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CHILD’S MOTION FOR FINDINGS TO ALLOW HIM TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) SHOULD HAVE BEEN GRANTED, THERE WAS EVIDENCE THE CHILD WOULD BE KILLED UPON RETURN TO EL SALVADOR (SECOND DEPT).

The Second Department, reversing Family Court, determined that the motion for an order making the findings necessary for the child to petition for special immigrant juvenile status (SIJS) should have been granted:

Based upon our independent factual review, the record supports a finding that reunification of the child with the father is not a viable option due to parental neglect… . The record demonstrates that when the child lived with the mother and the father in El Salvador, the father would physically mistreat the mother in the presence of the child by hitting her with objects such as a book and shoes, causing her bruising, and that, when the child attempted to defend the mother, the father would hit the child. The child also averred in his affidavit that “[w]hen [the father] would get angry, which was often, he became very violent toward me, yelling at me and punching me,” and the mother indicated that she had to send the child to live with his maternal grandmother in El Salvador because she was afraid of what the father would do to the child. The record also demonstrates that the father had provided no financial support for the child since the child was 10 years old. Thus, the father’s conduct, including acts of domestic violence perpetrated in the presence of the child, constituted neglect … , which established that the child’s reunification with the father is not viable … .

The record also does not support the Family Court’s determination that the child failed to show that it would not be in his best interests to return to El Salvador. The child testified that gang members in El Salvador tried to recruit him, but he refused to join, that after his refusal to join, the gang members threatened and assaulted him multiple times, “hurt me[ ] very bad,” “left me on the streets after they beat me up,” and would have killed him on one occasion if not for a police patrol “coming by that moment,” that he was afraid to go outside after the incident when he was almost killed, and that “if I go back [to El Salvador] they will kill me” … . Matter of Lucas F.V. (Jose N.F.), 2019 NY Slip Op 01079, Second Dept 2-13-19

 

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DEFENDANT SHOULD HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO PAY ATTORNEY’S FEES AS ORDERED BY THE COURT, THE CONTEMPT PROCEEDINGS WERE NOT FRIVOLOUS AND SANCTIONS SHOULD NOT HAVE BEEN IMPOSED FOR BRINGING THE CONTEMPT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s law firm (Villar firm) was entitled to attorney’s fees for work done before the firm was discharged without cause, the contempt action brought by the firm against defendant for failure to pay the fees as ordered by the court was valid and defendant should have been held in contempt, and the contempt proceedings were not frivolous or designed to harass. Therefore sanctions for bringing the contempt proceedings should not have been imposed:

To prevail on a motion to hold another party in civil contempt, the movant is “required to prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The movant in a civil contempt proceeding need not establish “that the disobedience [was] deliberate or willful” … . “Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order” … . …

“In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a] …). “[C]onduct is frivolous if . . . (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c] …). Contrary to the Supreme Court’s determination, there is no evidence in the record to support a finding that the Villar firm pursued the contempt motion to harass the parties for settling their case … . Rhodes v Rhodes, 2019 NY Slip Op 01113, Second Dept 2-13-19

 

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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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