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A NEW HEARING ON FATHER’S PETITION TO RELOCATE IS REQUIRED BECAUSE THE COURT MAY HAVE PLACED TOO MUCH EMPHASIS ON THE CHILD’S ENROLLMENT IN A PARTICULAR SCHOOL AS THE BASIS FOR GRANTING THE PETITION (THIRD DEPT). ​

The Third Department, reversing Family Court, determined a new hearing on father’s relocation petition was required because the court may have put too much emphasis on the child’s enrollment in a particular school:

Family Court determined that it was in the best interests of the child to award the father physical custody of the child and to permit the child to relocate to New York City. In making this determination, we note that the court took into account the child’s relationship with the family members in each parties’ household, the child’s current school and Promise Academy, the parties’ relative fitness to provide a safe and healthy environment and the structure in each household to support the child’s educational needs. The court, however, conditioned such change of custody and relocation upon the child’s enrollment in Promise Academy for the 2017-2018 school year. In our view, by imposing such condition, the court erroneously elevated the child’s matriculation at Promise Academy from one factor to be considered in the best interests analysis to the sole dispositive factor. Inasmuch as no one factor is dispositive … , the order must be reversed and a new hearing to be conducted on the father’s modification petition within 20 days of this Court’s decision. Matter of Lionel PP. v Sherry QQ., 2019 NY Slip Op 02398, Third Dept 2-28-19

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DRAWN AN ADVERSE INFERENCE AGAINST FATHER BASED UPON FATHER’S FAILURE TO CALL HIS GIRLFRIEND AS A WITNESS WITHOUT FIRST INFORMING FATHER AND GIVING FATHER A CHANCE TO EXPLAIN, ERROR DEEMED HARMLESS HOWEVER (FOURTH DEPT).

The Fourth Department determined the judge should not have drawn an adverse inference against father for his failure to call his girlfriend as a witness without first informing father and giving father a chance to explain. The error was deemed harmless however:

“A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party” … . “The party seeking a missing witness inference has the initial burden of setting forth the basis for the request as soon as practicable . . . to[, inter alia,] avoid substantial possibilities of surprise” … . Here, in its written decision, “[t]he court sua sponte drew a negative inference based on the [father’s] failure to call [his girlfriend] as a witness, and failed to advise [him] that it intended to do so” … . Thus, the father “lacked the opportunity to explain [his] failure to call [his girlfriend] as a witness, or to discuss whether [his girlfriend] was even available to testify or under [his] control” … . We conclude, however, that the error did not affect the result  … . Matter of Liam M.J. (Cyril M.J.), 2019 NY Slip Op 02207, Fourth Dept 3-22-19

 

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FAMILY COURT DID NOT MAKE THE REQUIRED FINDINGS OF FACT IN THIS FAMILY OFFENSE, CUSTODY AND VISITATION CASE, MATTER REMITTED (FOURTH DEPT). ​

The Fourth Department, sending the matter back to Family Court, determined Family Court did not make the requisite findings of fact in this family offense, custody and visitation case:

… [W]e agree with the father that Family Court failed to adequately set forth its essential findings of fact (see CPLR 4213 [b]; Family Ct Act § 165 [a] …). …[T]he court failed to specify the family offense upon which the order of protection was predicated … . … [T]he court failed to “set forth its analysis of those factors that traditionally affect the best interests of a child, namely, the relative fitness of each party, each parent’s ability to provide for the emotional and intellectual development of the child, the ability to provide financially for the child, the quality of the home environment, the length of time and stability of prior custodial arrangements, [and] the need of a child to reside with siblings[, if any] . . . As a result, we are unable to review [the court’s] ultimate factual finding regarding each of those factors and the weight it placed upon each factor relative to the best interests of the child[ ]” … . Under the circumstances of these cases, we decline to exercise our discretion to make the requisite findings … . Matter of Benson v Smith, 2019 NY Slip Op 02221, Fourth Dept 3-22-19

 

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COURT SHOULD HAVE INQUIRED INTO FATHER’S ELIGIBILITY FOR ASSIGNED COUNSEL IN THE CONTEMPT PROCEEDINGS STEMMING FROM FATHER’S FAILURE TO PAY CHILD SUPPORT, FATHER WAS DEPRIVED OF HIS RIGHT TO COUNSEL, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, ordering a new hearing, determined father was deprived of is right to counsel in a contempt proceeding stemming from his failure to pay child support:

A respondent in a contempt proceeding before the Family Court “has the right to the assistance of counsel,” including “the right to have counsel assigned by the court” if “he or she is financially unable to obtain the same” (Family Ct Act § 262[a]). “Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel” … . “The deprivation of [a parent’s] fundamental right to counsel requires reversal, without regard to the merits of [his or] her position” … .

