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FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined father had been denied his right to counsel in this modification of custody proceeding for the reasons explained in Matter of Hensley v DeMun, 163 AD3d 1100, 1101 [2018]:

For the reasons stated in Matter of Hensley v DeMun (supra) – the appeal by the father regarding Supreme Court’s resolution of the two petitions filed by the mother of the nonsubject child – we find that the father was denied the right to counsel, and we must therefore reverse and remit for further proceedings. Matter of DeMun v DeMun, 2018 NY Slip Op 07987,  Third Dept 11-21-18

FAMILY LAW (FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT))/ATTORNEYS (FAMILY LAW, FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FATHER DENIED HIS RIGHT TO COUNSEL IN THIS MODIFICATION OF CUSTODY PROCEEDING (THIRD DEPT))

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APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that the appeal in this child neglect/temporary matter removal had been rendered moot by a disposition which returned the child and the exception to the mootness doctrine, which would allow consideration on appeal, did not apply. The dissent argued that the exception to the mootness doctrine was applicable:

Family Court … rejected respondent’s offer to consent to the continued removal without also admitting that the removal was “necessary to avoid imminent risk to the child’s life or health”… . Family Court made such a finding at the conclusion of the hearing and issued an order continuing the temporary removal. …

Following the issuance of the appealed-from order, respondent agreed to a resolution in which the violation petition was withdrawn, the neglect petition was adjourned in contemplation of dismissal and the child returned to respondent’s care. Contrary to her contention, these developments rendered her appeal moot…  She further argues that this case presents an issue that is “likely to recur, typically evades review, and raises a substantial and novel question” so as to fall within the exception to the mootness doctrine, pointing to Family Court’s refusal to allow her to waive the removal hearing and consent to the continued removal absent an admission of imminent risk … . Appeals from temporary removal orders are often rendered moot when the petition is disposed of before an appeal on the temporary order is decided … , but issues arising from such orders need not evade review considering the preference available for appeals from orders issued under Family Ct Act article 10 …  More importantly, the law is clear that any order of temporary removal must include a finding that removal “is necessary to avoid imminent risk to the child’s life or health” … . The contention that this requirement can be waived at respondent’s convenience is not “sufficiently substantial to warrant [invoking] the exception to the mootness doctrine” … .

From the dissent:

While we agree with the majority that this appeal is moot, we find that the exception to the mootness doctrine applies. The substantive issue presented is whether a respondent in a proceeding under Family Ct Act article 10, part 2 may consent to the temporary removal of his or her child. The record shows that Family Court interpreted both Family Court §§ 1022 and 1027 as requiring the court to make a factual finding that a child is in imminent danger before issuing a temporary removal order. That is certainly the case in a contested proceeding… . The distinct question here, however, is whether a parent may consent to the temporary removal, obviating the need for either an admission of wrongdoing or a hearing eliciting facts of imminent risk as required by Family Court. Given the court’s position, it is evident that the issue will readily recur in proceedings before that court. Moreover, appeals from temporary removal orders are routinely found to be moot because a disposition is reached before an appeal is decided … . Because the procedures surrounding the removal of children from their parents are manifestly of public importance, we consider the consent issue important to resolve. It also appears to be novel. As such, we are persuaded that the exception to the mootness doctrine should be applied … . Matter of Tyrell FF. (Jaquasisa GG.), 2018 NY Slip Op 07985, Third Dept 11-21-18

FAMILY LAW (APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT))/APPEALS (FAMILY LAW, APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT))/MOOTNESS DOCTRINE, EXCEPTION TO (APPEALS, FAMILY LAW, APPEAL RENDERED MOOT BY THE RETURN OF THE CHILD IN THIS CHILD NEGLECT – TEMPORARY REMOVAL PROCEEDING AND THE EXCEPTION TO THE MOOTNESS DOCTRINE DID NOT APPLY, TWO JUSTICE DISSENT ARGUED A NOVEL ISSUE HAD BEEN RAISED CONCERNING CONSENT TO THE TEMPORARY REMOVAL AND THE EXCEPTION TO THE MOOTNESS DOCTRINE WAS APPLICABLE (THIRD DEPT))

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FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT).

