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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

 

ALTHOUGH THE MARRIAGE WAS A NULLITY, DEFENDANT IS ENTITLED TO MAINTENANCE AND EQUITABLE DISTRIBUTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that defendant’s motion for maintenance and equitable distribution should have been granted, despite the finding that the marriage was a nullity because the plaintiff-husband was not yet legally divorced when he married defendant:

The Supreme Court erred in denying the defendant’s request for maintenance and equitable distribution on the ground that the marriage was a nullity. Domestic Relations Law § 236 expressly provides that, “[i]n any action or proceeding brought . . . during the lifetime of both parties to the marriage to . . . declare the nullity of a void marriage, . . . the court may direct either spouse to provide suitably for the support of the other” … . The statute further provides that “the court, in an action wherein all or part of the relief granted is . . . declaration of the nullity of a marriage, . . . shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment” … . Valente v Cabral, 2019 NY Slip Op 08241, Second Dept 11-13-19

 

CHILD SUPPORT ARREARS PROPERLY AWARDED TO MOTHER, BUT THE AMOUNT SHOULD HAVE BEEN CALCULATED THROUGH THE HEARING DATE (FIRST DEPT).

The First Department noted that, although child support arrears were properly awarded to petitioner (mother), the amount of the arrears should have been calculated through the date of the hearing:

By submitting evidence that respondent [father] was delinquent in his support payments … , petitioner established prima facie that respondent willfully violated his child support obligations. Respondent failed to rebut this prima facie showing by presenting evidence of his inability to pay … . He testified to a loss of income but failed to provide evidence of either his lost employment or his efforts to find new employment  … . Further, contrary to respondent’s contention, whether respondent eventually satisfied his arrears has no bearing on the court’s finding of willfulness …  , particularly in light of his previous violations of his support obligations. …

Petitioner correctly argues that child support arrears accrued through the date of the hearing on remand, and should be included in the award of arrears, as required by Family Court Act § 459 and in the children’s best interests . Therefore, we remand for recalculation of the amount in arrears … . Matter of Eve S.P. v Steven N.S., 2019 NY Slip Op 08130, First Dept 11-12-19

 

MOTHER ENTITLED TO A HEARING ON WHETHER A CHANGE IN HER CIRCUMSTANCES WARRANTED A RETURN OF HER CHILDREN; CUSTODY OF THE CHILDREN HAD PREVIOUSLY BEEN AWARDED TO RESPONDENT (GREAT AUNT) (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother was entitled to a hearing on whether there had been a change of circumstances warranting the return of the custody of the children to her. Custody had previously been awarded to respondent (great aunt):

Inasmuch as there has been a prior judicial determination of extraordinary circumstances supporting the award of custody to respondent, “the appropriate standard in addressing the possible modification of the prior order is whether there has been a change of circumstances” warranting an inquiry whether modification of custody or visitation is in the best interests of the children … . We agree with the mother that Family Court erred in granting respondent’s motion to dismiss the petitions at the close of the mother’s case on the ground that the mother failed to establish a sufficient change in circumstances since entry of the stipulated order … . At the time the prior order of custody and visitation was entered, the mother did not have a vehicle or employment, and she lived with a man who was prohibited by court order from having any contact with the subject children. The mother established that, at the time of the hearing, she owned a car, worked full-time, and no longer lived with or had a relationship with the aforementioned man. Indeed, in its oral decision dismissing the petitions, the court noted that the mother had “improved” herself and that it was “impressed” with her progress. Matter of Heinsler v Sero, 2019 NY Slip Op 08052, Fourth Dept 11-8-19

 

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SUPPORT MAGISTRATE SHOULD NOT HAVE ALLOWED FATHER’S ATTORNEY TO WITHDRAW WITHOUT NOTICE TO FATHER AND SHOULD NOT HAVE PROCEEDED IN FATHER’S ABSENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Support Magistrate’s findings should not have been confirmed because the Support Magistrate allowed father’s attorney to withdraw without notice to father and proceeded in father’s absence:

… [T]he Support Magistrate erred in allowing the father’s attorney to withdraw as counsel and in proceeding with the hearing in the father’s absence. “An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client . . . [, and a] purported withdrawal without proof that reasonable notice was given is ineffective” … . Here, the father’s attorney did not make a written motion to withdraw; rather, counsel merely agreed when the Support Magistrate, after noting the father’s failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel’s decision to withdraw in accordance with CPLR 321 (b) (2) renders the Support Magistrate’s finding of default improper … . Matter of Gonzalez v Bebee, 2019 NY Slip Op 08027, Fourth Dept 11-8-19

 

FAMILY COURT SHOULD NOT HAVE DELEGATED AUTHORITY TO FATHER CONCERNING VISITATION AND SHOULD NOT HAVE INVOLVED MOTHER’S BOYFRIEND IN KEEPING FATHER INFORMED ABOUT MOTHER’S HEALTH (THIRD DEPT).

