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ATTORNEY FOR THE CHILD PROPERLY AWARDED ATTORNEY’S FEES OF OVER $34,000 IN CONNECTION WITH THE APPEALS IN THIS DIVORCE CASE; HOWEVER A HEARING IS NECESSARY TO APPORTION THE FEES BETWEEN THE PARENTS (SECOND DEPT).

The Second Department determined the attorney for the child in this divorce proceeding properly made a motion seeking attorney’s fees for the appeal of the matter to the Second Department and the Court of Appeals and was properly awarded attorney’s fees of over $34,000. However, the Second Department held that a hearing was necessary to determine how the fee should be apportioned between the parents:

In this action for a divorce and ancillary relief, the Supreme Court awarded sole legal and physical custody of the parties’ minor children to the defendant, without a hearing, under the adequate relevant information standard. This Court affirmed the order … , and the plaintiff appealed to the Court of Appeals. The attorney for the children (hereinafter the AFC) opposed the plaintiff’s appeal, but proposed a new standard for the need for evidentiary hearings in custody cases. The Court of Appeals reversed this Court’s order, rejecting the adequate relevant information standard, and determined that an evidentiary hearing was required in this particular case … . …

Contrary to the plaintiff’s contention, the difference in opinion between this Court (see Matter of Plovnick v Klinger, 10 AD3d 84) and the Appellate Division, Third Judicial Department (see Redder v Redder, 17 AD3d 10), as to whether attorneys for children may be compensated directly by the children’s parents, rather than by the State, does not give rise to a constitutional claim under the equal protection clauses of the state and federal constitutions. …

… [T]he plaintiff’s motion to modify the parties’ apportionment of responsibility for the AFC’s fees should not have been decided without an evidentiary hearing. We take no position on whether the equal split between the parties was appropriate, but because the affidavits submitted by the parties provided sharply conflicting reports on the parties’ finances … and there was “no evidence in the record that the financial circumstances of the parties [had] ever been considered” … . Lee v Rogers, 2019 NY Slip Op 08559, Second Dept 11-27-19

 

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ATTORNEY FOR THE CHILD (AFC) SHOULD HAVE BEEN APPOINTED IN THIS CUSTODY MODIFICATION PROCEEDING, MATTER REMITTED (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, determined that an attorney for the child (AFC) should have been appointed in this custody modification proceeding and remitted the matter:

… [W]e reverse and remit for further proceedings conducted with the involvement of an AFC. This Court has previously noted that the “appointment of an [AFC] in a contested custody matter remains the strongly preferred practice,” while acknowledging that “such appointment is discretionary, not mandatory” ( … see Family Ct Act § 249 [a]). We have also “emphasize[d] the contributions competent [AFCs] routinely make in contested matters; they not only protect the interests of the children they represent, they can be valuable resources to the trial court” … . While advocating for the child, an AFC may provide a different perspective than the parents’ attorneys, including through the presentation of evidence on the child’s behalf, and may “recommend alternatives for the court’s consideration” … . Even absent a request, a court may appoint an AFC on its own motion (see Family Ct Act § 249 [a]).

Family Court had appointed an AFC for this child in connection with a previous proceeding that resulted in the September 2017 stipulated order. Yet, when — less than two months after entry of that order — the parties’ relationship deteriorated significantly, Family Court inexplicably did not appoint the same or another AFC to protect the child’s interests. The lack of an AFC prejudiced the child’s interests. Matter of Marina C. v Dario D., 2019 NY Slip Op 53953, Third Dept 11-27-19

 

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THE STAY-AWAY ORDER OF PROTECTION SHOULD NOT HAVE BEEN VACATED BASED SOLELY ON A PSYCHOLOGIST’S REPORTS IN THE ABSENCE OF ANY TESTIMONY (THIRD DEPT).

The Third Department, reversing Family Court, determined that the stay-away order of protection should not have been vacated without further fact-finding. Apparently the order was vacated based upon a psychologist’s reports without any testimony:

On … the first day of a combined fact-finding hearing on both petitions, both of the psychologist’s reports were received into evidence on consent. Without any testimony being taken, respondent, joined by the attorney for the child, then moved to vacate the stay-away order of protection. Both petitioner and the mother objected, and, after taking a brief recess, Family Court issued a ruling from the bench vacating the stay-away order of protection, without explanation. …

The record shows that the stay-away order of protection was based on allegations of sexual abuse first reported by the child’s therapist and subsequently pursued by petitioner after its caseworkers interviewed the child. The petition speaks to specific acts of sexual abuse, as well as the emotional stress on the child resulting from respondent’s threatening behavior towards the mother. The decision to vacate the stay-away order of protection was made on the first day of trial and, although the psychologist’s reports were admitted into evidence, petitioner was not precluded from subpoenaing the psychologist for purposes of cross-examination. Moreover, petitioner represented that it intended to call the child’s therapist as a witness. Although we are mindful that the psychologist spoke to the therapist as a collateral source and was highly critical of the interview methods utilized by petitioner’s caseworkers, this record should have been further developed before a determination was made as to whether it was in the child’s best interests to allow respondent unsupervised, overnight parenting time. This is particularly so given respondent’s ongoing, threatening behavior towards the mother and others via text message and on social media. Matter of Andreija N. (Michael N.), 2019 NY Slip Op 53957, Third Dept 11-27-19

