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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.​

 

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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.”

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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A MUNICIPALITY OWES A CHILD IT PLACES IN FOSTER CARE A SPECIAL DUTY SUCH THAT THE MUNICIPALITY CAN BE LIABLE FOR A NEGLIGENT PLACEMENT WHICH LEADS TO FORESEEABLE HARM TO THE CHILD (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge dissenting opinion, determined a municipality owes a child placed in foster care a special duty, such that the municipality, although performing a governmental function, can be liable for negligent placement of a child:

Today we hold that municipalities owe a duty of care to the children the municipalities place in foster homes because the municipalities have assumed custody of those children. As a result, we reverse the decision of the Appellate Division.

Plaintiff, formerly a child in foster care, commenced this action pursuant to the Child Victims Act (see CPLR 214-g) against defendant Cayuga County and “Does 1-10,” who she alleged were “persons or entities with responsibilities for [p]laintiff’s safety, supervision and/or placement in foster care.” According to the complaint, the County placed plaintiff in foster care in 1974, when she was three months old. While in the foster home selected by the County, plaintiff allegedly suffered horrific abuse. Plaintiff alleged that her foster parent sexually abused her over the course of approximately seven years, beginning when she was 18 months old and continuing until she was eight years old. The foster parent allegedly coerced plaintiff’s compliance with the sexual abuse by inflicting severe physical abuse, resulting in plaintiff sustaining broken bones and a head wound. * * *

By assuming legal custody over the foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life … . We thus hold that a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from “foreseeable risks of harm” arising from the child’s placement with the municipality’s choice of foster parent … . Weisbrod-Moore v Cayuga County, 2025 NY Slip Op 00903, CtApp 2-18-25

Practice Point: A municipality generally is not liable for injury resulting from the exercise of a governmental function absent a special duty owed to the injured party. Resolving a split of authority, here the Court of Appeals held a municipality owes a special duty to a child it places in foster care.

 

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PETITIONER, WHO IS NOT RELATED TO THE CHILD, DID NOT HAVE STANDING BY EQUITABLE ESTOPPEL TO SEEK CUSTODY OR VISITATION; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Family Court, determined petitioner, who is not related to the child, did not have standing by equitable estoppel to seek custody of or visitation with the child. The evidence did not demonstrate the relationship between petitioner and the child rose to the level of parenthood:

While the record contains evidence suggesting that petitioner and the child had an ongoing relationship throughout the child’s formative years, the record does not support the idea that disrupting such a relationship would be harmful to the child’s best interests. Petitioner never lived with the child or assumed any financial responsibilities for her. Although petitioner credibly testified that the child visited her frequently during the first three years of the child’s life, there was no evidence that petitioner consistently cared for the child or that the child looked upon petitioner as a parental figure.

… [T]here was evidence that the child did not recognize or view petitioner as parental figure … . From the child’s perspective, the only other parent she knew, aside from respondent, the child’s biological mother, was the mother’s companion, whom she regarded as her father and with whom she reported having a close, bonded relationship with, undercutting petitioner’s equitable estoppel claim … . Matter of April B. v Relisha H., 2025 NY Slip Op 00782, First Dept 2-11-25

Practice Point: To demonstrate standing to bring a custody petition by equitable estoppel, the petitioner must demonstrate a relationship with the child which rises to the level of parenthood, not the case here.

 

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COUNTY COURT PROPERLY GRANTED THE PEOPLE’S REQUEST TO PREVENT REMOVAL OF DEFENDANT’S CASE TO FAMILY COURT UNDER THE “RAISE THE AGE ACT;” THERE WAS A COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, over a comprehensive dissent, determined County Court properly granted the People’s motion to prevent removal of defendant’s case to Family Court pursuant to the Raise the Age Law:

In 2017, the New York State Legislature enacted the Raise the Age Law, which defines a person who was charged with a felony committed on or after October 1, 2018 when the person was 16 years old, or committed on or after October 1, 2019 when the person was 17 years old, as an ” ‘[a]dolescent offender’ ” … . The Raise the Age Law created in each county a youth part of the superior court to make appropriate determinations with respect to the cases of, inter alia, adolescent offenders … . Where, as here, an adolescent offender is charged with a violent felony as defined in Penal Law § 70.02, within six calendar days of the adolescent offender’s arraignment, the youth part of superior court is required to review the accusatory instrument and determine whether the prosecutor has proven by a preponderance of the evidence that the adolescent offender caused “significant physical injury” to someone other than a participant in the crime, displayed a “firearm, shotgun, rifle or deadly weapon as defined in the penal law” in furtherance of the crime, or unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact as defined in section 130.00 of the Penal Law … . If none of those factors exist, the matter must be transferred to Family Court unless the prosecutor moves to prevent the transfer of the action to Family Court and establishes that extraordinary circumstances exist … . … [I]n making an extraordinary circumstances determination, courts should “look at all the circumstances of the case, as well as . . . all of the circumstances of the young person,” … . …

… [T]he court did not abuse its discretion in granting the prosecutor’s motion to prevent removal inasmuch as the prosecutor established that there are extraordinary circumstances. … [D]efendant’s prior adjudications as a juvenile delinquent or any evidence obtained as a result of those proceedings cannot be used in determining whether to grant the People’s motion (Family Ct Act § 381.2 [2] …).. Nevertheless, although it is impermissible to raise any issue related to the adjudication or evidence obtained therefrom, it is still permissible to raise ” ‘the illegal or immoral acts underlying such adjudications’ ” … .

Here … defendant was charged with participating in a violent crime, i.e., a home invasion robbery involving weapons and resulting in injuries to the victim. Moreover, despite the various services and programs provided to defendant over the last five years while defendant had been involved in the criminal justice system, defendant has made no appreciable positive response and continues to engage in escalating criminal behavior. People v Guerrero, 2025 NY Slip Op 00766, Fourth Dept 2-7-25

Practice Point: Under the “Raise the Age Act” the People can move to prevent the transfer of felony cases to Family Court where the defendant was 16 or 17 at the time of the alleged offense.

 

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