You are here: / Family Law
,

UNLESS THE PARTIES OPT OUT BY STIPULATION, A CHILD SUPPORT ORDER MAY BE MODIFIED WITHOUT A DEMONSTRATION OF A SUBSTANTIAL CHANGE IN CIRCUMSTANCES IF A PARTY’S INCOME INCREASES BY 15 % OR MORE AND THREE YEARS HAVE PASSED SINCE THE LAST ORDER (SECOND DEPT).

The Second Department noted that a court can modify child support without a substantial change of circumstances where a party’s income has increased by 15% or more and three years have passed since the last support order:

Section 451 of the Family Court Act allows a court to modify an order of child support, without requiring a party to allege or demonstrate a substantial change in circumstances, where (1) either party’s gross income has changed by 15% or more since the order was entered or modified, or (2) three years or more have passed since the order was entered, last modified, or adjusted (see Family Ct Act § 451[3][b][i]; Domestic Relations Law § 236[B][9][b][2][ii] …). The statutory grounds are not available in the event that the parties specifically opt out of that statutory provision in a validly executed stipulation (see Family Ct Act § 451[3][b]). In this case, the parties, in their stipulation, did not opt out of that statutory provision. Thus, the increase in the father’s gross income of more than 15% was sufficient, by itself, to permit the Family Court to modify his child support obligation … . .Matter of Regan v Regan, 2019 NY Slip Op 04702, Second Dept 6-12-19

 

COURTS HAVE THE DISCRETION TO DECLINE TO IMPUTE INCOME TO A PARENT WHO HAS VOLUNTARILY REDUCED HIS OR HER INCOME FOR A COMPELLING REASON, HERE, ALTHOUGH FATHER TOOK A LOWER PAYING JOB IN NORTH CAROLINA BECAUSE HIS WIFE TOOK A HIGHER PAYING JOB IN NORTH CAROLINA, FATHER’S CHILD SUPPORT OBLIGATION WAS NOT REDUCED, RATHER THE COURT IMPUTED A PORTION OF THE WIFE’S NEW HIGHER INCOME TO KEEP FATHER’S OBLIGATION AT THE SAME LEVEL (FOURTH DEPT).

The Fourth Department determined the court had the discretion to reduce father’s child support payments, even though father voluntarily took a lower paying job in North Carolina where his wife had found a job which increased her income by $30,000. The court’s conclusion it did not have the authority to reduce father’s child support obligation in this circumstance was itself deemed an abuse of discretion by the Fourth Department. However the Fourth Department didn’t change father’s obligation, rather it imputed some of the wife’s new higher income to the father:

… [C]ourts may decline to impute income when a parent has a voluntary reduction in income and a legitimate and reasonable basis for such a reduction … . Indeed, the general rule that “a parent who voluntarily quits a job will not be deemed without fault in losing such employment . . . should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason” … . …

We thus agree with the father that the court erred when it stated that it was not permitted to reduce the father’s child support obligation even if his decision to take a lower-paying job was reasonable. …

It was undisputed that the entire reason the father left his higher-paying job in New York was so that his wife could accept a higher-salaried position in North Carolina, which resulted in a net increase in the income of his new family unit. Inasmuch as the father’s voluntary decision to leave his lucrative position for a lesser-paying position “unquestionably improved [his overall] financial condition” … , we conclude that we may impute some portion of the wife’s higher salary to the father … . Matter of Montgomery v List, 2019 NY Slip Op 04560, Fourth Dept 6-7-19

 

,

THE QUALIFIED DOMESTIC RELATIONS ORDER (QDRO) OBTAINED BY STIPULATION OF SETTLEMENT MUST BE ENFORCED AS WRITTEN, BECAUSE NO PROVISION WAS MADE FOR GAINS OR LOSSES AFTER THE DIVORCE PROCEEDINGS COMMENCED, SUPREME COURT SHOULD NOT HAVE TRANSFERRED THE AGREED AMOUNT PLUS THE GAINS THAT HAD ACCRUED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the qualified domestic relations order (QDRO) obtained pursuant to a stipulation of settlement must be enforced as written. Because the stipulation made no provision for the transfer of gains which accrued after the divorce action started, Supreme Court erred by transferring the agreed amount plus the gains:

