You are here: / Family Law
,

MOTHER’S APPEALS FROM EXPIRED PERMANENCY HEARING ORDERS (RE: CHILDREN’S PLACEMENT IN FOSTER CARE) WERE PROPERLY DISMISSED AS MOOT, TWO COMPREHENSIVE DISSENTING OPINIONS (THREE DISSENTING JUDGES) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two comprehensive dissenting opinions (three judges), determined the Appellate Division had properly dismissed mother’s appeals of expired permanency hearing orders (re: children’s placement in foster care) as moot, and properly declined to hear the appeals under an exception to the mootness doctrine:

Generally, ” ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment’ ” … . Here, the Appellate Division properly determined that the mother’s appeals are moot. At the time the Appellate Division entered its decisions, both permanency hearing orders were “superseded by subsequent permanency hearing orders, which continued the child’s placement in foster care” … . * * *

… [T]he Appellate Division did not abuse its discretion in determining that the issues raised below were “not sufficiently substantial or novel to warrant an exercise of [its] exceptional discretion to retain the appeal despite mootness” … . Matter of Joshua J. (Tameka J.), 2025 NY Slip Op 03010, CtApp 5-20-25

Practice Point: Consult this opinion for concise explanations of the appellate mootness doctrine and the application of an exception to the mootness doctrine.

 

,

FATHER’S PETITIONS FOR A MODIFICATION OF CUSTODY RAISED FACTUAL QUESTIONS REQUIRING A HEARING; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court and remitting the case for a hearing, determined father’s petitions for a modification of custody should not have been dismissed without a hearing:

… Family Court improperly dismissed, without a hearing, the father’s amended modification petition and violation petition. Contrary to the court’s determination, the father’s assertions, which were supported by the requisite threshold evidentiary showing, demonstrated factual issues so as to require a hearing on the issue of whether the existing parental access arrangement continued to serve the child’s best interests … . Among other things, the father sufficiently alleged that since the custody order was issued, he has achieved seven years of sobriety. Moreover, the father sufficiently alleged that the mother made a statement, which she does not deny making, with the intent or effect of estranging the child from, or creating resentment towards, the father in violation of the custody order. The issue of whether the intent or subsequent effect of the statement constituted a violation of the custody order should have been resolved at a hearing … . Matter of Sanna v Delong, 2025 NY Slip Op 02922, Second Dept 5-14-25

Practice Point: Once again a Family Court ruling is reversed because a hearing was not held. Here, in petitions for a modification of custody, father cited his years of sobriety and a statement attributed to mother that she intended to estrange the child from father. That was enough to warrant a hearing on the petitions.

 

, ,

THE EIGHT-AND-A-HALF-MONTH DELAY BETWEEN THE JUVENILE’S ARREST AND THE FILING OF THE JUVENILE DELINQUENCY PETITION DEPRIVED THE JUVENILE OF DUE PROCESS OF LAW (SECOND DEPT).

The Second Department, reversing the order of disposition in this juvenile delinquency proceeding, determined the juvenile, Adonis J W, was deprived of his constitutional right to due process by the eight-and-a-half-month delay between his arrest and the filing of the petition:

“The due process right to a speedy trial extends to respondents in juvenile delinquency proceedings” … . “An unreasonable delay in prosecuting a juvenile delinquency proceeding following a respondent’s arrest can constitute a violation of due process” … . “To determine whether a respondent’s due process rights were violated by a delay in filing, the court must engage in a balancing of factors, including the extent of the delay, the reason for the delay, the nature of the underlying charge, whether there has been an extended period of pretrial incarceration, and whether there is any indication of prejudice to the defense resulting from the delay” … . “When applying this balancing test, ‘courts must remain acutely cognizant of the goals, character and unique nature of juvenile proceedings'” … . “‘[T]he central goal of any juvenile proceeding—rehabilitation of the juvenile through prompt intervention and treatment—can seem trivialized when a presentment agency delays the filing of a petition'” … .

Here, while the charges were serious and Adonis J. W. did not demonstrate any actual prejudice to his defense attributable to the delay in filing the petition, the presentment agency failed to establish a legitimate reason for the delay. Additionally, the ultimate goal of promptly treating and rehabilitating Adonis J. W. was not furthered by permitting a fact-finding hearing on the petition following the unjustified delay. Matter of Adonis J. W., 2025 NY Slip Op 02788, Second Dept 5-7-25

Practice Point: The constitutional speedy trial rights apply to juvenile delinquency proceedings.