The Second Department, reversing Family Court, determined it was in the best interests of the child to free the child for adoption without the consent of father. Mother’s parental rights had terminated, but the court-appointed evaluator testified the relationship with father was positive and should not be terminated. The Second Department held that other evidence which supported freeing the child for adoption was not given sufficient weight:

“This Court will not disturb a Family Court’s determination regarding the best interests of the child unless it lacks a sound and substantial basis in the record” … . Here, the hearing court’s finding that it would be in the best interests of the child to remain in foster care instead of being freed for adoption lacks such a sound and substantial basis. The finding was based primarily on the opinions offered by the court-appointed evaluator, who recommended that the foster mother have custody of the child because she raised him since he was an infant, she has an “extremely close bond” with him, and she is able to take care of the child’s special needs. While the evaluator also opined that the child has a “very positive relationship” with the father, and that it would not be in the best interests of the child to sever that relationship by freeing the child for adoption, the evaluator conceded that the foster mother and the father view each other with “significant distrust,” that the child “hears conflicting information” from the foster mother and the father, that the child “senses their anger and conflict,” and that the conflict was “very stre not determinative … . Based on the record before us, we find that the hearing court gave undue weight to the evaluator’s conclusions with regard to the benefits of the child’s relationship with the father … and failed to accord sufficient weight to the impact on the child of long-term foster care, which would continue to expose him to the distrust between the foster mother and the father, and deprive the child of “a permanent, nurturing family relationship” …  .

Moreover, the Family Court did not give sufficient weight to testimony from the assigned case planner and the foster mother that the child repeatedly had contact with the birth mother during his visits with the father, in violation of the court’s directive precluding such contact with the birth mother. Similarly, the evaluator did not consider either the possibility that the father was exposing the child to the birth mother or the effects on the child of continued contact with the birth mother, information vital to assessing the best interests of the child. Matter of Jasiah T.-V. S.J. (Joshua W.–Shatesse J.), 2018 NY Slip Op 08020, Second Dept 11-21-18

FAMILY LAW (FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))/EVIDENCE (FAMILY LAW, FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))/SOUND AND SUBSTANTIAL BASIS (FAMILY COURT’S FINDING THAT FREEING THE CHILD FOR ADOPTION WOULD NOT BE IN THE CHILD’S BEST INTERESTS WAS NOT SUPPORTED BY A SOUND AND SUBSTANTIAL BASIS (SECOND DEPT))

FATHER, WHO WAS INCARCERATED, SHOULD HAVE BEEN PRODUCED FOR THE PROCEEDING TO APPOINT A GUARDIAN FOR THE CHILD, NEW HEARING ORDERED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined father, who was incarcerated, had a fundamental right to be heard in the guardianship proceeding and shouild have been produced in court:

The order, after a hearing at which the father was neither present nor represented, and upon the mother’s consent, granted the petition of Krystle L. B. to be appointed permanent guardian of the subject child. …

An incarcerated parent has a fundamental right to be heard in a proceeding impacting the care and control of his or her child … . Here, the incarcerated father’s rights were violated when the Family Court elected to hear and determine the guardianship petition without producing the father in court or affording him an opportunity to be heard.

Accordingly, we reverse the order appealed from, and remit the matter … for a hearing at which the father’s constitutional right to be heard will not be abridged and a new determination thereafter on the guardianship petition. Matter of Krystle L.B. v Crystal L.W., 2018 NY Slip Op 08019, Second Dept 11-21-18

FAMILY LAW (FATHER, WHO WAS INCARCERATED, SHOULD HAVE BEEN PRODUCED FOR THE PROCEEDING TO APPOINT A GUARDIAN FOR THE CHILD, NEW HEARING ORDERED (SECOND DEPT))/GUARDIANSHIP (FATHER, WHO WAS INCARCERATED, SHOULD HAVE BEEN PRODUCED FOR THE PROCEEDING TO APPOINT A GUARDIAN FOR THE CHILD, NEW HEARING ORDERED (SECOND DEPT))

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SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT).

The Second Department, modifying (reversing) Supreme Court in this action for divorce, determined that defendant’s motion to preclude plaintiff from introducing certain evidence at trial because of the failure to comply with discovery orders should have been granted. Defendant’s request for attorney’s fees was properly denied, however, because plaintiff is the less-monied spouse:

A court may prohibit a party “from producing in evidence designated things or items of testimony” if the party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126[2] …). Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious … . The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time … .

Here, the defendant demonstrated that the plaintiff failed to comply with court-ordered discovery over an extended period of time. The willful and contumacious character of the plaintiff’s conduct may be inferred from her failure to respond to the defendant’s letter … , despite two court orders directing her to do so, and her failure to proffer any excuse for her failure. Accordingly, that branch of the defendant’s motion which was to preclude the plaintiff from producing physical evidence or testimony at trial relating to certain limited items previously requested but not disclosed should have been granted.

