Family Law – Page 8 – New York Appellate Digest

THE PETITIONER WAS ENTITLED TO A HEARING ON WHETHER HIS ACKNOWLEDGMENT OF PATERNITY WAS BASED ON A MISREPRESENTATION BY MOTHER AND WHETHER PETITIONER IS ESTOPPED FROM DENYING PATERNITY BASED ON THE BEST INTERESTS OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the petitioner was entitled to a hearing on the issues of whether petitioner’s (appellant’s) acknowledgment of paternity was procured by a misrepresentation by mother and, if so, whether the petitioner should be estopped from challenging the acknowledgment based on the best interests of the child. As is often the case in Family Court reversals, the failure to hold a hearing is the problem:

“Where . . . a party seeks to challenge an acknowledgment of paternity more than 60 days after its execution, Family Court Act § 516-a(b) requires the court to conduct a hearing to determine the issues of fraud, duress, or a material mistake of fact [in the execution of the acknowledgment of paternity] before ordering a [genetic marker test]” … . “In the event the court determines that a valid ground for vacatur of the acknowledgment exists, the issue of whether the petitioner should be estopped, in accordance with the child’s best interest, from vacating the acknowledgment of paternity, must [then also] be evaluated at a hearing” … . * * *

Here, the issue of the appellant’s paternity was not actually litigated in connection with the prior proceedings … . The Family Court’s findings … that the appellant, … would have been equitably estopped from seeking vacatur of the acknowledgment of paternity, were made without a hearing, during an appearance on the appellant’s petitions to modify custody and visitation, when, in response to the appellant raising the issue of his attempts to vacate the acknowledgment of paternity, the attorney for the child indicated that the child viewed the appellant as her father. Thus, contrary to the court’s determination, the doctrine of collateral estoppel is inapplicable … . Matter of Stephen B.J.B. v Marcia N.S.C., 2025 NY Slip Op 01921, Second Dept 4-2-25

Practice Point: The most frequent basis for Family Court reversals is the judge’s failure to hold a hearing before making a ruling.

April 2, 2025

Appeals, Civil Procedure, Constitutional Law, Evidence, Family Law, Judges

FAMILY COURT LOST SUBJECT MATTER JURISDICTION AFTER THE NEGLECT PETITION WAS DISMISSED; THEREFORE THE COURT SHOULD NOT HAVE CONTINUED THE CHILD’S PLACEMENT IN FOSTER CARE (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed. Therefore the child’s placement in foster should not have been continued by the court. The First Department also noted that mother’s mental-health records from the period after the filing and after the dismissal of the neglect petition were improperly admitted:

We … find that Family Court lacked subject matter jurisdiction to continue R.C.’s foster care placement for the reasons articulated in Matter of Jamie J. (Michelle E.C.) (30 NY3d 275 [2017]), in which the Court of Appeals held that “Family Court’s jurisdiction terminates upon dismissal of the original neglect or abuse petition” … .

The “court’s lack of subject matter jurisdiction is not waivable, but may be raised at any stage of the action, and the court may . . . on its own motion . . . at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” … .

Here, once the neglect petition against the mother was dismissed, Family Court lacked subject matter jurisdiction to continue the child’s temporary removal from the mother’s care and placement in foster care … . Accordingly, it should have immediately returned the child to the mother’s care and terminated the child’s foster care placement. It erred when it determined that it could hold permanency hearings based on the pending neglect petition against the putative father, since the child was not removed from his care, but from the mother’s. … Indeed, there is no evidence in the record that the child ever resided with the putative father and no indication that he ever sought custody of the child.

Furthermore, we find that the failure of Family Court to immediately return the child to the care of the mother after the dismissal of the neglect petition against her—as well as the subsequent protracted proceedings, including the dispositional hearing, which lasted nearly a year and a half—violated her due process rights … . Matter of R.C. (D.C.–R.R.), 2025 NY Slip Op 01859, First Dept 3-27-25

Practice Point: Here Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed and did not have the authority to continue the child’s placement in foster care.