 

,

IT IS PROPER TO MAKE PARTICIPATION IN COUNSELING A COMPONENT OF A PARENTAL ACCESS ORDER, BUT IT IS IMPROPER TO CONDITION A FUTURE APPLICATION FOR PARENTAL ACCESS ON PARTICIPATION IN COUNSELING (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined that the judge should not have conditioned any future application for parental access on father’s participation in counseling. It is proper to direct a party to participate in counseling as a component of a parental access order, but it is improper to make participation in counseling a prerequisite for a future parental access application:

“A court deciding a custody proceeding may properly direct a party to submit to counseling or treatment as a component of a [parental access] or custody order” … . “However, a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights” … , and/or “successfully complete treatment or therapy as a condition to any future application” … . While it was acceptable to direct the father to participate in therapeutic services, so much of the order appealed from as, in effect, conditioned any future expansion of the father’s parental access with the children upon his participation in therapeutic services, leading to his understanding of the reasons for neglect findings entered against him … , and progress in his therapeutic visitation with the children, was improper … . Accordingly, we modify the order so as to eliminate those conditions. Matter of Badalyan v Antaplian, 2025 NY Slip Op 02769, Second Dept 5-7-25

Practice Point: This is a common appellate issue in Family Law. Counseling is an appropriate component of a parental access order, but future applications for parental access can not be conditioned upon participation in counseling.

 

, ,

ALTHOUGH FATHER IS INCARCERATED FOR ASSAULTING MOTHER WHEN SHE WAS SEVEN MONTHS PREGNANT, FATHER IS ENTITLED TO A HEARING ON WHETHER VISITATION WITH THE CHILD, WHICH NEED NOT INCLUDE CONTACT VISITATION, IS IN THE BEST INTERESTS OF THE CHILD; IT IS THE MOTHER’S BURDEN TO DEMONSTRATE VISITATION WOULD BE HARMFUL (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the incarcerated father was entitled to a hearing on whether visitation would be in the best interests of the child. Father was convicted of assaulting mother when mother was seven months pregnant. Family Court had granted mother’s summary judgment motion precluding father’s contact until the child turns 18. The Third Department found that summary judgment in the absence of a hearing was inappropriate:

… [W]e agree with the father’s contention that a hearing was required regarding the issue of visitation. Plainly stated, we do not find that, given the specific circumstances of this case, denying the father any contact with the child until the child’s 18th birthday was appropriate on a summary judgment motion … . This is especially so given that “visitation . . . need not always include contact visitation at the prison” … . As such, the father is entitled to a hearing to determine what, if any, visitation is in the best interests of the child. By way of reminder, at this hearing, it is not the father’s burden to demonstrate that visitation is in the child’s best interests, but rather it is the mother, as the party opposing visitation, who has the burden of demonstrating, by a preponderance of the evidence, “that visitation with [the father] would, under all of the circumstances, be harmful to the child[‘s] welfare or contrary to [her] best interests” … . This includes a consideration of whether updates, photographs and/or letters may be appropriate and in the best interests of the child … . Matter of Jaime T. v Ryan U., 2025 NY Slip Op 02638, Third Dept 5-1-25

Practice Point: Once again it is Family Court’s failure to hold a hearing which results in reversal. Here the incarcerated father is entitled to a hearing on whether visitation, which need not include contact visitation, would be in the best interests of the child. At the hearing, it is mother’s burden to demonstration visitation would be harmful to the child.

 

, ,

WHETHER FAMILY COURT HAS SUBJECT MATTER JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDS ON WHETHER THERE EXISTS AN “INTIMATE RELATIONSHIP” BETWEEN THE CHILD AND THE RESPONDENT, THE PARAMOUR OF PETITIONER’S FORMER HUSBAND; BEFORE THE COURT CAN RULE ON THE JURISDICTION ISSUE A HEARING TO DETERMINE WHETHER THERE IS AN “INTIMATE RELATIONSHIP” IS REQUIRED; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have held a hearing before ruling it did not have subject matter jurisdiction in this family offense proceeding. The proceeding was against respondent, the paramour of petitioner’s former husband. Whether Family Court has jurisdiction depends on whether the respondent is or has been in an “intimate relationship” with petitioner’s child:

“Beyond expressly excluding from the definition of ‘intimate relationship’ a ‘casual acquaintance’ and ‘ordinary fraternization between two individuals in business or social contexts'” … , “the [L]egislature left it to the courts to determine, on a case-by-case basis, what qualifies as an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e)” … . The factors that a court may consider while making such a determination are “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” … . “[T]he determination as to whether persons are or have been in an ‘intimate relationship’ within the meaning of Family Court Act § 812(1)(e) is a fact-specific determination which may require a hearing” … .