 

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NEW YORK DID NOT HAVE JURISDICTION OVER FATHER, A KENTUCKY RESIDENT, IN THIS DIVORCE ACTION: THE COUPLE HAD NOT LIVED TOGETHER IN NEW YORK STATE FOR 23 YEARS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined New York did not have jurisdiction over father, a Kentucky resident, in this divorce action. The couple had last lived in New York in 1995 and had resided in Kentucky from 2003 to 2015:

Assuming, without deciding, that the wife established one of the predicates for jurisdiction under CPLR 302 (b), we find that the quality and nature of the husband’s activities in New York were such that it would be unreasonable and unfair to require him to defend an action in this state. Although the parties married in New York in 1991 and resided here until 1995, they have not resided together in this state in over 23 years. From 2003 until 2015, the parties resided together in Kentucky, where, at the time of commencement of this action, the husband was employed as a university professor and the parties owned real property. With the husband’s consent, the wife moved to New York with the parties’ son  in August 2015 and, as vaguely asserted by the wife, the husband has visited them in New York. The parties have not rented or purchased a home in New York. Rather, the wife and the son have lived rent-free with the wife’s parents, with the husband providing additional financial support. In our view, the husband’s contacts with New York are insufficient to warrant the exercise of personal jurisdiction over him … .Accordingly, Supreme Court should have granted the husband’s motion to dismiss the complaint for lack of personal jurisdiction. Crosby v Crosby, 2019 NY Slip Op 08469, Third Dept 11-21-19

 

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MOTHER WAS NOT ADVISED OF THE RIGHTS HER SON WAS GIVING UP BY ADMITTING TO THE OFFENSE IN THIS JUVENILE DELINQUENCY PROCEEDING, NEW FACT-FINDING ORDERED (FIRST DEPT).

The First Department, reversing Family Court in this juvenile delinquency proceeding, determined appellant’s mother was not advised of the rights appellant was giving up by admitting to the offense:

Family Court … adjudicated appellant a juvenile delinquent … upon his admission that he committed an act that, if committed by an adult, would constitute criminal facilitation in the fourth degree, and placed him on probation for a period of 12 months … .

As the presentment agency concedes, appellant’s admission was defective because the court’s allocution of appellant’s mother failed to advise her of the rights appellant was waiving as a result of his admission and the dispositional consequences of appellant’s admission (see Family Ct Act § 321.3[1]). However, because appellant violated his probation, which was extended and remains in effect, we agree with the presentment agency that the petition should not be dismissed, and that the matter should be remanded for a new fact-finding determination on both petitions covered by the disposition … . Matter of Kwesi P., 2019 NY Slip Op 08359, First Dept 11-19-19

 

MOTHER’S PETITION FOR AN UPWARD MODIFICATION OF FATHER’S CHILD SUPPORT BASED UPON A CHANGE IN FATHER’S EMPLOYMENT STATUS WAS PROPERLY GRANTED, BUT THE MODIFICATION SHOULD HAVE BEEN MADE RETROACTIVE TO THE DATE OF EMPLOYMENT, NOT THE DATE OF THE PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for an upward modification of father’s support obligation should have been granted in its entirety, i.e., retroactive to the date of the change in father’s employment status, not to the date of the petition:

The court erroneously concluded that the modification of child support could only be retroactive to the date petitioner filed the petition. Because it is undisputed that the father did not notify the Support Collection Unit of his change in employment status as required by the prior support order, the court had the authority to modify the child support payments retroactive to the date of his employment … . Matter of Oneida County Dept. of Social Servs. v Abu-Zamaq, 2019 NY Slip Op 08341, Fourth Dept 11-15-19

 

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FATHER WAS ENTITLED TO A HEARING ON WHETHER HE WILLFULLY VIOLATED A CHILD SUPPORT ORDER, ALTHOUGH FATHER COMPLETED THE SENTENCE OF INCARCERATION, THE APPEAL IS NOT MOOT BECAUSE OF THE STIGMA OF A CIVIL CONTEMPT FINDING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father was entitled to a hearing on whether he willfully violated a child support order. The Fourth Department noted that. although father had completed the sentence of incarceration, the appeal was not moot because of the consequences which could flow from a finding of civil contempt:

We agree with the father … that the court erred when it determined that the father’s alleged violation of the child support order was willful because it did not afford the father with the opportunity to be heard and present witnesses (… see generally Family Ct Act §§ 433, 454 [1]). Although “[n]o specific form of a hearing is required, . . . at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” … . Moreover, “[i]t is well settled that neither a colloquy between a respondent and [the] [c]ourt nor between a respondent’s counsel and the court is sufficient to constitute the required hearing” … .