Practice Point: The protracted proceedings after the dismissal of the neglect petition, during which the child remained in foster care, violated mother’s right to due process.

March 27, 2025

Attorneys, Constitutional Law, Evidence, Family Law, Judges

MOTHER, WHO WAS REPRESENTING HERSELF IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, WAS DENIED DUE PROCESS BY THE JUDGE’S (1) COMMENCING THE HEARING WITHOUT HER, (2) SUBSEQUENTLY EXCLUDING HER FROM THE COURTROOM, (3) DENYING HER REQUEST FOR DOCUMENTS WHICH WERE IN EVIDENCE, (4) AND DENYING HER REQUEST FOR AN ADJOURNMENT TO CONSULT WITH HER LEGAL ADVISOR (SECOND DEPT).

The Second Department, reversing Family Court, determined mother, who was representing herself, was deprived of her right to due process in this termination of parental rights proceeding by “a confluence of factors:”

“A parent has a due process right to be present during proceedings to terminate parental rights”. Nonetheless, “[a] parent’s right to be present for fact-finding and dispositional hearings in proceedings to terminate parental rights is not absolute” … . “The child whose guardianship and custody is at stake also has a fundamental right to a prompt and permanent adjudication” … . “Thus, when faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child in determining whether to proceed” … .

Here … the mother was deprived of her due process right to be present in the proceedings seeking to terminate her parental rights. First, the Family Court determined to commence the hearing in the mother’s absence, even though she was proceeding pro se and had made representations to the court through her legal advisor that she had been directed to quarantine by her medical provider and was requesting an adjournment … . Notably, the record does not indicate that the mother had a history of failing to appear, nor did the court apparently rely on that factor in deciding to commence the hearing in the mother’s absence … .

Furthermore, when the hearing continued one week later, the Family Court improvidently exercised its discretion in denying the mother’s requests, among other things, for a copy of her own court-ordered psychiatric evaluation, which, at that point, was in evidence, and for additional time to obtain a court transcript and to consult with her legal advisor. Perhaps most significantly, the court abused its discretion in excluding the mother from the courtroom for the remainder of the hearing, without the issuance of a warning and with knowledge of the mother’s diagnoses contained in the psychiatric evaluation … . Thus, on both dates of the hearing, the mother was left without an advocate … . Matter of Justina C. M. J. (Chantilly J.), 2025 NY Slip Op 01805, Second Dept 3-26-25

Practice Point: Here mother was denied the right to be present in the termination-of-parental-rights proceeding, was denied access to evidence and her request for an adjournment to consult with her legal advisor was denied. Cumulatively mother was denied her right to due process.

March 26, 2025

Family Law, Judges

THE JUDGE SHOULD NOT HAVE PLACED CONDITIONS ON MOTHER’S VISITATION; MATTER REMITTED FOR A SPECIFIC VISITATION SCHEDULE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined the judge should not have placed conditions on mother’s visitation and remitted the matter for a visitation schedule:

We agree with the mother … that the court erred in conditioning her visitation upon either her participation in domestic violence counseling or that she no longer reside with her husband … . We therefore modify the order accordingly, and we remit the matter to Family Court to fashion a specific and definitive schedule for visitation, if any, between the mother and the children. Matter of Seeley-Sick v Allison, 2025 NY Slip Op 01747, Fourth Dept 3-21-25

Practice Point: Conditioning mother’s visitation on domestic violence counseling or on no longer resided wither her husband was deemed improper. Mother was entitled to a specific visitation schedule.