Here, in light of the parties’ conflicting allegations as to whether there was an “intimate relationship” between the child and the respondent within the meaning of Family Court Act § 812(1)(e), the Family Court, prior to determining whether it had subject matter jurisdiction, should have conducted a hearing on that issue … . Matter of De Phillips v Perez, 2025 NY Slip Op 02588, Second Dept 4-30-25

Practice Point: Family Court can have subject matter jurisdiction over a family offense petition against a person who is not a family member but has an “intimate relationship” with the child. Here Family Court should not have found it did not have subject matter jurisdiction without first holding a hearing to determine whether there was an “intimate relationship” between the respondent and petitioner’s child.​

 

,

GRANDFATHER DEMONSTRATED “EXTRAORDINARY CIRCUMSTANCES” AFFORDING HIM STANDING TO PETITION FOR CUSTODY OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the maternal grandfather demonstrated extraordinary circumstances and therefore had standing to seek custody of the child. The matter was remitted for a custody award based on the best interests of the child:

“Pursuant to Domestic Relations Law § 72(2)(a), a grandparent has standing to seek custody of a child where the grandparent demonstrates the existence of extraordinary circumstances, such as ‘surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time,’ ‘or other like extraordinary circumstances'” … . An “extended disruption of custody” between the child and the parent “shall constitute an extraordinary circumstance” … . “The statute defines ‘extended disruption of custody’ as including, but not limited to, ‘a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents'” … . “However, the statute does not preclude a court from finding the existence of extraordinary circumstances even if the prolonged separation lasted less than 24 months” … . “Moreover, lack of contact is not a separate element under th[e] statute, ‘[r]ather, the quality and quantity of contact between the parent and child are simply factors to be considered in the context of the totality of the circumstances when determining whether the parent voluntarily relinquished care and control of the child, and whether the child actually resided with the grandparents for the required “prolonged” period of time'” … . “‘Inasmuch as the Family Court is in the best position to evaluate the credibility, temperament, and sincerity of the parties, its determination should be set aside only if it lacks a sound and substantial basis in the record'” … .

The evidence at the hearing established that, even though the father had regular contact and parental access with the child, the maternal grandparents have taken care of the child for most of her life and provided her with stability. Additionally, the father allowed the mother and the maternal grandparents to assume control over, and responsibility for the care of, the child while the father assumed the role of a noncustodial parent, the child has developed a close relationship with her half-siblings and extended family in New York, and the child expressed a desire to continue residing with the maternal grandfather … . Matter of Clifton C. v Tory P. R., 2025 NY Slip Op 02585, Second Dept 4-30-25

Practice Point: Here the maternal grandparents had cared for the child for most of her life and father had assumed the role of a noncustodial parent. These and other factors rose to the level of “extraordinary circumstances” affording grandfather standing to petition for custody.

 

, , ,

FAMILY COURT, AFTER A NONJURY TRIAL, AWARDED SOLE CUSTODY TO FATHER WHO RESIDES IN FLORIDA; THE CHILDREN APPEALED; THE SECOND DEPARTMENT REVERSED AND AWARDED SOLE CUSTODY TO MOTHER, IN PART BECAUSE FAMILY COURT DID NOT CONSIDER THE WISHES OF THE CHILDREN AGES 12 AND 15 (SECOND DEPT).

The Second Department, in an appeal by the children, reversing Family Court’s order issued after a nonjury trial, determined the record did not support the award of sole custody to plaintiff father who resides in Florida and who indicated during the proceedings he was not seeking residential custody of the children. The Second Department awarded sole custody to defendant mother:

“The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child” … . “In determining an initial petition for child custody, the totality of the circumstances, includes, but is not limited to, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires” … . “Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court’s findings in this regard” … . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record” … .