“A QDRO obtained pursuant to a [stipulation of settlement] can convey only those rights which the parties [agreed to] as a basis for the judgment’ ” … . Thus, “a court errs in granting a domestic relations order encompassing rights not provided in the underlying stipulation” … . A stipulation of settlement that is incorporated, but not merged, into the judgment of divorce ” is a contract subject to the principles of contract construction and interpretation’ ” … . If the stipulation of settlement is ” complete, clear, and unambiguous on its face[, it] must be enforced according to the plain meaning of its terms’ ” … . Here, the stipulation of settlement clearly and unambiguously made no provision for plaintiff to receive gains or losses on the amount that the stipulation of settlement specified would be transferred to her. Thus, plaintiff is not entitled to any gains on that amount that accrued after the divorce action commenced … . Reber v Reber, 2019 NY Slip Op 04557, Fourth Dept 6-7-19

 

,

THE EVIDENCE DID NOT SUPPORT THE FINDING THAT FATHER ABANDONED THE CHILD, THE PERMANENT NEGLECT FINDING, HOWEVER, WAS SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court determined the evidence did not support the finding that father abandoned the child, but the evidence did support a finding of permanent neglect. The criteria for permanent neglect, not summarized here, are described in some depth in the decision. The matter was sent back for a dispositional hearing or a waiver of the hearing:

“An order terminating parental rights may be entered upon the ground that a child’s parent abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court’ ” … . A child is deemed abandoned “if the parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency’ ” … . “Parents are presumed able to visit and communicate with their children and, although incarcerated parents may be unable to visit, they are still presumed able to communicate with their children absent proof to the contrary” … .

Here, the record establishes that the father—following up on a prior attempt to establish paternity that he had initially failed to adequately pursue—definitively established his paternity, while incarcerated, less than two months into the six-month period preceding the filing of the petition … . Thereafter, throughout the relevant period, the father initiated communications with the child’s caseworker; sent the caseworker at least four letters inquiring about the child and included a card and drawing for the child in at least one of those letters; and participated in a service plan review. We conclude that the father’s contacts “were not minimal, sporadic, or insubstantial” … . Matter of Jarrett P. (Jeremy P.), 2019 NY Slip Op 04609. Second Dept 6-7-19

 

, , ,

WHEN A PARTY’S ATTORNEY APPEARS THE PARTY IS NOT IN DEFAULT AND MAY THEREFORE APPEAL, FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY TO NONPARENTS ABSENT A HEARING DEMONSTRATING EXTRAORDINARY CIRCUMSTANCES AND THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department determined mother was not in default, because her attorney had appeared, and therefore mother can appeal the award of custody to the nonparent petitioners. The Fourth Department further determined Family Court should have held a hearing to determine whether extraordinary circumstances justified awarding custody to nonparents. The prior consent order of custody in favor of the nonparents does not demonstrate extraordinary circumstances:

“A parent’s right to be heard on a matter of child custody is fundamental and not to be disregarded absent a convincing showing of waiver’ ” … . Moreover, “[i]t 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” … and further establishes that an award of custody to the nonparent is in the best interests of the child … . “The burden of proving extraordinary circumstances rests on the nonparent, and the mere existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances”… . Inasmuch as the court erred in depriving the mother of custody without conducting the requisite evidentiary hearing … , we reverse and remit the matter to Family Court for a hearing on the custody petition. Matter of Hilton v Hilton, 2019 NY Slip Op 04572, Fourth Dept 6-7-19

 

THE 3RD DEPARTMENT, REVERSING FAMILY COURT, DETERMINED IT WAS IN THE BEST INTERESTS OF THE CHILD (BORN 2003) TO ORDER A DNA TEST FOR PETITIONER, IN PART BECAUSE NOT KNOWING WHO HER BIOLOGICAL FATHER IS IS A SOURCE OF TURMOIL (THIRD DEPT).