We agree with the father’s contention that he was deprived of his right to counsel. After the Support Magistrate adjourned the hearing for the express purpose of allowing the father to retain counsel, the father appeared at the next hearing date without counsel and informed the Support Magistrate that he could not afford to hire an attorney because he had lost his job following the last court date. The Support Magistrate should have inquired into the father’s current financial circumstances, including his expenses, to determine whether he had become eligible for assigned counsel … . After the matter was referred to the Family Court, the court should have inquired into the father’s financial circumstances, including his expenses, to determine whether he was eligible for assigned counsel in light of his contention that he could not afford to retain an attorney because he was unemployed … . Although the court later assigned the father an attorney, the court failed to provide the “attorney a reasonable opportunity to appear,” as the court assigned the attorney midway through the final court appearance, after the fact-finding hearing had concluded, after the Support Magistrate had made its credibility and factual findings, and after the court had decided to incarcerate the father … . Indeed, the court denied the assigned attorney’s request for an adjournment … . Matter of Worsdale v Holowchak, 2019 NY Slip Op 02104, Second Dept 3-20-19

 

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NONPARTY SUBPOENA PROPERLY QUASHED BECAUSE IT DID NOT PROVIDE THE REASONS FOR THE REQUESTED DISCLOSURE, QUESTIONS OF FACT WHETHER STIPULATION OF SETTLEMENT WAS UNCONSCIONABLE AND WHETHER PLAINTIFF EXECUTED THE STIPULATION UNDER DURESS (SECOND DEPT).

The Second Department, modifying Supreme Court in this divorce action, determined: (1) the subpoena for a nonparty was defective because the reasons for the disclosure were not provided; (2) the stipulation of settlement was not demonstrated to be unconscionable as a matter of law; and (3) there were questions of fact whether the stipulation was signed under duress:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty where the matter sought is material and necessary to the prosecution or defense of an action … . A party seeking discovery from a nonparty must apprise the nonparty of the circumstances or reasons requiring disclosure (see CPLR 3101[a][4] … ). Here, we disagree with the Supreme Court’s determination that the testimony sought from the nonparty was utterly irrelevant [the nonparty was a women with whom defendant allegedly had an affair]. However, we agree with the court’s determination that the subpoenas were defective since, among other things, the defendant failed to provide the nonparty with the required explanation of the circumstances or reasons requiring disclosure either on the face of the subpoenas or in any accompanying material (see CPLR 3101[a][4] … ). Accordingly, we agree with the court’s granting of the nonparty’s motion to quash the subpoenas. Gandham v Gandham, 2019 NY Slip Op 02069, Second Dept 3-20-19

 

PUBLIC POLICY PRECLUDED RECOVERY OF CHILD SUPPORT OVERPAYMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that public policy precluded plaintiff from recovering child support overpayments:

“There is strong public policy in this state, which the [Child Support Standards Act] did not alter, against restitution or recoupment of the overpayment of child support” … . The rationale behind this policy is that child support payments are deemed to have been used to support the children, so “no funds exist from which one may recoup moneys so expended”… . “[R]ecoupment of child support payments is only appropriate under limited circumstances'” … .

The plaintiff failed to demonstrate the existence of any circumstances which counter this state’s strong public policy against reimbursement of child support overpayments … . The plaintiff could have requested a modification of his child support obligation in accordance with the stipulation, but failed to do so … . Fortgang v Fortgang, 2019 NY Slip Op 02068, Second Dept 3-20-19

 

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EVIDENCE NOT SUFFICIENT TO SUPPORT ‘INDICATED’ CHILD MALTREATMENT REPORT, DETERMINATION ANNULLED AND REPORT AMENDED TO ‘UNFOUNDED’ AND SEALED (FOURTH DEPT).

The Fourth Department determined the evidence of child maltreatment was insufficient and the “indicated” report maintained in the New York State Central Register of Child Abuse and Maltreatment should be amended to unfounded and sealed:

At the fair hearing, DSS had the burden of establishing by a fair preponderance of the evidence that petitioner maltreated the child by the use of excessive corporal punishment (see Social Services Law § 424-a [2] [d]), and that such corporal punishment impaired or was in imminent danger of impairing the child’s physical, mental, or emotional condition (see Social Services Law § 412 [2] [a]; Family Ct Act § 1012 [f] [i]). Impairment of mental or emotional condition is defined as “a state of substantially diminished psychological or intellectual functioning” (Family Ct Act § 1012 [h]). Physical impairment is defined as ” a state of substantially diminished physical growth, freedom from disease, and physical functioning’ ” … . …