Here, none of the parties’ appearances on the violation petition consisted “of an adducement of proof coupled with an opportunity to rebut it” … . At most, there was merely “a colloquy” between the father and Support Magistrate, which is insufficient to constitute the required hearing . Moreover, there is nothing in the record to establish …  petitioner mother provided admissible evidence with respect to the father’s alleged willful failure to pay child support, nor is there any admissible evidence submitted by the Support Collection Unit (see generally Family Ct Act § 439 [d] … ). Also, the father was never given the opportunity to present evidence rebutting the allegations in the petition. Matter of Green v Lafler, 2019 NY Slip Op 08306, Fourth Dept 11-15-19

 

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CHILD’S STATEMENT ABOUT AGE-INAPPROPRIATE SEXUAL CONDUCT NOT CORROBORATED; NEGLECT ALLEGATIONS AGAINST MOTHER NOT PROVEN (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined that mother’s child’s statement about age-inappropriate sexual conduct involving mother’s child and a non-family child was not corroborated and therefore the neglect allegation against mother was not proven:

Although the testimony of the two caseworkers established that the disclosure reflected age-inappropriate knowledge of sexual matters, petitioner failed to submit “[a]ny other evidence tending to support” the reliability of the youngest child’s statements apart from the disclosure itself … . …

The two caseworkers who testified on behalf of petitioner asserted that they utilized forensic interviewing techniques to avoid leading the youngest child during their interviews, but petitioner failed to offer any evidence establishing that either caseworker was qualified to give expert validation testimony in such matters … . …

An admission by the mother “that she had heard that the purported prior incident occurred in the manner stated by others . . . is in no sense an admission of any fact pertinent to the issue, but a mere admission of what [she] had heard without adoption or indorsement’ ” … . …

… [P]etitioner offered no admissible evidence regarding the time frame when the mother became aware of that incident. Absent such evidence, we cannot conclude that the mother had sufficient time to act but failed to appropriately do so. …

We therefore conclude that petitioner failed to establish by a preponderance of the evidence that the mother neglected the subject children by failing to act as ” a reasonable and prudent parent’ ” would have acted under the circumstances … . Matter of Carmellah Z. (Casey V.), 2019 NY Slip Op 08298, Fourth Dept 11-15-19

 

MOTHER’S MOTION TO VACATE THE ORDER FINDING SHE HAD NEGLECTED THE CHILDREN SHOULD HAVE BEEN GRANTED; MOTHER DEMONSTRATED SUCCESSFUL EFFORTS TO ADDRESS HER MENTAL HEALTH AND PARENTING SKILLS (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate the order finding she had neglected the children should have been granted:

In May 2018, the mother moved pursuant to Family Court Act § 1061 to vacate so much of the order of fact-finding and disposition as, upon her consent to the entry of an order of fact-finding without admission pursuant to Family Court Act § 1051(a), found that she neglected the children. In support of the motion, the mother submitted, inter alia, (1) letters from her treating clinicians, which established that she had been in psychotherapy since March 2016, she was compliant, and no medication had been ordered, (2) a report from ACS [Administration for Children’s Services] indicating that the eldest child particularly enjoyed overnight weekend parental access with the mother, that the mother was compliant with the court-ordered services, and that ACS would not be seeking an extension of supervision for the mother, and (3) a certificate establishing that the mother had completed a parenting skills class. The Family Court denied the mother’s motion, and the mother appeals. …

Here, the mother demonstrated good cause to vacate so much of the order of fact-finding and disposition as, upon her consent to the entry of an order of fact-finding without admission pursuant to Family Court Act § 1051(a), found that she neglected the children. The mother demonstrated that she had successfully completed the court-ordered services and programs and that the requested vacatur of the finding of neglect was in the best interests of the children … . Matter of Aaliyah T. (Sheena A. D.), 2019 NY Slip Op 08196, Second Dept 11-13-19

 

FAMILY COURT SHOULD NOT HAVE MADE RULINGS ON CUSTODY AND MOTHER’S PETITION TO RELOCATE BEFORE COMPLETING THE HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have awarded sole custody of daughter to mother and granted mother’s petition to relocate without completing the hearing:

The mother commenced this proceeding against the father seeking to modify a prior order of custody so as to award her sole legal and physical custody of the parties’ two children and permit her to relocate with both children to the State of Washington. The Family Court commenced a hearing and, prior to the completion of the hearing … modified the prior order so as to award the father sole legal and physical custody of the parties’ son and so as to award the mother sole legal and physical custody of the parties’ daughter and permit her to relocate with the daughter to the State of Washington. …

Here, where there were many controverted issues, the Family Court should not have awarded the mother sole custody of the parties’ daughter and permitted her to relocate with the daughter prior to completing the hearing. The father had not had the opportunity to present a case and was deprived of the opportunity to cross-examine a key witness called by the mother. Moreover, the court failed to give proper consideration to the effect that the daughter’s relocation from New York to the State of Washington would have on the relationship between the siblings, especially given the mother’s stated willingness to remain in New York … . Matter of Pinto v Pinto, 2019 NY Slip Op 08195, Second Dept 11-13-19

 

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