The Third Department, reversing Family Court, determined it was in the child’s best interests that petitioner undergo a paternity test:

In light of [the] evidence, as well as evidence revealed at the Lincoln hearing, we disagree with Family Court’s determination that equitable estoppel applies and find that it is in the child’s bests interests for DNA testing to occur. The record is clear that the child understands that William P. is her “legal” father and that there is a significant chance that petitioner is her biological father. Although testing could possibly impact the child’s relationship with William P., the record reveals that this relationship is already tumultuous and that some of this tumult may stem from the child’s uncertainty as to whether petitioner is in fact her biological father. Indeed, it is evident from the record that if the child learns that William P. is her biological father, this information would positively benefit their relationship. The record also reveals that communication between petitioner and the child has occurred, possibly in violation of a court order, but that communication nevertheless occurred and it has had a clear effect on the child that cannot be mitigated by refusing to order a DNA test. In fact, DNA testing can mitigate the turmoil in the child’s life that presently exists because she does not know who her biological father is. Although we are certainly mindful of the inherent inequities in allowing a DNA test to occur given the child’s age [born 2003], our analysis must turn exclusively on the best interests of the child … . To that end, we are also mindful that, if petitioner is found to be the child’s biological father, given his lengthy incarceration, the child will not be able to enjoy a “traditional” parent-child relationship with him. However, petitioner and the child would be able to communicate by way of letters, telephone contact and potentially through visitation at the prison. Matter of Stephen N. v Amanda O., 2019 NY Slip Op 04510, Third Dept 6-6-19

 

,

INSUFFICIENT EVIDENCE OF NEGLECT AND DERIVATIVE NEGLECT FOR FAILURE TO PROVIDE ADEQUATE FOOD, CLOTHING AND SHELTER; EVIDENCE SUPPORTED EDUCATIONAL NEGLECT AND DERIVATIVE NEGLECT, DESPITE MOTHER’S HOME-SCHOOLING EFFORTS, TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department reversed Family Court’s finding of neglect and derivative neglect for failure to provide adequate food, clothing and shelter, The evidence, i.e., the caseworker’s progress notes and the testimony of a police officer based upon a single visit, was deemed insufficient. However, the majority, over a two-justice dissent, found the evidence of educational neglect and derivative neglect sufficient. The older children were not attending school, but the college-educated mother was home-schooling them:

Although the mother’s living conditions were unsuitable, the record presents no basis for a conclusion that the children’s “physical, mental or emotional condition ha[d] been impaired or [wa]s in imminent danger of becoming impaired” as a result of their exposure to such environment (Family Court Act § 1012[f][i]). The officer’s testimony provided no information about the physical or mental condition of the children at the time of her visit, and petitioner did not introduce the results of the medical examination of the children conducted on the day when they were first removed from the home. …

The court found that the mother did not establish that she was qualified to teach, especially with respect to elementary-school-aged children. The mother admitted that she knew her educational plan was not approved by the Board of Education, yet, she never followed up with an approved individual home instruction plan as required by the Board of Education. The court found that the mother failed to show that her instruction was substantially equivalent to that in public school, and that the children were educated for at least as many hours as provided in public school … . The court further found that the mother’s use of college-level textbooks and testing the children using high school examination tests did not constitute appropriate education for elementary-school-aged children. We defer to these findings of the Family Court.  Matter of Puah B. (Autumn B.–Hemerd B.), 2019 NY Slip Op 04451, First Dept 6-6-19

 

INHERITED PROPERTY WHICH HAD BEEN COMMINGLED WITH MARITAL PROPERTY SHOULD HAVE BEEN TREATED AS MARITAL PROPERTY AND DIVIDED EQUALLY (SECOND DEPT).

The Second Department determined in this divorce action that the inherited property which was commingled with marital should have been considered marital property and divided equally:

The proceeds from an inheritance are separate property (see Domestic Relations Law § 236[B][1][d][1]…). However, where separate property has been commingled with marital property, for example in a joint bank account, there is a presumption that the commingled funds constitute marital property … . This presumption may be overcome by evidence that the funds were deposited into the joint account as a matter of convenience, without the intention of creating a beneficial interest … .

