a judgment creditor over subsequent transferees with regard to the debtor’s real property in a county where the judgment has been docketed with the clerk of that county” ( … see CPLR 5203[a]). Pursuant to CPLR 5018(c), a judgment is docketed when the clerk makes an entry “under the surname of the judgment debtor . . . consist[ing] of . . . the name and last known address of [the] judgment debtor” … . “A judgment is not docketed against any particular property, but solely against a name” … . ” Once docketed, a judgment becomes a lien on the real property of the debtor in that county'” … .

… [I]t is undisputed that when the judgments were docketed, Julius’s surname was spelled incorrectly. Because the judgments were not docketed under the correct surname, no valid lien against Julius’s interest in the subject property was created … . Therefore, Fischer was not entitled to a determination that his interest in the subject property was superior to that of Mayrav, whose interest “vest[ed] upon the judgment of divorce” … . Although Mayrav failed to argue in the Supreme Court that Fischer did not have a valid lien on the subject property in light of the undisputed fact that Julius’s surname was misspelled, that issue can be raised for the first time on appeal because it is one of law which appears on the face of the record and could not have been avoided if it had been raised at the proper juncture … . Accordingly, that branch of the petition which sought a determination that Fischer’s interest in the subject property was superior to that of Mayrav should have been denied. Matter of Fischer v Chabbott, 2019 NY Slip Op 09002, Second Dept 12-18-19

 

MOTHER ALLEGED SHE MADE PAYMENTS TO THIRD PARTIES IN THIS SUPPORT ENFORCEMENT PROCEEDING; FATHER SHOULD NOT HAVE BEEN ORDERED TO REIMBURSE MOTHER WITHOUT PROOF THE PAYMENTS WERE IN FACT MADE BY MOTHER (SECOND DEPT).

The Second Department, reversing Family Court, determined, in this support proceeding, father’s objections should have been granted. Although mother alleged she made payments to third parties, she presented no proof of the payments. Therefore mother did not prove father owed those amounts to her:

At a support violation hearing, the petitioner has the initial burden of presenting prima facie evidence of nonpayment of child support … . Here, the father’s concession of failure to pay child support constituted prima facie evidence of a violation … . However, a party seeking reimbursement must show that he or she actually paid the sums for which reimbursement is sought  … . Since the amount of child support arrears awarded included amounts that the mother claimed to have paid to third parties, and the father did not concede those amounts, the mother was not entitled to a money judgment in the absence of proof that she paid the subject sums, which would demonstrate that the father was indebted to her for those expenses … . Matter of Barletta v Faden, 2019 NY Slip Op 08998, Second Dept 12-18-19

 

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COURT-APPROVED CUSTODY AND PARENTAL ACCESS STIPULATION SHOULD NOT HAVE BEEN MODIFIED WITHOUT A HEARING; UPON REMITTAL AN ATTORNEY FOR THE CHILD SHOULD BE APPOINTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have modified a court-approved stipulation relating to custody and parental access without a hearing. And the Second Department ordered that an attorney for the child be appointed upon remittal:

“Modification of a court-approved stipulation setting forth terms of custody or [parental access] is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child” … . The best interests of the child are determined by a review of the totality of the circumstances  … . “Where . . . facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required” … .

In view of the parties’ disputed factual allegations in this case, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was to modify the stipulation of custody so as to award him final decision-making authority with respect to the child without a hearing to determine whether an award of final decision-making authority to the plaintiff was in the best interests of the child … . Furthermore, under the circumstances of this case, the interests of the child should be independently represented … . Walter v Walter, 2019 NY Slip Op 09056, Second Dept 12-18-19

 

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RESPONDENT IN THIS CUSTODY AND VISITATION PROCEEDING TO DETERMINE WHETHER SHE HAS STANDING TO ASSERT PARENTAL RIGHTS IS ENTITLED, PURSUANT TO DOMESTIC RELATIONS LAW 237, TO ATTORNEY’S FEES PAID BY THE “MORE MONIED” PETITIONER; RESPONDENT WAS PROPERLY CONSIDERED TO BE A “PARENT” WITHIN THE MEANING OF DOMESTIC RELATIONS LAW 237 FOR THE NARROW PURPOSE OF ENTITLEMENT TO ATTORNEY’S FEES AT THIS PRELIMINARY STAGE OF THE PROCEEDINGS (FIRST DEPT).

The First Department, in a matter of first impression, held that respondent in this custody proceeding was properly considered to be a parent for the narrow purpose of awarding attorney’s fees to be paid by the “more monied” party pursuant to Domestic Relations Law 237. The issue whether respondent has standing to assert parental rights was the purpose of the underlying proceeding:

This case raises an issue of first impression for this Court, that is, whether in a proceeding to establish standing to assert parental rights in seeking visitation and custody under Domestic Relations Law § 70 … , the court has discretion to direct the “more monied” party to pay the other party’s counsel and expert fees under Domestic Relations Law § 237 before that party has been adjudicated a parent. We find that it does.

Domestic Relations Law § 237(b), which is a statutory exception to the general rule that each party is responsible for her own legal fees … , provides, in relevant part, that “upon any application . . . concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires . . . .” This statute, like Domestic Relations Law § 70, does not define the term “parent.” * * * … [W]e conclude that highly inequitable results would flow in this case from permitting the party with far greater resources to seek custody as against the child’s primary parent without allowing that parent to seek counsel fees. Without determining that she is a parent for purposes beyond the application of Domestic Relations Law § 237(b), we find that Domestic Relations Law § 237(b) must be read to permit the court to direct petitioner to pay respondent’s counsel fees as necessary “to enable [her] to. . . defend the application. . . as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.” Matter of Kelly G. v Circe H., 2019 NY Slip Op 08961, First Dept 12-17-19

 

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