March 21, 2025

Criminal Law, Family Law

PRIVATE MESSAGES SENT BY THE JUVENILE DID NOT MEET THE CRITERIA FOR A “TERRORISTIC THREAT” (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the messages sent by the juvenile did not meet the criteria for a terroristic threat:

… [A] person is guilty of making a terroristic threat when “with intent to intimidate or coerce a civilian population . . . [they] threaten[ ] to commit or cause to be committed a specified offense and thereby cause[ ] a reasonable expectation or fear of the imminent commission of such offense” (Penal Law § 490.20 [1]). Here, petitioner presented testimony that respondent sent private messages to another student in a different school district that respondent was planning to commit a mass shooting to end bullying in his school. There was no evidence that those threats were made to anyone other than the student or that respondent requested that the student relay the threats to others. “A private conversation between immature teenage friends, without more, does not establish the element of intent to intimidate a civilian population” … . Matter of Jose M.F. (Seneca County Presentment Agency), 2025 NY Slip Op 01734, Fourth Dept 3-21-25

Practice Point: Threatening to commit a mass shooting to end school bullying in a private message to another student does not satisfy the criteria for a “terroristic threat.”

March 21, 2025

Family Law, Judges

FATHER’S RIGHT TO FILE FUTURE PETITIONS FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN CONDITIONED ON MENTAL HEALTH TREATMENT; RATHER THE TREATMENT SHOULD BE A CONDITION FOR SUPERVISED VISITATION (FOURTH DEPT).

The Fourth Department noted that father’s right to file future modification-of-custody petitions should not have been conditioned upon mental health treatment:

“It is well established that a court lacks authority to condition any future application for modification of a parent’s [custody or] visitation on [that parent’s] participation in mental health treatment” … . We therefore modify the order … by striking the provision requiring that the father submit proof that he is engaged in and compliant with mental health counseling with a psychiatrist as a prerequisite to filing a modification petition and providing instead that the father comply with that condition as a component of supervised visitation … . Matter of Shakema R. v Mesha B., 2025 NY Slip Op 01512, Fourth Dept 3-14-25

Practice Point: It is not OK for a judge to condition a party’s ability to file future petitions for modification of custody upon mental health treatment. However treatment can be made a condition for supervised visitation.

March 14, 2025

Criminal Law, Family Law

RESTRAINING A PERSON FOR A FEW SECONDS WHILE ATTEMPTING TO PULL THAT PERSON INTO A VEHICLE DOES NOT SATISFY THE CRITERIA FOR KIDNAPPING (SECOND DEPT).

The Second Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, determined the evidence did not support the kidnapping charge:

… Family Court’s determination that the appellant committed acts which, if committed by an adult, would have constituted the crime of kidnapping in the second degree was against the weight of the evidence. “A person is guilty of kidnapping in the second degree when he [or she] abducts another person” (Penal Law § 135.20 …). As relevant here, abduction “means to restrain a person with intent to prevent his [or her] liberation by either secreting or holding him [or her] in a place where he [or she] is not likely to be found” … . “Restrain means to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his [or her] liberty by moving him [or her] from one place to another, or by confining him [or her] . . . without consent and with knowledge that the restriction is unlawful” … . Here, the presentment agency’s evidence demonstrated that the appellant restrained the complainant for a very short time while the two were in the midst of a physical altercation. Although the complainant testified that the appellant pulled her partway into a vehicle, at least one door of the vehicle remained open and the vehicle traveled only a very short distance before stopping again within a matter of mere seconds. The evidence established only that the appellant restrained the complainant, without the requisite “secreting or holding [her] in a place where [she] is not likely to be found” (Penal Law § 135.00[2][a]). Matter of Marco F., 2025 NY Slip Op 01365, Second Dept 3-12-25

Practice Point: Consult this decision for a clear explanation of the elements of “kidnapping.” Briefly restraining a person while unsuccessfully trying to pull that person into a vehicle is not enough.

