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ORDER OF PROTECTION ISSUED IN THE CRIMINAL PROCEEDING PROHIBITING CONTACT BETWEEN FATHER AND DAUGHTER SHOULD BE SUBJECT TO ANY SUBSEQUENT CUSTODY OR VISITATION ORDERS BY FAMILY OR SUPREME COURT (FOURTH DEPT).

The Fourth Department determined the order of protection prohibiting contact between father and daughter should be subject to orders of Family or Supreme Court:

Here, the order of protection issued in this criminal proceeding bars all contact between defendant and his child, and cannot be modified by a subsequent visitation order of Family Court or Supreme Court unless it is first modified or vacated by the criminal court … . We agree with defendant that, under the circumstances of this case, the order of protection should be subject to any subsequent orders of custody and visitation, and we therefore modify the judgment by amending the order of protection in favor of defendant’s biological daughter so that contact will be allowed if ordered by Family or Supreme Court in a custody, visitation or child abuse or neglect proceeding … . People v Smart, 2019 NY Slip Op 01043, Fourth Dept 2-8-19

 

CHILD SUPPORT STANDARDS ACT (CSSA) WAS INCORRECTLY APPLIED TO INCOME ABOVE THE STATUTORY CAP (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that the court did not correctly apply the Child Support Standards Act (CSSA):

… [T]he court erred in applying the Child Support Standards Act (CSSA) to the combined parental income in excess of the statutory cap … . It is well settled that “blind application of the statutory formula to [combined parental income] over [the statutory cap], without any express findings or record evidence of the [child’s] actual needs, constitutes an abdication of judicial responsibility and renders meaningless the statutory provision setting a cap on strict application of the formula”… . Here, in awarding child support on income above the statutory cap, the court considered only the father’s financial situation. “[T]he court made no factual findings that the child[ ] [had] financial needs that would not be met unless child support were ordered to be paid out of parental income in excess of [the statutory cap],” and we conclude that, “even if the court had made such a finding, there is no evidence in the record to support it” … . Therefore, in the exercise of our discretion, we fix the father’s basic child support obligation on the basis of the combined parental CSSA income up to the cap amount … . Benedict v Benedict, 2019 NY Slip Op 01042, Fourth Dept 2-8-19

 

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FAMILY COURT ABUSED ITS DISCRETION BY DENYING THE APPLICATION FOR AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL IN THIS JUVENILE DELINQUENCY PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the court abused its discretion by denying the application for an adjournment in contemplation of dismissal in this juvenile delinquency proceeding:

… [T]he Family Court improvidently exercised its discretion in denying the appellant’s application pursuant to Family Court Act § 315.3 for an adjournment in contemplation of dismissal. This proceeding constituted the appellant’s first contact with the court system, he took responsibility for his actions, and the record demonstrates that he learned from his mistakes. During the pendency of the proceeding, the appellant readily complied with the supervision imposed by the court and his father’s supervision in the home, and he garnered praise from the Probation Department and school officials. Under the circumstances, including the appellant’s commendable academic and school attendance record, his mentoring of fellow students at his school, and the minimal risk that he poses to the community, an adjournment in contemplation of dismissal was warranted … . Matter of Nijuel J., 2019 NY Slip Op 00876, Second Dept 2-6-19

 

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SUPPORT MAGISTRATE DID NOT HAVE JURISDICTION TO REDUCE FATHER’S CHILD SUPPORT BY DISTRIBUTING A TAX REFUND (FOURTH DEPT).

The Fourth Department determined the Support Magistrate did not have jurisdiction to reduce father’s child support by distributing a tax refund:

We agree with the mother, however, that the court erred in denying her … objection to that part of the Support Magistrate’s order that, in effect, distributed half of the parties’ tax refund to the father by reducing his child support obligation by that amount. We have previously stated that “the jurisdiction of Family Court is generally limited to matters pertaining to child support and custody . . . , and tax deductions or exemptions are not an element of support”… . “[T]he father’s entitlement to claim the child[ren] as [] dependent[s] for income tax purposes is not an element of support set forth in Family Court Act article 4, and thus the court lacks jurisdiction” to distribute the parties’ tax refund … . Therefore, … we remit the matter to Family Court to recalculate the father’s child support obligation without regard to the parties’ income tax refund. Matter of Bashir v Brunner, 2019 NY Slip Op 00746, Fourth Dept 2-1-19

 