The Third Department, modifying Family Court, determined Family Court should not have delegated authority to father to control some aspects of visitation, and should not have involved mother’s boyfriend, a non-party, in keeping father informed about mother’s medical or mental issues:

The court’s authority to set visitation cannot be delegated to a party … . We agree that the father can choose to temporarily suspend visitation while the mother is hospitalized for a mental health condition. However, Family Court went too far in giving the father — who is not a doctor or otherwise trained in recognizing and treating mental health conditions — that same authority in the vague situations where the mother is “decompensating or otherwise having an issue with her bipolar condition,” or permitting him to require supervision of visitation in the aftermath of those situations without further court intervention. We have no doubt that if the father believes or is informed that the mother is unstable, he will seek court permission to withhold or limit visits to protect the child … . The court also erred in directing the mother’s boyfriend — a nonparty, over whom the court had not obtained jurisdiction — to advise the father of any medical or mental issues that the mother may experience “as they are occurring or as soon as practicable thereafter” … . Matter of Aree RR. v John SS., 2019 NY Slip Op 07818, Third Dept 10-31-19

 

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HEARING NECESSARY TO DETERMINE WHETHER FAMILY COURT HAS SUBJECT MATTER JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING; JURISDICTION DEPENDS ON THE NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing was necessary on whether the court had subject matter jurisdiction for the petition seeking an order of protection:

… [T]he petitioner commenced this proceeding pursuant to Family Court Act article 8 seeking an order of protection against Cynthia J. Brock. The petitioner alleged, inter alia, that she and Brock were in an intimate relationship in that the petitioner was the paternal great grandmother of Brock’s child, and that she and Brock had “lived together in the past.” The petitioner further alleged that although her grandson and the child had moved out of her home a month earlier, Brock continued to routinely drop off the child at the petitioner’s home after Brock’s parental access time with the child, and used these opportunities to threaten, abuse, and annoy the petitioner. The petitioner also alleged that Brock telephoned the child on a daily basis, and verbally harassed the petitioner on the phone. Subsequently, Brock made an application to dismiss the petition for lack of subject matter jurisdiction on the ground that the relationship between her and the petitioner did not qualify as an “intimate relationship” within the meaning of Family Court Act § 812(1)(e). The Family Court granted the application and dismissed the petition.

The Family Court is a court of limited subject matter jurisdiction, and “cannot exercise powers beyond those granted to it by statute”… . Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” … . For purposes of Family Court Act article 8, “members of the same family or household” include, inter alia, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . Expressly excluded from the ambit of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” … . Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis … . Relevant factors include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship … . Matter of Hamrahi v Brock, 2019 NY Slip Op 07781, Second Dept 10-30-19

 

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TRANSCRIPT OF FAMILY COURT ACT 1028 HEARING SHOULD NOT HAVE BEEN USED AS A REPLACEMENT FOR AN ABUSE-NEGLECT FACT-FINDING HEARING BECAUSE THE PROOF REQUIREMENTS ARE DIFFERENT AND BECAUSE THERE WAS NO FINDING THAT THE WITNESS AT THE 1028 HEARING WAS UNAVAILABLE (SECOND DEPT).

The Second Department, reversing Family Court, determined the transcript of the Family Court Act 1028 hearing (seeking the quick return of a child temporarily removed pending a fact-finding hearing) should not have been used to replace the abuse/neglect fact-finding hearing because the proof requirements are different:

Family Court Act § 1028 permits a parent to apply for the return of a child who has been temporarily removed from the custody of the parent pending the fact-finding hearing on the issue of abuse or neglect … . “[A] section 1028 hearing is intended to give a parent an opportunity for a prompt reunion with the child, pending trial” … . In analyzing an application for a child’s return under Family Court Act § 1028, a court must engage in a test balancing the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal … . Section 1028 hearings, however, were not intended to replace fact-finding hearings, as the evidentiary standards are different. Family Court Act § 1046 provides that “only competent, material and relevant evidence may be admitted” at a fact-finding hearing, whereas evidence “[i]n a dispositional hearing and during all other stages of a proceeding under” Family Court Act article 10 need only be “material and relevant” … . A determination on an application pursuant to section 1028 “should not be taken as any indication of what ultimate determination should be made by the Family Court as to [a] petition alleging abuse and neglect” … . “At a fact-finding hearing, any determination that a child is an abused or neglected child must be based on a preponderance of the evidence” … .

CPLR 4517, which governs the admissibility of prior testimony in a civil action, is applicable here … , as the Family Court Act does not prescribe the issue of whether testimony from a prior hearing pursuant to Family Court Act article 10 may be admitted into evidence on the petitioner’s direct case in a fact-finding hearing. Pursuant to CPLR 4517(a)(3), prior trial testimony of a witness may be used by any party for any purpose against another party if the court finds that such witness is dead or otherwise unavailable. In this matter, the Family Court made no such finding.

Here, the Family Court should not have admitted into evidence at the fact-finding hearing transcripts of testimony from the hearing conducted pursuant to Family Court Act § 1028. As ACS now correctly concedes, the caseworker’s testimony at the prior hearing, which included hearsay statements, actually formed the basis of the court’s neglect finding at the subsequent fact-finding hearing. Matter of Louie L. V. (Virzhiniya T. V.), 2019 NY Slip Op 07592, Second Dept 10-23-19

 

MOTHER’S CUSTODY PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING; CUSTODY PETITION MAY BE HEARD JOINTLY WITH A PERMANENCY HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined than mother’s petition for custody should not have been dismissed without a hearing and noted that a custody petition may be heard jointly with a permanency hearing:

The appeal from the order dated September 27, 2018, has not been rendered academic by the permanency hearing order dated November 13, 2018, which apparently changed the permanency goal from working toward legal guardianship by the maternal grandmother to guardianship by a different relative. The order appealed from denied the mother’s petition for custody, and the issue of whether that order was proper will continue to affect the mother’s rights … .

Custody determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . Here, the record does not reveal the existence of circumstances that would bring this case within the narrow exception to the general right to a hearing … .

However, the petition for custody may be heard jointly with any permanency hearing held pursuant to Family Court Act article 10-A (see Family Ct Act § 1089-a[a] …). Matter of Barcene v Parrilla, 2019 NY Slip Op 07575, Second Dept 10-23-19

 

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