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GRANDMOTHER’S APPEAL OF THE DENIAL OF VISITATION HEARD DESPITE THE FACT THAT GRANDMOTHER HAD BEEN GRANTED VISITATION WHILE THE APPEAL WAS PENDING; DISSENT ARGUED THE EXCEPTION TO THE MOOTNESS DOCTRINE SHOULD NOT HAVE BEEN APPLIED (FOURTH DEPT).

The Fourth Department affirmed Family Court’s denial of grandmother’s petition for custody and visitation and heard the appeal despite the fact that grandmother was subsequently granted visitation. The majority applied the exception to the mootness doctrine to hear the appeal. An extensive dissent argued the exception to the mootness doctrine did not apply and the appeal should have been dismissed:

We reject the grandmother’s contention that the court erred in denying her petition for custody and granting custody to the mother. “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’ ” … . Here, the grandmother failed to meet her burden of establishing that extraordinary circumstances exist to warrant an inquiry into whether an award of custody to the grandmother is in the best interests of the child … . In particular, we conclude that the grandmother failed to establish her claim that the mother suffered from unaddressed, serious mental health issues that would warrant a finding of extraordinary circumstances … .

Contrary to the grandmother’s further contention, we conclude that, as of the time that the order was entered, the record supports the court’s determination that it was in the best interests of the subject child to deny the grandmother visitation “in view of  grandmother’s failure to abide by court orders, the grandmother’s animosity toward the [mother], with whom the child[ now] reside[s], and the fact that the grandmother frequently engaged in acts that undermined the subject child[]’s relationship with” the mother … . It is well settled that “a court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” … , and we perceive no basis for disturbing the court’s determination here … . Matter of Smith v Ballam, 2019 NY Slip Op 07170, Fourth Dept 10-4-19

 

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IN DISMISSING FATHER’S PETITION AND GRANTING MOTHER’S MOTION TO TERMINATE HER CHILD SUPPORT, FAMILY COURT RELIED ON HEARSAY AND EVIDENCE NOT TESTED BY CROSS-EXAMINATION, MATTER SENT BACK FOR A HEARING ON FATHER’S PETITION TO MODIFY CHILD SUPPORT (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for modification of child support should not have been denied and mother’s motion to terminate her child support obligations should not have been granted based on hearsay and evidence not tested by cross-examination:

… [F]ather filed a petition to modify the child support order … . The father asserted, as a change of circumstance, that the child was living with him. The mother moved for summary judgment dismissing the father’s petition, and for termination of her child support obligation, on the ground of parental alienation, contending that the father had unjustifiably frustrated and interfered with her relationship with the child. * * *

The Family Court, in making its determination that the father alienated the child from the mother, improperly relied on inadmissible information that had been provided at court conferences in earlier proceedings before a different judge. The court also improperly relied on hearsay statements and conclusions by an expert, whose credibility was not tested by either party, from an earlier forensic evaluation, and on statements and conclusions by two therapists, whose opinions and credibility were not tested by either party, made at a conference before a different judge … .

Accordingly, we disagree with the Family Court’s determination to grant the mother’s motion for summary judgment and for termination of her child support obligation, we reinstate the father’s petition to modify the child support order … , and we remit the matter to the Family Court … for a hearing on that petition. Matter of McNichol v Reid, 2019 NY Slip Op 07073, Second Dept 10-2-19

 

FATHER’S SUSPENDED JAIL SENTENCE FOR FAILURE TO PAY CHILD SUPPORT ARREARS SHOULD NOT HAVE BEEN REVOKED WITHOUT PROVIDING FATHER THE OPPORTUNITY TO PRESENT EVIDENCE RE: HIS INABILITY TO PAY (THIRD DEPT).

