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EVEN THOUGH FATHER PAID WHAT HE OWED WHEN MOTHER FILED A PETITION FOR UNPAID CHILD SUPPORT, MOTHER WAS ENTITLED TO ATTORNEY’S FEES (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court improvidently exercised its discretion when it denied mother’s request for attorney’s fees. Father was in arrears but paid what was owed after mother filed a petition for the unpaid child support. Mother was entitled to attorney’s fees despite the fact that father withheld payment because of a dispute about cell phone bills and college expenses:

Pursuant to Family Court Act § 438(a), a court, in its discretion, may award reasonable attorneys’ fees in an enforcement proceeding. The denial of an award of attorneys’ fees to the mother in this case was an improvident exercise of discretion. The father paid the sum demanded for arrears in satisfying his child support obligations, but only after the mother was forced to expend attorneys’ fees to commence an enforcement proceeding. The fact that the father was engaged in a dispute over whether he should be credited for payments for cell phone expenses and college expenses paid before the entry of the parties’ judgment of divorce did not authorize him to engage in self-help by withholding child support payments that he ultimately did not dispute were due and owing. Matter of Mensch v Mensch, 2019 NY Slip Op 00126, Second Dept 1-9-19

 

FAMILY COURT SHOULD NOT HAVE DENIED INCARCERATED FATHER’S PRO SE PETITION SEEKING VISITATION BASED UPON THE EXISTENCE OF TWO ORDERS OF PROTECTION, THE FAMILY COURT ORDER OF PROTECTION, BY LAW, EXPIRED AFTER ONE YEAR, NOT WITHSTANDING A 2022 EXPIRATION DATE IN THE ORDER, AND THE ORDER OF PROTECTION IN THE CRIMINAL MATTER DID NOT PERTAIN TO THE CHILDREN (THIRD DEPT).

The Third Department, reversing Family Court, determined the incarcerated father’s petition seeking visitation with his children should not have been dismissed based upon two orders of protection. Although the Family Court order of protection, on its face, was to expire in 2022, it could not, under the law, exceed one year. The Family Court order of protection therefore expired in 2016. As for the order of protection issued in a criminal proceeding, it did not specifically pertain to the children and Family Court does not have the authority to change it:

Family Court, among other things, issued an order of protection that prohibited the father from having contact with the children … and such order expires on January 22, 2022. This expiration date, however, was not permissible. In this regard, because of the biological relationship between the father and the children, the duration of this order of protection could not exceed one year from the disposition of the matter, subject to any further extensions … . … We therefore modify the order of protection to reflect an expiration date of March 2, 2016. …

The order of protection issued in connection with petitioner’s criminal matter is likewise inapplicable. We note that Family Court generally does not have the authority to countermand the dictates of a criminal court order of protection … . That said, the order of protection issued against the father in his criminal matter did not specifically pertain to the subject children. Matter of Pedro A. v Gloria A., 2019 NY Slip Op 00010, Third Dept 1-3-19

 

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BREACH OF FIDUCIARY DUTY, FRAUD AND JUDICIARY LAW 487 ALLEGATIONS STEMMING FROM DEFENDANT LAW FIRM’S REPRESENTATION OF PLAINTIFF IN DIVORCE PROCEEDINGS DUPLICATED THE LEGAL MALPRACTICE ALLEGATIONS, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that plaintiff’s legal malpractice, breach of fiduciary duty, fraud and Judiciary Law 487 causes of action against the law firm which represented her in divorce proceedings should have been dismissed. The opinion is fact-specific. The legal issues mentioned include: the breach of fiduciary duty allegations were identical to the legal malpractice allegations and therefore required the “but for” element of legal malpractice (which was missing), and the fraud and Judiciary Law 487 claims were identical and duplicated the legal malpractice allegations, requiring dismissal. Knox v Aronson, Mayefsky & Sloan, LLP,  2018 NY Slip Op 09030, First Dept 12-27-18

 

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FAMILY COURT DID NOT HAVE SUFFICIENT EVIDENCE BEFORE IT TO GRANT FATHER’S PETITION FOR CUSTODY WHEN MOTHER FAILED TO APPEAR, MOTHER’S MOTION TO VACATE THE DEFAULT ORDER SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Family Court, determined the court did not have sufficient evidence before it to grant father’s petition for custody when mother did not appear:

While the decision to grant or deny a motion to vacate a default rests in the sound discretion of the court, “default orders are disfavored in cases involving the custody or support of children, and thus the rules with respect to vacating default judgments are not to be applied as rigorously” … .

Although the mother did not demonstrate a reasonable excuse for her default in the change of custody case, she had a meritorious defense. The children have resided primarily with her, and insufficient evidence was submitted to make an informed change of circumstances determination (see Family Ct Act § 467[b][ii]) that serves the best interests of the children … .

Also, the court failed to sua sponte appoint an attorney for the children, which, based upon the insufficient evidence it had to make an informed best interests determination, would have been advisable … . Matter of Abel A. v Imanda M., 2018 NY Slip Op 09000, First Dept 12-27-18

 

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FAMILY COURT SHOULD HAVE APPOINTED A GUARDIAN FOR THE CHILD AND MADE THE FINDINGS NECESSARY FOR THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined that a guardian should have been appointed for the child and findings should have been made to allow the child to petition for special immigrant juvenile status (SIJS):

“When considering guardianship appointments, the infant’s best interests are paramount” … . Here, the Family Court erred in determining that the proposed guardian should not be appointed (see generally Family Ct Act § 355.5[7][d][ii]; Social Services Law § 371[7]), as it failed to base its decision on any assessment of the credibility of the witnesses at the hearing, and failed to examine the facts of the case within the context of the required best interests analysis … . …

… [T]he child is under the age of 21 and unmarried, and since we have found that the proposed guardian should have been appointed as the child’s guardian, a finding also should have been made that the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … .Further, based upon our independent factual review, the record supports a finding that reunification of the child with her father is not a viable option due to parental neglect … . Matter of Grechel L.J., 2018 NY Slip Op 08934, Second Dept 12-26-18

 

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FAMILY COURT SHOULD HAVE FOUND BISHME’S DAUGHTER TO HAVE BEEN DERIVATIVELY ABUSED AND NEGLECTED BASED UPON BISHME’S ABUSE AND NEGLECT OF ANOTHER CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined that the derivative abuse and neglect petition against Bishme A. should not have been dismissed and found that Bishme A. had derivatively abused his own daughter based upon the abuse and neglect of another child, Jassir R.:

The Administration for Children’s Services (hereinafter ACS) commenced two related child protective proceedings pursuant to Family Court Act article 10. One proceeding was against Jazmin R. and Bishme A., alleging that they abused and neglected the child Jassir R. when that child was approximately 14 months of age. The other proceeding was against Bishme A., alleging that he derivatively abused his own daughter, Akeliah A., who was several weeks older than Jassir R. I… [A]fter a fact-finding hearing, the court … denied the petition alleging that Bishme A. derivatively abused Akeliah A., and dismissed that proceeding. …

The Family Court should have found that Bishme A. derivatively abused Akeliah A. In a child protective proceeding pursuant to Family Court Act article 10, “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child” (Family Ct Act § 1046[a][i]). ACS established that Jassir R. suffered extensive inflicted injuries while in the care of Bishme A. Based on this evidence, ACS established, by a preponderance of the evidence, that Bishme A. derivatively abused Akeliah A. Matter of Akeliah A. (Bishme A.), 2018 NY Slip Op 08925, Second Dept 12-26-18

 

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EVIDENCE THE CHILD WITNESSED A PHYSICAL ALTERCATION BETWEEN MOTHER AND FATHER WAS SUFFICIENT FOR A FINDING FATHER NEGLECTED THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court in this child neglect proceeding, determined there was sufficient admissible evidence to find father had neglected the child. Although hearsay statements by mother were properly deemed inadmissible, the evidence that the child witnessed a physical altercation between mother and father was sufficient:

“[E]xposing a child to domestic violence is not presumptively neglectful”… However, a finding of neglect based on an incident or incidents of domestic violence is proper where a preponderance of the evidence establishes that the child was actually placed in imminent danger of harm by reason of the failure of the parent or caretaker to exercise a minimal degree of care … . Except for certain exceptions provided for in the Family Court Act, only competent, material, and relevant evidence may be admitted at a fact-finding hearing held under [*2]article 10 of the Family Court Act … .

… [R]elevant evidence, which included, … the mother’s in-court admission that she and the father engaged in a physical altercation in the child’s presence, as well as other competent, material, and relevant evidence establishing a history of domestic violence between the parents, established that the child’s physical, mental, or emotional condition was in imminent danger of being impaired as a result of the father’s failure to exercise a minimum degree of care … . Matter of Meeya P. (Anthony C.), 2018 NY Slip Op 08938, Second Dept 12-26-18

 

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SUPREME COURT SHOULD NOT HAVE AUTHORIZED CHANGING THE CHILD’S NAME TO A NAME NOT REQUESTED IN FATHER’S PETITION, A HEARING IS REQUIRED TO DETERMINE WHETHER THE NAME CHANGE IS IN THE CHILD’S BEST INTERESTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the court should not have authorized a change in the child’s name to a different name than that requested in father’s petition. The Fourth Department further found that a hearing to determine whether the name change is in the best interests of the child must be held:

The father filed the instant petition seeking to change the last name of the child to his surname and to alter the child’s first name because the father’s older daughter has the same name and lives with him and the child. The mother opposed the petition via sworn affidavit and provided a list of alternative names for the child to which she would not object. In its order, Supreme Court authorized the child to assume one of the names proposed by the mother, concluding that “the inclusion of both biological parents’ names in a child’s last name is reasonable and in the best interests of the child, particularly where, as here, both parents are active participants in the child’s life.” Thus, the court, in essence, denied the father’s petition in its entirety, and the father appeals.

… Civil Rights Law § 63 provides that, upon presentation of a petition for a name change, if the court “is satisfied . . . that the petition is true, and that there is no reasonable objection to the change of name proposed, . . . the court shall make an order authorizing the petitioner to assume the name proposed.” In the absence of a cross petition filed by the mother proposing a name change for the child, the only name that was properly before the court for consideration was the name change sought by the father in his petition.

Furthermore, “if the petition be to change the name of an infant, . . . the interests of the infant [must] be substantially promoted by the change”… . “With respect to the interests of the infant, the issue is not whether it is in the infant’s best interests to have the surname of the mother or father, but whether the interests of the infant will be promoted substantially by changing his [or her] surname” … . “As in any case involving the best interests standard, whether a child’s best interests will be substantially promoted by a proposed name change requires a court to consider the totality of the circumstances”  … . Matter of Segool v Fazio, 2018 NY Slip Op 08799, Fourth Dept 12-21-18

 

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FAMILY COURT SHOULD NOT HAVE GRANTED GRANDMOTHER’S PETITION FOR VISITATION, THE PARENTS WERE FIT AND THEIR TESTIMONY SHOULD HAVE BEEN GIVEN WEIGHT, INSTEAD FAMILY COURT IGNORED THE PARENTS’ TESTIMONY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the record did not support granting visitation rights to grandmother. The parents of the children were deemed fit and the relationship between the parents and the children was deemed to be loving and supportive. Therefore the wishes of the parents were to be given weight, Family Court ignored the testimony of the parents. Grandmother is an attorney who practices in Family Court. After a minor argument at her home between father and his brother, grandmother instituted litigation, which the Fourth Department characterized as using her position in the legal system to undermine the parental relationship:

It is well established that a fit parent has a “fundamental constitutional right” to make parenting decisions … . For that reason, the Court of Appeals has emphasized that “the courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one” … . …

Because the parents are fit, their decision to prevent the children from visiting the grandmother is entitled to “special weight” … . …

[The] evidence makes it difficult to draw any conclusion other than that the grandmother “is responsible for escalating a minor incident into a full-blown family crisis, totally ignoring the damaging impact [her] behavior would have on the [family relationships] and making no effort to mitigate that impact” … . Matter of Jones v Laubacker, 2018 NY Slip Op 08822, First Dept 12-20-18

 

FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO ORDER VISITATION TO THE THERAPISTS BY CONDITIONING FATHER’S VISITATION ON HIS PARTICIPATION IN THERAPEUTIC COUNSELING (FOURTH DEPT).

The Fourth Department determined Family Court should not have conditioned father’s visitation upon his participation in therapeutic counseling because the condition effectively delegated the court’s power to order visitation to the therapists:

… [T]he court erred in conditioning the father’s visitation upon his participation in therapeutic counseling. “Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation”… . Here, the court erred in making participation in counseling the “triggering event” in determining visitation … . We further conclude that the court impermissibly delegated the decision to hold family therapy sessions to the father’s and the child’s therapists and therefore improperly gave the therapists the authority to determine if and when visitation would occur… . We therefore modify the order by vacating the sixth, seventh, and eighth ordering paragraphs, and we remit the matter to Family Court to fashion a specific and definitive schedule for visitation between the father and the subject child. Matter of Rice v Wightman, 2018 NY Slip Op 08813, Fourth Dept 12-21-18

 

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