We agree, however, with the Supreme Court’s denial of that branch of the defendant’s motion which was to direct the plaintiff to pay interim counsel fees in the sum of $5,000, since the plaintiff is the less-monied spouse … . Maliah-Dupass v Dupass, 2018 NY Slip Op 08018, Second Dept 11-21-18

FAMILY LAW (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/DIVORCE (SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CIVIL PROCEDURE (DISCOVERY, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/CPLR 3126 (DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/EVIDENCE (CIVIL PROCEDURE, PRECLUSION, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))/ATTORNEYS (FAMILY LAW, DIVORCE, SUPREME COURT SHOULD HAVE PRECLUDED DEFENDANT FROM INTRODUCING CERTAIN EVIDENCE AT TRIAL BECAUSE OF THE FAILURE TO COMPLY WITH DISCOVERY ORDERS, HOWEVER, SUPREME COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR ATTORNEY’S FEES BECAUSE PLAINTIFF IS THE LESS-MONIED SPOUSE (SECOND DEPT))

FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT). ​

The First Department, reversing Family Court, determined that father’s petition to modify custody should not have been denied without a hearing. Mother had relocated to Florida without father’s consent or the permission of the court:

Family Court correctly determined that the mother’s testimony about her unilateral relocation constituted a change in circumstances, triggering an inquiry into whether the child remaining in the mother’s custody in Florida is in the child’s best interests … . However, the court abused its discretion in making a final determination on that issue without a full hearing at which the parties and the child’s attorney had an opportunity to present relevant evidence. The question of a child’s relocation out of state necessarily requires “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 … . [C]ustody and visitation decisions should be made with a view toward minimizing the parents’ discomfort and maximizing the child’s prospects of a stable, comfortable and happy life”… . Relevant factors include the parties’ good faith in requesting or opposing the move, the child’s attachments to each parent, the quality of the life-style that the child would have if the proposed move were permitted or denied, the effect that the move may have on any extended family relationships, and whether a visitation plan can be achieved that permits the noncustodial parent to maintain a meaningful parent-child relationship (id.). In this case, since the father had raised concerns in his petition about the child’s education, the parties should have had the opportunity to present evidence about this, in addition to other relevant factors. Matter of Michael B. v Latasha T.-M., 2018 NY Slip Op 07929, First Dept 11-20-18

FAMILY LAW (RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/CUSTODY (FAMILY LAW, RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/RELOCATION (FAMILY LAW, CUSTODY, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))

FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT).

The First Department, reversing Family Court, determined that father’s petition to modify custody should not have been denied without a hearing. Mother had relocated to Florida without father’s consent or the permission of the court:

Family Court correctly determined that the mother’s testimony about her unilateral relocation constituted a change in circumstances, triggering an inquiry into whether the child remaining in the mother’s custody in Florida is in the child’s best interests … . However, the court abused its discretion in making a final determination on that issue without a full hearing at which the parties and the child’s attorney had an opportunity to present relevant evidence. The question of a child’s relocation out of state necessarily requires “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 … . [C]ustody and visitation decisions should be made with a view toward minimizing the parents’ discomfort and maximizing the child’s prospects of a stable, comfortable and happy life”… . Relevant factors include the parties’ good faith in requesting or opposing the move, the child’s attachments to each parent, the quality of the life-style that the child would have if the proposed move were permitted or denied, the effect that the move may have on any extended family relationships, and whether a visitation plan can be achieved that permits the noncustodial parent to maintain a meaningful parent-child relationship (id.). In this case, since the father had raised concerns in his petition about the child’s education, the parties should have had the opportunity to present evidence about this, in addition to other relevant factors. Matter of Michael B. v Latasha T.-M., 2018 NY Slip Op 07929, First Dept 11-20-18

FAMILY LAW (RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/CUSTODY (FAMILY LAW, RELOCATION, CUSTODY MODIFICATION, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))/RELOCATION (FAMILY LAW, CUSTODY, FATHER’S PETITION TO MODIFY CUSTODY SHOULD NOT HAVE BEEN DENIED, MOTHER HAD RELOCATED TO FLORIDA WITHOUT FATHER’S CONSENT AND WITHOUT THE PERMISSION OF THE COURT (FIRST DEPT))

FAMILY COURT ABUSED ITS DISCRETION IN ORDERING UNSUPERVISED VISITATION WITH CHILDREN WHO HAD BEEN REMOVED FROM THE PARENTS’ CARE, THERE WAS NO EVIDENCE OF A CHANGE IN CIRCUMSTANCES SINCE THE DENIAL OF THE PARENTS’ APPLICATION TO HAVE THE CHILDREN RETURNED TO THEM (FIRST DEPT).