March 12, 2025

Civil Procedure, Family Law

IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ABSENT THE CONSENT OF THE PARTIES TO DISPENSE WITH IT, A DISPOSITIONAL HEARING MUST BE HELD AFTER THE COMPLETION OF THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department determined the record supported termination of father’s parental rights, but the order must be reversed because the court failed to hold a dispositional hearing after the completion of the fact-finding hearing. The matter was remitted:

Family Court erred in failing to hold a dispositional hearing. “Family Ct Act § 625 (a) expressly provides that, upon completion of a fact-finding hearing, a dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing” … . Given that the record is devoid of the parties’ consent to dispense with a dispositional hearing, the matter is remitted for a dispositional hearing “or to otherwise affirmatively gain the parties’ consent to dispense of the matter without one” … . Matter of Konner N. (Justin O.), 2025 NY Slip Op 01017, Third Dept 2-20-25

Practice Point: Here the order terminating father’s parental rights was reversed because no dispositional hearing was held, and there was no indication the parties consented to proceeding without one. The matter was remitted.

February 20, 2025

Attorneys, Civil Procedure, Family Law

MOTHER’S OBJECTIONS TO THE CHILD SUPPORT ORDER WERE NEVER SERVED ON FATHER’S COUNSEL; THE SUBSEQUENT ORDER GRANTING THE OBJECTIONS IS VOID (THIRD DEPT).

The Third Department, reversing Family Court, determined that the mother’s objections to the Support Magistrate’s child support order, which Family Court granted, should have been served on father’s counsel. Under the circumstances of the case, the failure to serve counsel rendered the related court orders void:

Family Ct Act § 439 (e) directs that “[a] party filing objections shall serve a copy of such objections upon the opposing party, who shall have [13] days from such service to serve and file a written rebuttal to such objections.” This provision does not address the issue of whether service on an attorney representing a party constitutes service on the opposing party. Where a method of procedure is not prescribed, Family Ct Act § 165 (a) provides that “the provisions of the [CPLR] shall apply to the extent that they are appropriate to the proceedings involved … .” CPLR 2103 specifically pertains to the service of papers and provides that “papers to be served upon a party in a pending action shall be served upon the party’s attorney” (CPLR 2103 [b]). Accordingly, “service on an opposing party represented by counsel requires service on the attorney, not the party” … . The record supports that counsel was not served with the objections, and in fact only became aware of them upon receipt of Family Court’s order granting same. * * * … [C]ounsel never obtained a copy of the objections, and thus never responded to same. Matter of Andersen v Bosworth, 2025 NY Slip Op 01029, Third Dept 2-20-25

Practice Point: Here the failure to serve father’s counsel with mother’s objections to the child support order, which were subsequently granted by Family Court, rendered the order granting the objections void.

February 20, 2025

Civil Procedure, Family Law, Judges

DENYING FATHER’S REQUEST FOR AN ADJOURNMENT IN THIS CUSTODY MODIFICATION PROCEEDING EFFECTIVELY DEPRIVED HIM OF HIS RIGHT TO TESTIFY AND HIS RIGHT TO A FULL AND FAIR EVIDENTIARY HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined the court improvidently exercised its discretion when it denied father’s request for an adjournment of the custody modification proceedings. Father was effectively denied his right to testify:

“The granting of an adjournment rests in the sound discretion of the hearing court upon a balanced consideration of all relevant factors” … . “The determination to grant or deny an adjournment will not be overturned absent an improvident exercise of discretion” … . While adjournments are within the discretion of the hearing court, the range of that discretion is narrowed where a fundamental right of the parties is involved … . Generally, in a proceeding pursuant to Family Court Act article 6 seeking modification of a prior custody and visitation order, a full and comprehensive hearing is required, where due process requires that a parent be afforded a full and fair opportunity to be heard … .

After balancing the relevant factors, we find that under the circumstances of this case, the Family Court improvidently exercised its discretion in denying the father’s request for an adjournment, as the court’s denial of the requests for adjournment deprived the father entirely of his right to testify on his own behalf in the custody modification hearing, thereby depriving him of a full and fair evidentiary hearing … . Matter of Panizo v Douglas, 2025 NY Slip Op 00966, Second Dept, 2-19-25

Practice Point: Although the decision to grant or deny a request for an adjournment is discretionary, here the denial of the request effectively deprived father of his right to a full and fair evidentiary hearing in this custody modification proceeding, requiring reversal.

February 19, 2025