Here, the Supreme Court’s determination to award sole legal and residential custody of the children to the plaintiff lacks a sound and substantial basis in the record. The plaintiff, who resides in Florida, represented during the proceedings that he was not seeking residential custody of the children. Moreover, while strict application of the factors relevant to relocation petitions … is not required in the context of an initial custody determination, the record does not indicate the court fully considered the impact of moving the children away from the defendant, and the only home they have known, to live with the plaintiff in Florida … . In addition, under the circumstances presented, the court failed to give sufficient weight to the expressed preference of the children, who were 12 and 15 years old, respectively, as of the conclusion of the trial, to reside with the defendant … . Joseph P. A. v Martha A., 2025 NY Slip Op 02562, Second Dept 4-30-25

Practice Point: Here the appellate court reversed Family Court which had awarded sole custody to father after a nonjury trial. It appears that the main basis for the reversal was Family Court’s failure to consider the wishes of the children who were 12 and 15. The children appealed Family Court’s order.

 

, ,

MOTHER’S ALLEGATIONS OF CHANGES IN CIRCUMSTANCES WERE SUFFICIENT TO WARRANT A HEARING ON HER CUSTODY PETITION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s custody petition should not have been summarily dismissed without a hearing:

“A hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order” … . Rather, “[t]he petitioner must make a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody [and visitation] order should be modified” … . “In order to survive a motion to dismiss and warrant a hearing, a petition seeking to modify a prior order of custody and visitation must contain factual allegations of a change in circumstances warranting modification to ensure the best interests of the child” … . “When faced with such a motion, ‘the court must give the pleading a liberal construction, accept the facts alleged therein as true, accord the nonmoving party the benefit of every favorable inference, and determine only whether the facts fit within a cognizable legal theory’ ” … .

… The mother alleged that the father had repeatedly and consistently neglected to exercise his right to supervised visitation and had not seen or spoken with the children in over two years … .

… The mother further alleged that, subsequent to entry of the prior order, the older child newly disclosed that, in addition to the previously known sexual abuse to which he and the younger child had been subjected by their paternal uncle at the father’s home, the father too had sexually abused him.

… [T]he mother adequately alleged a change in circumstances based on information—which she received directly from child protective services personnel from the county where the father resides—that the father and his paramour had engaged in conduct that led to the removal of the father’s other children from his care … . Matter of Catherine M.C. v Matthew P.C., 2025 NY Slip Op 02480, Fourth Dept 4-25-25

Practice Point: The most common basis for a Family-Court reversal is the failure to hold a hearing.

 

, , , ,

THE MAJORITY CONCLUDED THE COURT SHOULD USE ITS AUTHORITY TO DISMISS THE JUVENILE DELINQUENCY PETITION IN THE INTEREST OF JUSTICE, AN EXTRAORDINARY REMEDY WHICH SHOULD BE EMPLOYED SPARINGLY, FACTORS EXPLAINED (THIRD DEPT).

The Third Department, over a concurring decision and an extensive dissent, determined the juvenile delinquency petition should be dismissed in the interest of justice. The concurrence argued the dismissal should be based upon ineffective assistance of counsel. The dissent argued this difficult situation was properly handled:

Although we are mindful that “[d]ismissal in the furtherance of justice is an extraordinary remedy that must be employed sparingly,” it is our opinion that this is one of “those rare cases where there [are] compelling factor[s] which clearly demonstrate[ ] that prosecution [resulted in an] injustice” .. . … [A]ttempted assault in the third degree, a class B misdemeanor, is not serious … . … [T]he DSS caseworker was not seriously injured. * * * … [A]t the time of the attempted assault, respondent was in DSS’ care and custody because her mother was deceased and her grandmother, who subsequently adopted respondent, ultimately surrendered her rights. Respondent has a reportedly low IQ and a history of mental illness which was so severe that Family Court ordered a capacity evaluation … . Indeed, respondent had been brought to the hospital emergency room based on what was legally designed to be a temporary Mental Hygiene Law § 9.41 hold. Respondent remained in what was essentially a lock and key detention in the hospital, mostly in the emergency room, under dubious circumstances for an outrageous period of six months.

… Respondent already had numerous strikes against her, not only her lack of a parent/guardian and her serious mental health challenges, but also a previous juvenile delinquency adjudication. This additional juvenile delinquency finding is a red flag that will undoubtedly hinder opportunities and could cause difficulty for respondent should she seek mental health assistance in the future. Simply put, respondent needs no additional baggage, especially not baggage stemming from a juvenile delinquency petition that was admittedly filed and continued because of the difficulty of placing her in a suitable setting … . Matter of A. WW., 2025 NY Slip Op 02377, Third Dept 4-24-25

Practice Point: Consult this decision for a detailed analysis of an appellate court’s authority under the Family Court Act to dismiss a juvenile delinquency petition “in the interest of justice.”

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy