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FAMILY COURT DID NOT HAVE SUFFICIENT EVIDENCE TO DETERMINE IT WAS IN THE CHILD’S BEST INTERESTS TO BE WITH FATHER IN THIS TEMPORARY CUSTODY PROCEEDING, ALLEGATIONS OF EXCESSIVE CORPORAL PUNISHMENT REQUIRED A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined questions of fact about father’s use of corporal punishment required a hearing in this temporary custody matter about whether it was in the child’s best interests to be placed with father:

“[I]n any action concerning custody or [parental access] where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interest of the child, together with other factors and circumstances as the court deems relevant in making an award of custody” (…see Domestic Relations Law § 240[1]…). In addition, consideration may be given to the express wishes of older and more mature children, but such wishes are not dispositive … .

As a general rule, “a custody determination should be made only after a full and fair hearing at which the record is fully developed”… . Under the circumstances of this case, the Family Court did not have sufficient evidence before it to reach a sound conclusion that it was in the subject child’s best interests for the father to have temporary custody pending determination of the issue of permanent custody. Throughout the proceedings, there were controverted allegations of excessive corporal punishment by the father against the subject child and the court was informed that the subject child suffers from certain mental health issues that were being treated in Connecticut. Matter of Poltorak v Poltorak, 2018 NY Slip Op 08662, Second Dept 12-19-18

 

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FATHER SHOULD NOT HAVE BEEN PRECLUDED FROM BRINGING FUTURE PARENTAL ACCESS PETITIONS WITHOUT COURT APPROVAL (SECOND DEPT).

The Second Department, reversing Family Court in this modification of custody proceeding, determined father should not have been precluded from submitting future parental access petitions:

A party seeking modification of an existing custody or parental access order must demonstrate that there has been a change in circumstances such that modification is required to protect the best interests of the child… . “One who seeks a change in [parental access] is not automatically entitled to a hearing but must make a sufficient evidentiary showing of a material change of circumstances to warrant a hearing”… . However, where a facially sufficient petition has been filed, a full and comprehensive hearing is required to afford the parent a full and fair opportunity to be heard … .

Here, the Family Court should not have dismissed the father’s petition without a hearing. His evidentiary submissions were sufficient to warrant a hearing … .

The Family Court improvidently exercised its discretion in enjoining the father from filing any future parental access petitions without prior express written permission from the court. The court’s conclusion that the father had previously filed an “excessive number of petitions” was not supported by the record, nor was there any evidence that the father’s continued litigation had become abusive and vexatious … . Matter of Gonzalez v Santiago, 2018 NY Slip Op 08653, Second Dept 12-19-18

 

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FATHER MADE OUT A PRIMA FACIE CASE FOR A MODIFICATION OF CUSTODY BASED UPON LOSS OF EMPLOYMENT, PETITION SHOULD NOT HAVE BEEN DISMISSED, REMITTED FOR A CONTINUED HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition to modify the custody arrangement should not have been dismissed and the matter was remitted for a continued hearing. Father’s proof had made out a prima facie case based upon the loss of employment:

… [F]ather petitioned to modify the order of custody and parental access to remove the requirement that the parental access be professionally supervised at his expense, on the ground that he had recently lost his job and could not afford the cost of professional supervision. At a hearing on his petition, the father testified that he had lost his job in February 2016, a few months after the order of custody and parental access was made, and since that time, he had exercised parental access with the child on a limited basis due to the cost of professional supervision. He admitted that the cost of professional supervision was prohibitive even when he was employed but that, since losing his job, his parental access had further decreased. …

A party seeking modification of an existing custody or parental access order must demonstrate that there has been a change in circumstances such that modification is required to protect the best interests of the child … . The best interests of the child are determined by a review of the totality of the circumstances … . In deciding a motion to dismiss for failure to establish a prima facie case, the court must accept the petitioner’s evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom … .

Here, accepting the father’s evidence as true and affording him the benefit of every favorable inference, the father presented sufficient prima facie evidence of a change of circumstances which might warrant modification of parental access in the best interests of the child. Matter of Gonzalez v Santiago, 2018 NY Slip Op 08652, Second Dept 12-19-18

 

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FATHER WAS NOT ADEQUATELY INFORMED OF THE CONSEQUENCES OF PROCEEDING WITHOUT AN ATTORNEY, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court in this neglect proceeding, determined father was not adequately informed of his right to an attorney:

… [A]lthough the Family Court repeatedly asked the father whether he wanted to represent himself, told him that he would have to follow the same legal rules as the other parties, and cautioned him generally against self representation, the court did so without detailing the dangers and disadvantages of proceeding pro se … . More specifically, the court failed to adequately warn the father of the risks inherent in proceeding without an attorney; failed to adequately apprise the father of the critical importance of having an attorney in a child neglect proceeding, particularly where there is a related criminal matter pending; failed to adequately explore the defendant’s age, education, occupation, previous exposure to legal procedures and other factors bearing on a competent, intelligent, voluntary waiver; and failed to ensure that the father acknowledged his understanding of the perils of self-representation. Because the court failed to conduct a sufficiently searching inquiry of the father to be reasonably certain that he understood the dangers and disadvantages of giving up the fundamental right to counsel, and thus failed to ensure that the father’s waiver of his right to counsel was made knowingly, intelligently, and voluntarily, we must reverse the order and remit the matter to the Family Court, Suffolk County, for a new hearing and a new determination, after a proper inquiry into the father’s understanding of the consequences of self-representation … . Matter of Alivia F. (John F.), 2018 NY Slip Op 08649, Second Dept 12-19-18

RIGHT TO COUNSEL

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FAMILY COURT’S TERMINATION OF MOTHER’S PARENTAL RIGHTS WAS NOT SUPPORTED BY THE EVIDENCE, MOTHER WAS DEALING WITH HER MENTAL HEALTH AND DRUG PROBLEMS AND THE SPECIAL NEEDS OF THE CHILDREN WERE BEING ADDRESSED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined that the proof requirements for the termination of parental rights were not met:

To establish that a parent has permanently neglected a child, an agency must demonstrate, by clear and convincing evidence, that the parent “failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child” (Social Services Law § 384-b[7][a]).

… The mother testified that she complied with all of the requirements that were communicated to her in order for the children to be returned to her care. According to the mother, these requirements included visiting with the children regularly, undergoing multiple mental health evaluations, consistently participating in mental health treatment, undergoing drug testing, completing parenting skills classes, visiting the children’s school as much as allowed, and keeping up with the children’s health status. The case files … generally supported the mother’s testimony … .

In light of the petitioner’s failure to adduce other evidence beyond the mother’s own testimony as to the initial reasons for the children’s removal from her care, the significance of the mother’s mental health diagnosis, or the significance of the special needs diagnoses of the children, there was no basis for a determination that the mother’s testimony on these subjects demonstrated a failure “to take such steps as may be necessary to provide an adequate, stable home and parental care for the child[ren] within a period of time which is reasonable under the financial circumstances available to the parent” … . Matter of Jaylen R.B. (Lisa G.)2018 NY Slip Op 08643, Second Dept 12-19-18

 

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CUSTODY SHOULD NOT HAVE BEEN TRANSFERRED TO FATHER AND ALL CONTACT BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN SUSPENDED WITHOUT A HEARING, JUDGE, SUA SPONTE, SHOULD NOT HAVE PROHIBITED FUTURE PETITIONS FOR CUSTODY OR VISITATION BY MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the court should not have transferred custody to father and suspended all contact between the child and mother for a year without conducting a hearing. The First Department further held that the judge should not have, sua sponte, prohibited mother from filing future petitions for custody or visitation without leave of court because no party requested that relief:

… [T]he court erred when, without holding an evidentiary hearing, it made a final order transferring physical and legal custody to the father and suspending all contact between the mother and the child for a year. Determination of the child’s best interests requires examination of the totality of the circumstances … . We have consistently held that “an evidentiary hearing is necessary before a court modifies a prior order of custody or visitation,” even where the court is familiar with the parties and child, and particularly where there are facts in dispute … . Furthermore, while we have stated that a hearing on modification of a custody arrangement in the child’s best interests “may be as abbreviated, in the court’s broad discretion, as the particular allegations and known circumstances warrant. . . ,’ it must include an opportunity for both sides, and the children’s attorney when there is one, to present their respective cases, and the factual underpinnings of any temporary order [must be] made clear on the record'” … .

Here, the court made a final determination without taking any testimony or entering any documents into evidence. The court’s reliance on statements made by the ACS caseworker during a court conference was inappropriate, since the mother’s attorney had requested, but was denied, a full hearing at which counsel could have cross-examined the caseworker. Matter of Michael G. v Katherine C., 2018 NY Slip Op 08568, First Dept 12-13-18

 

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MOTHER’S PETITION TO RELOCATE WITH THE CHILD SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING, THE PETITION WAS GRANTED AFTER FATHER SCREAMED AT COURT PERSONNEL (SECOND DEPT).

The Second Department determined Family Court should not have granted mother’s petition to relocate in this custody modification proceeding without holding a hearing. Family Court granted the petitioner after father appeared and screamed at court personnel:

Where a custodial parent seeks to relocate over the objection of the non-custodial parent, the court must consider each relocation request “on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” … . “In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” … .

Although “[a] parent seeking a change of custody is not automatically entitled to a hearing” … , “custody determinations should [g]enerally’ be made only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “When the allegations of fact in a petition to change custody are controverted, the court must, as a general rule, hold a full hearing” … . Matter of Williams v Jenkins, 2018 NY Slip Op 08491, Second Dept 12-12-18

 

 

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ABSENCE OF A SEXUAL RELATIONSHIP IS NOT NECESSARILY DETERMINATIVE IN AN ASSESSMENT OF WHETHER A PARTY IS A MEMBER OF A HOUSEHOLD FOR PURPOSES OF JURISDICTION OVER A FAMILY OFFENSE PROCEEDING, FAMILY COURT SHOULD NOT HAVE MADE A FINDING RESPONDENT WAS NOT A MEMBER OF THE HOUSEHOLD WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined that Family Court should not have found that respondent and petitioner did not have an intimate relationship without holding a hearing. Petitioner sought an order of protection against respondent. Under the Family Court Act the court has jurisdiction in a family offense proceeding only if the parties are deemed to have an intimate relationship. Family Court found that, because the relationship was not sexual, it did not constitute an intimate relationship. The Second Department noted that the existence of a sexual relationship is not necessarily determinative and sent the matter back for a hearing:

The Family Court is a court of limited subject matter jurisdiction and “cannot exercise powers beyond those granted to it by statute”… . Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” … .

Effective July 21, 2008 … , the Legislature expanded the definition of “members of the same family or household” to include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” (Family Ct Act § 812[1][e] …). The Legislature also expressly excluded from the definition of “intimate relationship” a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts”… . Beyond those delineated exclusions, the Legislature left it to the courts to determine on a case-by-case basis whether a particular relationship constitutes an “intimate relationship” within the meaning of Family Court Act § 812(1)(e). The Legislature provided that “[f]actors the court may consider in determining whether a relationship is an intimate relationship’ include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship”… . The determination of whether persons are or have been in an “intimate relationship” within the meaning of the statute may require a hearing … . Matter of Raigosa v Zafirakopoulos, 2018 NY Slip Op 08485, Second Dept 12-12-18

 

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AUDIOTAPES OF CONVERSATIONS BETWEEN THE PATERNAL GRANDMOTHER AND THE CHILD WERE PROPERLY SUPPRESSED BECAUSE THEY WERE THE PRODUCT OF ILLEGAL WIRETAPPING UNDER CPLR 4506 (SECOND DEPT).

The Second Department determined Family Court properly suppressed audiotapes of conversations between the paternal grandmother and the child in this custody dispute between the maternal and paternal grandmothers. The audiotapes constituted illegal wiretapping pursuant to CPLR 4506:

Contrary to the maternal grandmother’s contention, the Family Court properly granted the paternal grandmother’s motion to suppress audiotapes of conversations between the paternal grandmother and the child pursuant to CPLR 4506, which provides for the suppression of evidence obtained by illegal wiretapping. The maternal grandmother and her son (the child’s uncle) were not parties to the conversation, were not present during the conversation, and the maternal grandmother does not assert that, under the circumstances, any vicarious consent was given… . Moreover, there is no merit to the maternal grandmother’s contention that the motion was untimely because it was not made before the hearing, since the paternal grandmother only learned of the existence of the tapes during the hearing (see CPLR 4506[4]). Matter of Dennis v Davis-Schloemer, 2018 NY Slip Op 08480, Second Dept 12-12-18

MOTION TO SUPPRESS, SUPPRESSION

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FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT).

The Second Department, reversing Family Court, determined that Hawaii should not have been found to be the more appropriate forum for this custody proceeding without first assuring that all the findings made in Hawaii were vacated. Mother had moved to Hawaii and her custody proceedings there were completed before the Hawaii court was alerted by Family Court of father’s custody proceedings in New York. Hawaii never had subject matter jurisdiction so the matter was sent back to Family Court for a fresh ruling on whether New York is an inconvenient forum:

… [G]iven the substance of its discussions with the Hawaii Court, the Family Court’s determination to engage in an inconvenient forum analysis under Domestic Relations Law § 76-f(1) was an improvident exercise of discretion. Since New York was the child’s home state pursuant to the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] , the Hawaii Court lacked subject matter jurisdiction to make determinations on the mother’s child custody petition… . When the Family Court conferred with the Hawaii Court, the Hawaii Court informed the Family Court that the father was personally served with the mother’s custody petition, which suggested that the Hawaii Court determined that it had personal jurisdiction over the father. But, having been informed of the facts establishing that New York was the child’s home state, the Hawaii Court did not acknowledge its own lack of subject matter jurisdiction to have issued orders regarding child custody … . “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” … . In the absence of any indication that the Hawaii Court vacated those orders, the Family Court should not have determined that the Hawaii Court was a more appropriate forum. Indeed, the father did not participate in any of the proceedings in Hawaii and there was no certainty that Hawaii would permit the father to not only reopen the hearings previously held in order to submit his own testimony and evidence, but also, that he would be given an opportunity to challenge the evidence already submitted, including to cross-examine the mother. Matter of Montanez v Tompkinson, 2018 NY Slip Op 08305, Second Dept 12-5-18

FAMILY LAW (FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/CUSTODY (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/FORUM NON CONVENIENS (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/CIVIL PROCEDURE (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/JURISDICTION (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))/SUBJECT MATTER JURISDICTION (FAMILY LAW, FORUM NON CONVENIENS, FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT))

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