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FATHER’S VISITATION SHOULD NOT HAVE BEEN SUBJECT TO MOTHER’S CONSENT; ATTORNEY FOR THE CHILD SHOULD NOT HAVE REFERRED TO EVIDENCE TAKEN IN THE LINCOLN HEARING IN THE APPELLATE BRIEF; THE HEARING TRANSCRIPTS ARE SEALED AND CONFIDENTIAL (THIRD DEPT). ​

The Third Department, modifying Family Court, determined father’s visitation rights should not have been made subject to mother’s consent and the attorney for the child should not have referred to the Lincoln hearing in the appellate brief:

Although the order provides the father with the opportunity for frequent and regular unsupervised access, the provision conditioning expansion of visitation to include overnight visitation only upon the mother’s consent is an impermissible delegation of authority … . …

… [W]e note our displeasure that the attorney for the children made repeated references to the Lincoln hearing in the appellate brief that he submitted on their behalf … . Family Court’s promise of confidentiality should not be lightly breached, and these transcripts are sealed. We again emphasize that “[t]he right to confidentiality during a Lincoln hearing belongs to the child and is superior to the rights or preferences of the parents. Children whose parents are engaged in custody and visitation disputes must be protected from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships” … . We further note that the breach of the confidentiality of the Lincoln hearing — and of the trust of the children — was exacerbated by the fact that the attorney for the children made certain representations about the children’s testimony that were inconsistent with their statements during the hearing. Matter of Ellen TT. v Parvaz UU., 2019 NY Slip Op 09328, Third Dept 12-26-19

 

BY STATUTE FAMILY COURT MAY NOT SET A GOAL OF ADOPTION BY SOCIAL SERVICES WITHOUT ORDERING THE FILING OF A PETITION TO TERMINATE PARENTAL RIGHTS; HERE FAMILY COURT ATTEMPTED TO SET THE INCOMPATIBLE GOALS OF ADOPTION AND REUNIFICATION WITH THE PARENT; THE INTENT OF FAMILY COURT IS CLEAR (HOPED-FOR REUNIFICATION) BUT THERE IS NO STATUTORY AUTHORITY FOR THE METHOD CHOSEN BY THE COURT (THIRD DEPT).

The Third Department, reversing Family Court, determined that the goals set by Family Court, moving toward adoption of the child while setting another hearing to see if reunification of the child with mother is possible, were incompatible under the statutes. The intent of Family Court was clear, but the method was not allowed by statute. The matter was sent back for further proceedings:

… [W]e find that Family Court erred in modifying the permanency goal to placement for adoption without directing petitioner to commence a proceeding to terminate respondent’s parental rights. Family Ct Act § 1089 (d) (2) (i) provides that a court may impose one of five specified permanency goals, including “placement for adoption with the local social services official filing a petition for termination of parental rights” … . Nothing in the statutory language permits a permanency goal of placement for adoption to be imposed in the absence of a concurrent petition to terminate the respondent’s parental rights. Further, the statute does not permit “the court [to] select and impose on the parties two or more goals simultaneously” … .

Here, in addition to stating that the permanency goal was being changed to placement for adoption and that no immediate termination proceeding would be commenced, Family Court also stated that another permanency hearing would be scheduled in six months and that it was the court’s “expectation and hope” that the goal could be changed back to reunification at that time. The express language of the permanency order imposes only one goal. However, the effect of the failure to commence termination proceedings and the court’s directions to petitioner regarding services and diligent efforts was to impose two concurrent, contradictory goals of placement for adoption and reunification. Matter of Joseph PP. (Kimberly QQ.), 2019 NY Slip Op 09347, Third Dept 12-26-19

 

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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