Other than a general reference in DSS records that the child was “upset” by the incident, DSS did not present evidence that the incident physically, mentally, or emotionally impacted the 10-year-old child. The marks observed on the child’s back, i.e., the sole marks attributed to petitioner by a preponderance of the evidence, apparently resolved the day after petitioner struck him, and before the DSS case worker examined the child. Under the circumstances here, the evidence is insufficient to establish that the child suffered the requisite impairment of his physical, mental, or emotional well-being to support a finding of maltreatment. Thus, the determination that petitioner placed the child in imminent risk of physical or emotional impairment is not supported by substantial evidence, and we therefore annul the determination and grant the petition … . Matter of Jonathan L. v Poole, 2019 NY Slip Op 01908, Fourth Dept 3-15-19

 

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EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT WARRANTED A NEGLECT FINDING, FAMILY COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined that the evidence of excessive corporal punishment warranted a finding of neglect:

A party seeking to establish neglect must establish, by a preponderance of the evidence, ” first that [the] child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ ” … . Although a parent may use reasonable force to discipline his or her child to promote the child’s welfare … , the “infliction of excessive corporal punishment” constitutes neglect (Family Ct Act § 1012 [f] [i] [B]). Indeed, ” a single incident of excessive corporal punishment is sufficient to support a finding of neglect’ ” … .

Here, petitioner established by a preponderance of the evidence that the father neglected the child by inflicting excessive corporal punishment (see generally Family Ct Act § 1012 [f] [i] [B]). At the hearing, petitioner presented, among other things, witness testimony and medical records indicating that the child sustained a bruised left temple, a bruised eye, and a bloody and swollen nose after the father struck him … . Matter of Justin M.F. (Randall L.F.), 2019 NY Slip Op 01907, Fourth Dept 3-15-19

 

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CHILD’S INCOMPLETE TESTIMONY STRICKEN IN A FAMILY COURT ACT 1028 PROCEEDING MAY BE ADMITTED IN A FAMILY COURT ACT 1046 CHILD ABUSE PROCEEDING (FIRST DEPT).

The First Department determined that a child’s testimony stricken from a Family Court Act 1028 proceeding can be admitted in a Family Court Act 1046 (a)(vi) child abuse proceeding:

On the merits, this appeal raises the issue of whether a child’s testimony stricken from a hearing pursuant to Family Ct Act § 1028 may be considered in connection with a fact-finding hearing regarding abuse allegations, pursuant to Family Ct Act § 1046(a)(vi). We hold that it may be so used. Family Ct Act § 1046(a)(vi) sets forth, in relevant part, that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence,” when corroborated, and “[t]he testimony of the child shall not be necessary to make a fact-finding of abuse or neglect.” Here, then 14-year-old Ashley refused to continue with her testimony at the FCA 1028 hearing regarding her allegations of sexual abuse after she already had been cross-examined for three days by respondent’s counsel. According to a letter from Ashley’s therapist submitted to the court, it would be detrimental for the child to return to testify. We agree with the Family Court that it could rely upon Ashley’s incomplete testimony for the purposes of the subsequent fact-finding hearing, subject to a statutory requirement of corroboration. The use of Ashley’s incomplete testimony was in accordance with the legislative intent of Family Ct Act § 1046(a)(vi) to address “the reluctance or inability of victims to testify” … . Matter of Jaylyn Z. (Jesus O.), 2019 NY Slip Op 01846, First Dept 3-14-19

 

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THERE IS NO APPEAL FROM A DEFAULT STEMMING FROM FAILURE TO APPEAR, MUST MOVE TO VACATE THE DEFAULT (THIRD DEPT).

The Third Department, dismissing the appeal, explained that where a party in default for failing to appear wishes to appeal, the party must first move to vacate the default:

Respondent appeared by telephone before the Support Magistrate for arraignment, an appearance and a hearing, following which the Support Magistrate concluded that respondent had willfully violated the support order and recommended that he be incarcerated. The matter was referred to Family Court for confirmation. Respondent requested permission to give electronic testimony. Family Court denied that application both in writing and orally and directed, on the record, that respondent must appear in person for the hearing. When respondent did not appear, the court conducted the hearing in his absence, found that he willfully violated the support order and committed him to jail for 180 days. Respondent appeals.

Family Court properly found respondent in default … . Although respondent’s counsel appeared and offered the explanation that respondent could not afford to travel to New York, the court had already heard and rejected that excuse in connection with respondent’s application to give electronic testimony and directed him to appear in person for the hearing. When respondent failed to do so, the court did not abuse its discretion by finding him in default  … . “[T]he proper procedure would be for [respondent] to move to vacate the default and, if said motion is denied, take an appeal from that order” … . Because no appeal lies from an order entered on default, we must dismiss this appeal … . Matter of Ulster County Support Collection Unit v Beke, 2019 NY Slip Op 01864, Third Dept 3-14-19

 

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