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A NEGATIVE INFERENCE SHOULD NOT HAVE BEEN DRAWN BASED UPON MOTHER’S FAILURE TO TESTIFY, SHE HAD NO FIRST-HAND KNOWLEDGE OF THE FACTS UNDERLYING FATHER’S PETITION TO MODIFY VISITATION, FATHER DID NOT DEMONSTRATE A CHANGE IN CIRCUMSTANCES AND DID NOT DEMONSTRATE MODIFICATION WOULD BE IN THE BEST INTERESTS OF THE CHILDREN, JUDGE DID NOT MAKE THE REQUIRED FACTUAL FINDINGS, FATHER’S PETITION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father did not demonstrate a change in circumstances that warranted visitation in his home, supervised by his new wife. The modified visitation was not demonstrated to be in the best interests of the children. The existing visitation arrangement, supervised by grandmother, was long-standing and was working well. In addition, the Fourth Department held that the fact that mother did not testify should not have been the basis of a negative inference. Mother had no knowledge of the circumstances underlying father’s petition:

Family Court erred in drawing a negative inference against [mother] based on her failure to testify at the hearing. The mother had no relevant testimony to offer inasmuch as she had no personal knowledge of the allegations in the modification petition … . Thus, we conclude that a negative inference against the mother was unwarranted because she did not “withhold[] evidence in [her] possession or control that would be likely to support [her] version of the case” … . …

Although the court correctly identified in its decision the applicable standard for modification of an existing custody and visitation order and referenced several circumstances that generally may support a court’s finding of a sufficient change in circumstances, the court failed to make express findings relative to the change in circumstances alleged by the father in his petition. Notwithstanding that failure, “we have the authority to review the record to ascertain whether the requisite change in circumstances existed’ ” … . …

Although the father’s marriage, new home, and diagnosis with sleep apnea are changes that have occurred since the time of the stipulation, those changes to the father’s personal circumstances do not ” reflect[] a real need for change to ensure the best interest[s] of the child[ren]’ ” … . …

… [T]there is no sound and substantial basis in the record to support the court’s determination that the children’s best interests warranted replacing the visitation supervisor, their grandmother, with the father’s new wife and permitting the father to select any location for his visits with the children … . Matter of William F.G. v Lisa M.B., 2019 NY Slip Op 00774, Fourth Dept 2-1-19

 

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FAMILY COURT SHOULD NOT HAVE LET A PARTY DETERMINE THE AMOUNT OF SUPERVISED CONTACT MOTHER IS TO BE ALLOWED, AND FAMILY COURT SHOULD NOT HAVE CONDITIONED FURTHER PETITIONS BY MOTHER ON PERMISSION FROM THE COURT (FOURTH DEPT).

The Fourth Department determined Family Court should not have delegated its authority to order the amount of supervised contact with the children mother is to be allowed and should not have conditioned further petitions by mother on permission from the court:

… [T]he court erred in granting her only so much supervised contact as was “deemed appropriate” by petitioners. The court is “required to determine the issue of visitation in accord with the best interests of the children and fashion a schedule that permits a noncustodial parent to have frequent and regular access” … . “In so doing, the court may not delegate its authority to make such decisions to a party” … , which the court did here by delegating to petitioners its authority to set a supervised visitation schedule. We therefore … remit the matter to Family Court to determine the supervised visitation schedule.

… [T]he court erred in ordering that any petition filed by the mother to modify or enforce the custody orders must have a judge’s permission to be scheduled. “Public policy mandates free access to the courts” … , and it is error to restrict such access without a finding that the restricted party “engaged in meritless, frivolous, or vexatious litigation, or . . . otherwise abused the judicial process” … . Here, it is undisputed that the mother had not commenced any frivolous proceedings. In the absence of such a finding, it was error for the court to restrict the mother’s access to the court … . Matter of Lakeya P. v Ajja M., 2019 NY Slip Op 00761, Fourth Dept 2-1-19

 

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THIS DIVORCE ACTION ON A GROUND NOT RAISED BY THE PARTIES (SECOND DEPT). ​

The Second Department determined Supreme Court should not have dismissed the complaint in this divorce action, sua sponte, on a ground not raised by the parties:

The Supreme Court should not have granted the defendant’s motion for summary judgment on a ground not raised in the defendant’s motion … . “[O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court”… . The plaintiff had no opportunity to address the issue regarding the allegedly defective summons, and this “lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process” … .

Since the Supreme Court did not consider the merits of the motion and cross motion, the matter must be remitted to the Supreme Court, Richmond County, for a determination of the motion and cross motion on the merits … . Patel v Sharma, 2019 NY Slip Op 00452, Second Dept 1-23-19

 

MOTHER’S APPLICATION FOR RETURN OF THE CHILD AFTER TEMPORARY REMOVAL OF THE CHILD IN THIS DERIVATIVE NEGLECT AND ABUSE PROCEEDING SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined that mother’s application for return of the child who had been temporarily removed from the home should not have been granted:

… [T]he Family Court’s determination granting the mother’s application for the return of the subject child lacked a sound and substantial basis in the record. At the hearing, the mother admitted to hitting Sincere G. with an extension cord, leaving welts on his skin, because he would not clean his room and she wanted to get “control” over him. Although the mother testified that she only hit Sincere G. on his arms and legs, photographs admitted into evidence at the hearing clearly show welts across his chest as well. Since that incident, and as of the time of the hearing, the mother had failed to sufficiently address the mental health issues that led to the incident … . Accordingly, we cannot agree that the return of the subject child to the mother’s custody, notwithstanding the conditions that were imposed, would not present an imminent risk to the child’s life or health. The mother’s application for the return of the child should have been denied, and we remit the matter to the Family Court, Kings County, for further proceedings on the petition. Pending those further proceedings, the subject child shall remain in the care and custody of the father, with supervised parental access to the mother, pursuant to the terms and conditions of an order of the Family Court … . Matter of Tatih E. (Keisha T.), 2019 NY Slip Op 00434, Second Dept 1-23-19

 

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PETITION WAS PROPERLY DISMISSED BECAUSE IT DID NOT DEMONSTRATE SUBJECT MATTER JURISDICTION ON ITS FACE, BUT BECAUSE THE MERITS WERE NOT ADDRESSED THE PETITION SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE (THIRD DEPT).

The Third Department determined Family Court properly dismissed a petition because there was no indication that New York had jurisdiction, the petition should not have been dismissed with prejudice because the merits were not reached:

Upon review of the petition, Family Court, sua sponte, found that the children resided in Georgia and dismissed the petition with prejudice for lack of subject matter jurisdiction. Petitioner appeals.

In his petition, petitioner alleged that respondent is an aunt of the children who obtained temporary guardianship of them following the mother’s death and, further, that the children reside with respondent in Georgia; notably, however, he did not allege that a New York court had made a prior custody determination involving the children, nor did he allege any circumstances involving the children that would support a specific basis for jurisdiction. Thus, the petition fails to allege any facts that would provide New York with jurisdiction to make the determination in this case … and, therefore, Family Court did not err by dismissing this proceeding without a hearing … . However, inasmuch as Family Court dismissed the proceeding for lack of subject matter jurisdiction based solely upon a review of petitioner’s sparse pro se petition and without reaching the merits, it erred in dismissing the proceeding with prejudice … . Matter of David EE. v Laquanna FF., 2019 NY Slip Op 00336, Third Dept 1-17-19

 

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FAMILY COURT SHOULD NOT HAVE ORDERED A GENETIC MARKER TEST WITHOUT A HEARING AND THE CHILD DID NOT RECEIVE ADEQUATE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department determined Family Court should not have ordered a genetic marker paternity test without a hearing and the child did not receive adequate assistance of counsel:

The attorney for the child (hereinafter AFC) informed the court that, through discussions with the grandmother, the AFC learned that the child might also hold a belief that someone else is his father. The record does not give any indication that the AFC discussed with the child his belief as to who his father is. Beyond a few short and scattered statements, there was no substantive evidence or discussion of who has a parent-child relationship with the child and whether, due to equitable estoppel, a genetic marker test would not be in the child’s best interests. The court’s order is reflective of this, as it strictly relates to how the test is to be carried out and contains no case-specific discussion. Accordingly, Family Court did not possess adequate information to determine the child’s best interests and, as such, it erred in ordering genetic marker testing without first conducting a hearing … .

Additionally, we find that the child did not receive the effective assistance of counsel. The record is bereft of evidence indicating that the AFC consulted with the child, who was from 4½ to 6 years old throughout the time of this litigation … . We recognize that such consultation runs the risk of raising parentage concerns not harbored by the child; nevertheless, a patient, careful and nuanced inquiry is not only possible, but necessary … . “Counsel’s failure to consult with and advise the child to the extent of and in a manner consistent with the child’s capabilities constitutes a failure to meet [his or her] essential responsibilities as the [AFC]” … . Inasmuch as consultation with the child and subsequent communication of the child’s position to Family Court are of the utmost importance … , it is clear that the child did not receive meaningful representation … . Matter of Schenectady County Dept. of Social Servs. v Joshua BB., 2019 NY Slip Op 00335, Third Dept 1-17-19

 

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