The Third Department, reversing Family Court, determined father’s suspended jail sentence should not have been revoked without an inquiry into father’s inability to pay the child support arrears:

… [T]he Warren County Department of Social Services, acting on behalf of the mother, submitted a request for an order of commitment based upon the father’s failure to comply with the support order or pay the arrears. The father … filed a petition seeking modification of the support order based upon his ongoing medical issues. During a hearing on the modification petition, it was revealed that the father’s child support obligation had ended and that he was seeking an adjustment to pay the arrears until he could return to work. It was also disclosed that the proceedings on the order of commitment had been adjourned pending the father’s sale of certain real property. … When these proceedings resumed, the father indicated that he did not have a contract to sell the real property or any means to pay the child support arrears. Family Court adjourned the proceedings to enable the father to undergo surgery, but directed him to return to court with a certified check for the child support arrears in the amount of $12,467.57. When the father did not appear in court on the adjourned date, Family Court issued a warrant and an order of commitment directing respondent’s confinement in jail for 60 days. …

We agree with the father that Family Court erred in revoking the suspension of his jail sentence without first affording him the opportunity to present evidence on his inability to pay the arrears (see Family Ct Act § 433 [a] …). … [T]he record does not reflect that Family Court conducted the necessary evidentiary hearing or undertook a sufficient inquiry as to the father’s inability to pay the child support arrears. Matter of Eddy v Eddy, 2019 NY Slip Op 06825, Third Dept 9-26-19

 

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JUDGE DID NOT HAVE THE DISCRETION TO DENY PLAINTIFF’S MOTION FOR ARREARS AND COUNSEL FEES MADE AFTER THE JUDGMENT OF DIVORCE; ANY DISPUTE ABOUT THE AMOUNT MUST BE RESOLVED BY A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for leave to enter a money judgment for arrears and counsel fees should not have been denied. The motion for arrears was properly made after the judgment of divorce and any question of the amount owed should have been resolved by a hearing:

A party to a matrimonial action may make an application for a judgment directing the payment of arrears at any time prior to or subsequent to the entry of a judgment of divorce (see Domestic Relations Law § 244 … ). Here, the court did not have the discretion to deny the plaintiff’s application for leave to enter a money judgment since she established that arrears were due and unpaid … . Where, as here, there are triable issues of fact as to the amount of arrears, an evidentiary hearing should be held … . Furthermore, upon determining the amount of arrears owed, the court should have considered the plaintiff’s request for prejudgment interest … and an award of counsel fees … . Uttamchandani v Uttamchandani, 2019 NY Slip Op 06645, Second Dept 9-18-19

 

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FAMILY COURT FAILED TO COMPLY WITH THE FAMILY COURT ACT AND PENAL LAW REQUIREMENTS IN THIS JUVENILE DELINQUENCY PROCEEDING, PETITION DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court in this juvenile delinquency proceeding, determined the court failed to comply with the notice provisions and the plea allocution requirements of the Family Court Act, as well as the proof requirements of the Penal Law. It was alleged the appellant either recklessly or intentionally broke a window:

Although the Family Court, Ulster County, advised the appellant of her rights prior to accepting an admission, the court failed to obtain an allocution from a parent or a person legally responsible for the appellant with regard to their understanding of any rights the appellant may be waiving as a result of her admission (see Family Ct Act § 321.3[1] … ). The appellant appeared telephonically even though there is no provision under article 3 of the Family Court Act authorizing the appearance by telephone of a minor in a juvenile delinquency proceeding, and the only persons in court that day were the appellant’s attorney and the attorney representing the Ulster County Attorney’s Office. …

Since the provisions of Family Court Act § 321.3 may not be waived, and the record does not support the determination of the court that a “reasonable and substantial effort” was made to notify the appellant’s mother or guardian about the … proceeding … .

… [T]he plea allocution also failed to comport with the sufficiency requirements of Family Court Act § 321.3(1), which mandates that the court ascertain through allocution of the appellant that she “committed the act or acts to which [s]he is entering an admission” … . The appellant’s allocution to breaking a window failed to establish the elements of criminal mischief in the fourth degree under subdivision 3 of Penal Law § 145.00, which requires evidence that the appellant “[r]ecklessly damage[d] property of another person in an amount exceeding two hundred and fifty dollars” … The petition did not allege any monetary amount as to the cost of the damage to the window, and no evidence as to the value of the window was adduced at the proceeding … . In fact, the invoice attached to the petition indicates that the cost of replacing the window, including labor, totaled $225, an amount less than the requisite jurisdictional predicate.

Even if the petition was liberally construed to have charged the appellant with the intentional conduct subdivision of criminal mischief, Penal Law § 145.00(1), rather than the subdivision that was charged, which pertains to reckless conduct … , dismissal of the petition is warranted … . The appellant’s allocution to breaking the window failed to show that she intentionally broke the window … . Matter of P., 2019 NY Slip Op 06497, Second Dept 9-11-19

 

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BOTH PARENTS ACKNOWLEDGED A CHANGE IN THE CUSTODY ARRANGEMENT WAS NEEDED, FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION (SECOND DEPT). ​

The Second Department, reversing Family Court, determined mother’s petition for modification of the custody arrangement should not have been dismissed. The matter was remitted for a continued hearing:

… [A]ccepting the mother’s evidence as true and affording her the benefit of every favorable inference, the mother presented sufficient evidence to establish a prima facie case of showing a change of circumstances which might warrant modification of custody in the best interests of the children … . The mother testified at the hearing that the parties had orally agreed to alter the custody arrangement so as to have the children alternate between the parents’ homes every two weeks, instead of every week as provided in the January 2015 order. This testimony was consistent with the father’s statements in his answer. That both parents acknowledged that an adjustment to the original custody arrangement was needed, together with information derived from the in camera interviews and other evidence in the record that the weekly shifting between parental homes could be adversely impacting the children, was sufficient to warrant a full inquiry into what arrangement was in the children’s best interests. “In addition, while not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances” … . Matter of Morales v Goicochea, 2019 NY Slip Op 06494, Second Dept 9-11-19

 

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FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO DETERMINE PARENTAL ACCESS TO THE PARTIES AND SHOULD NOT HAVE MADE FINDINGS IN THE ABSENCE OF A HEARING (SECOND DEPT).

The Second Department, reversing and remitting the matter to Family Court, determined the court should not have delegated its authority to determine parental access to the parties and should not have made findings without a hearing:

A court may not delegate its authority to determine parental access to either a parent or a child … . While a child’s views are to be considered in determining custody or parental access, they are not determinative … . An access provision which is conditioned on the desires of the children tends to defeat the right of parental access  … . Here, the Family Court determined that it would not compel either child to visit with the mother. Because the order appealed from effectively conditions the mother’s parental access on the children’s wishes and leaves the determination as to whether there should be access at all to the children, it must be set aside … . The Family Court made its determination based only upon its review of the papers, the in camera interviews, and the colloquy with the unrepresented parties, which occurred in the absence of the attorney for the children. The court did not conduct a hearing, did not direct a forensic examination, and did not seek information from the clinicians involved in the lapsed therapeutic visits. Although there are indications in the record that the mother’s parenting skills may be less than ideal, and she may bear at least some responsibility for her estrangement from the children, the record before us is inadequate to support the Family Court’s refusal to order, at the least, the resumption of therapeutic visits. Furthermore, the court’s finding that the father had done all that he could to encourage the children to visit with the mother was based solely upon the in camera interviews and was not based on any sworn testimony, and the mother was not afforded the opportunity to challenge, either by her own evidence or through cross-examination, the father’s assertions. Matter of Mondschein v Mondschein, 2019 NY Slip Op 06395, Second Dept 8-28-19

 

APPELLANT, A COUSIN, WAS NOT THE FUNCTIONAL EQUIVALENT OF A PARENT AND WAS NOT, THEREFORE, A PROPER RESPONDENT IN THIS SEXUAL ABUSE/NEGLECT ARTICLE 10 PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined appellant was not the functional equivalent of a parent and therefore was not a proper respondent in this Family Court Act Article 10 sexual abuse/neglect proceeding:

We disagree with the Family Court’s determination that the appellant was a person legally responsible for Sabrina and Zulena within the meaning of the Family Court Act. The appellant was a cousin of the subject children who resided with them for a period of time in their grandmother’s apartment along with the children’s mother and father. The record demonstrates that numerous other adults and children resided in the apartment during the relevant time period, including the children’s aunt, uncle, and grandmother. Although Sabrina, who was about 13 to 15 years old during the relevant time period, testified generally that there were times when the appellant would supervise her, the testimony of other witnesses, including that of her mother, contradicted this aspect of her account. In this regard, Sabrina’s mother testified that she never made the appellant responsible for the children, and that she did not leave them alone with him, as there were always other caretakers present. Sabrina’s mother testified that Sabrina’s older sister was responsible for the children’s care on the occasions when she was at work or otherwise away from the home. In addition, the evidence at the hearing demonstrated that the children’s grandmother and other adults were present in the apartment during the time when Sabrina’s mother was at work. Although there was evidence that the appellant sometimes contributed money to the grandmother’s household, and that he had, on occasion, performed general household chores for the benefit of the entire family, these circumstances were outweighed by evidence that the appellant did not exercise control over the children’s environment in a manner commensurate with that of a parent … . Matter of Zulena G. (Regilio K.), 2019 NY Slip Op 06392, Second Dept 8-28-19

 

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WHETHER MOTHER VALIDLY WAIVED HER RIGHT TO COUNSEL WAS APPEALABLE BECAUSE THE ISSUE WAS CONTESTED BEFORE MOTHER DEFAULTED BY FAILING TO APPEAR, DESPITE THE FACT THAT MOTHER’S REQUEST TO REPRESENT HERSELF WAS GRANTED; MOTHER WAS ADEQUATELY INFORMED OF THE RIGHTS SHE WAS GIVING UP (FOURTH DEPT). ​

The Fourth Department, over two separate dissents, determined: (1) whether mother was adequately informed of the rights she was giving up by representing herself was appealable because the matter was contested before mother defaulted by failing to appear; (2) the fact mother was granted the right she requested (representing herself) did not preclude her appeal of the adequacy of her waiver of her right to an attorney; (3) mother was adequately informed of the rights she was giving up:

The mother contends … that Family Court erred in failing to ensure, in response to her request to proceed pro se, that her waiver of the right to counsel was knowing, intelligent, and voluntary. Initially, we conclude that the mother’s contention is reviewable on appeal from the orders … despite her default. CPLR 5511 provides, in relevant part, that “[a]n aggrieved party . . . may appeal from any appealable judgment or order except one entered upon the default of the aggrieved party.” Thus, in general, “[n]o appeal lies from an order [or judgment] entered upon an aggrieved party’s default”… . Nevertheless, “notwithstanding the prohibition set forth in CPLR 5511 against an appeal from an order or judgment entered upon the default of the appealing party, the appeal from [such an] order [or judgment] brings up for review those matters which were the subject of contest’ before the [trial court]” … .

… [W]e conclude that “[t]he issue of the mother’s waiver of the right to counsel was the subject of contest before . . . [the c]ourt and, therefore, may be reviewed by this Court …”. * * *

… [M]other was repeatedly advised by the court of the right to counsel, including assigned counsel, and was represented by several attorneys throughout the proceedings. Yet she discharged or consented to the withdrawal of each of those attorneys for her own reasons and ultimately opted to represent herself, even after she was advised that proceeding without the assistance of trained and qualified counsel might be difficult or detrimental and that she would be required to follow the rules of evidence. The mother also demonstrated the ability and preparedness to proceed pro se by, among other things, issuing subpoenas to various witnesses and filing exhibits. The record thus establishes that the court’s inquiry was sufficient to ensure that the mother’s waiver of the right to counsel was knowing, intelligent, and voluntary … . Matter of DiNunzio v Zylinski, 2019 NY Slip Op 06337, Fourth Dept 8-22-19

 

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DEFINITION OF ‘PARENT’ IS THE SAME FOR PARENTAL ACCESS AND CUSTODY; JUDICIAL ESTOPPEL AND COLLATERAL ESTOPPEL DOCTRINES PRECLUDED SUPREME COURT’S FINDING THAT FATHER DID NOT HAVE STANDING IN THE CUSTODY MATTER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the doctrines of judicial estoppel and collateral estoppel precluded Family Court from finding father did not have standing to seek custody of a child. Father had previously been deemed a “parent” in the context of parental access. The definition of “parent” is the same in the context of custody:

In the prior appeal, this Court expressly stated that the father had standing to proceed as Isabella’s parent under Domestic Relations Law § 70 based on the doctrine of judicial estoppel … . As the term “parent” has the same definition under Domestic Relations Law § 70 whether the party is seeking custody or parental access … , it is immaterial that our prior determination did not specifically mention custody when it concluded that the father had standing to seek parental access with Isabella. Since the mother is judicially estopped from arguing that the father is not Isabella’s parent under Domestic Relations Law § 70, the father was free to seek custody under Domestic Relations Law § 70 as Isabella’s “parent with coequal rights” to the mother … . Matter of Paese v Paese, 2019 NY Slip Op 06090, Second Dept 8-7-19

 

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