Here, by depositing inherited funds into accounts titled jointly with the defendant, the plaintiff created the presumption that the funds were marital … . Moreover, the plaintiff failed to rebut the presumption that the funds were transmuted into marital property, as she failed to establish that the funds were deposited into the parties’ joint accounts only as a matter of convenience without the intention of creating a beneficial interest … . Candea v Candea, 2019 NY Slip Op 04349, Second Dept 6-5-10

 

, , ,

ATTORNEY FOR THE CHILD CAN APPEAL A CHANGE OF CUSTODY TO WHICH THE CHILD IS OPPOSED, THE CHILD IS AGGRIEVED FOR APPELLATE PURPOSES, FAMILY COURT SHOULD NOT HAVE HELD A FULL CUSTODY HEARING WITHOUT FIRST ASSESSING THE ALLEGATIONS OF A CHANGE IN CIRCUMSTANCES, AN APPELLATE COURT CAN TAKE JUDICIAL NOTICE OF PRIOR MODIFICATION PETITIONS, AND FAMILY COURT MUST GIVE DUE CONSIDERATION TO THE CHILD’S WISHES (SECOND DEPT).

The Second Department, reversing Family Court, determined, in a full-fledged opinion by Justice Scheinkman, that mother’s petition for a change in custody should not have been granted. The opinion is too comprehensive to be fairly summarized here. Of particular interest is the Second Department’s conclusion that Family Court should have not have held a full custody hearing without first determining whether the allegations warranted it. The Second Department took judicial notice of two prior petitions for modification which were dismissed, the last petition being very close in time to the instant petition.  The opinion is well worth reading in its entirety. It addresses several substantive issues and distinguishes some 4th Department authority. The Second Department summarized the issues and holdings as follows:

This appeal raises several important issues pertinent to child custody determinations. We conclude that: (a) the attorney for the child has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child; (b) the child is aggrieved, for appellate purposes, by an order determining custody; (c) the Family Court should not have held a full custody hearing without first determining whether the mother had alleged and established a sufficient change in circumstances to warrant an inquiry into whether the child’s best interests were served by the existing custodial arrangement; and (d) the Family Court erred in failing to give due consideration to the expressed preferences of the child, who is a teenager. Matter of Newton v McFarlane, 2019 NY Slip Op 04386, Second Dept 6-5-19

 

,

THERE WAS NO SHOWING THAT THE DEPARTMENT OF SOCIAL SERVICE’S (DSS’S) VIOLATION OF A COURT ORDER LIMITING THE CHILD’S VISITATION WITH STEPMOTHER PREJUDICED THE CHILD’S RIGHTS, THEREFORE FAMILY COURT SHOULD NOT HAVE HELD DSS IN CONTEMPT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined that the Department of Social Services (DSS) should not have been held in contempt for violation of an order limiting the child’s visitation with the stepmother. DSS acknowledged it was aware of the order and acknowledged violating it. But there was no showing of prejudice to the child’s rights:

“A party seeking a finding of civil contempt based upon the violation of a court order must establish by clear and convincing evidence that the party charged with contempt had actual knowledge of a lawful, clear and unequivocal order, that the charged party disobeyed that order, and that this conduct prejudiced the opposing party’s rights” … . DSS does not dispute that it was aware of the court’s order limiting visitation with the stepmother, nor does it dispute that it did not follow that order, thereby establishing the first two elements for a civil contempt finding. Notably, however, DSS contacted the court immediately after receiving the order to advise that the stepmother had been certified as a foster parent and that the child was residing [*3]with her in that capacity. The AFC’s petition, filed shortly thereafter, alleged that DSS had violated the order and sought to have the child placed with the foster parents, but failed to allege or present evidence establishing, by clear and convincing evidence, that DSS’s failure to comply with the December 2016 order had “prejudiced the [child’s] rights” … . Matter of Nilesha RR. (Loretta RR.), 2019 NY Slip Op 04063, Third Dept 5-23-19

 

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