The First Department, reversing Family Court, determined the record did not support ordering unsupervised visitation with the parents:

Respondents continue to refuse to admit or even to acknowledge the possibility that the children, all of whom tested positive for sexually transmitted diseases (STD), were sexually abused. Even as recently as May 2018, and although they ostensibly had participated in various services and counseling, the parents continued to offer implausible explanations for the children’s medical condition. …

In November 2017, Family Court (Ta-Tanisha James, J.) denied the parents’ application pursuant to Family Court Act § 1028 to have the children returned to their care. Since then there has been no change in the circumstances upon which the denial of that application was based. The court (Frias-Colon, J.) issued the instant order without benefit of a full fact-finding hearing, apparently to avoid delay and stagnation in the proceeding. This justification is inadequate. The permanency reports and treatment updates before the court reiterated the parents’ ongoing inability to acknowledge that their children had been sexually abused and did not advocate unsupervised visitation. In view of the gravity of the allegations and the parents’ attitude toward, and role in, the events at issue, we find that the court abused its discretion in ordering unsupervised visitation on the record before it. Matter of Abass D. (Mamadou D.–Sitan D.), 2018 NY Slip Op 07968, First Dept 11-20-18

FAMILY LAW (FAMILY COURT ABUSED ITS DISCRETION IN ORDERING UNSUPERVISED VISITATION WITH CHILDREN WHO HAD BEEN REMOVED FROM THE PARENTS’ CARE, THERE WAS NO EVIDENCE OF A CHANGE IN CIRCUMSTANCES SINCE THE DENIAL OF THE PARENTS’ APPLICATION TO HAVE THE CHILDREN RETURNED TO THEM (FIRST DEPT))/VISITATION (FAMILY COURT ABUSED ITS DISCRETION IN ORDERING UNSUPERVISED VISITATION WITH CHILDREN WHO HAD BEEN REMOVED FROM THE PARENTS’ CARE, THERE WAS NO EVIDENCE OF A CHANGE IN CIRCUMSTANCES SINCE THE DENIAL OF THE PARENTS’ APPLICATION TO HAVE THE CHILDREN RETURNED TO THEM (FIRST DEPT))

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FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT). ​

The First Department, reversing Family Court, determined that Family Court did not have enough evidence before it to justify denying mother’s petition to modify custody. Family Court relied upon a hearsay letter from the NYS Office of Children and Family Services Child Abuse and Maltreatment Register to the effect that certain allegations against the father were unfounded or unsubstantiated:

First, the Family Court improperly denied the mother an opportunity to respond to the “unfounded” letter, which was hearsay. Moreover, although the father apparently had it in his possession for approximately two months, he did not provide it to her until the September 20 court appearance.

Second, * * * even if the “unsubstantiated” letter referred to the report made by the older child’s school social worker, that letter did not disprove the mother’s uncontroverted assertion that, both before and after that report was made, the children had expressed fear of and a desire not to visit with the father. …

Finally, to the extent that Family Court was making a determination that the parties’ child’s fear of his father was unfounded based on the “unsubstantiated” letter, and that modification was therefore not in the child’s best interests, this was error. Since this was the parties’ first appearance before this judge, the court did not have sufficient information about the parties and their child to make a comprehensive and independent determination about the child’s best interests … . Matter of Juliette S. v Tykym S., 2018 NY Slip Op 07960, First Dept 11-20-18

FAMILY LAW (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/EVIDENCE (FAMILY LAW, FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/CUSTODY  (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/ABUSE (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))/HEARSAY  (FAMILY COURT DID NOT HAVE ENOUGH EVIDENCE TO WARRANT DENIAL OF MOTHER’S PETITION TO MODIFY CUSTODY, A HEARSAY LETTER FROM THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES CHILD ABUSE AND MALTREATMENT REGISTER, FINDING CERTAIN ALLEGATIONS AGAINST FATHER TO BE UNFOUNDED, WAS INSUFFICIENT (FIRST DEPT))

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FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined father was denied his right to counsel in this maintenance, child support, eduction and medical expense arrears proceeding:

We agree with the father that he was denied his right to counsel at the hearing to determine whether he was in willful violation of the support order … . Supreme Court “failed to inform the father of his right to have counsel assigned if he could not afford to retain an attorney” … , and failed to grant the father an adjournment at the outset of the second day of the hearing when he requested the assistance of counsel … . To the extent that the father thereafter chose to proceed pro se, the court also failed to “engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel” … . Villella v Villella, 2018 NY Slip Op 07917, Fourth Dept 11-16-18

FAMILY LAW (ATTORNEYS, FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT))/ATTORNEYS (FAMILY LAW, RIGHT TO COUNSEL, FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FATHER DEPRIVED OF HIS RIGHT TO COUNSEL IN THIS MAINTENANCE AND SUPPORT ARREARS PROCEEDING, SUPREME COURT REVERSED (FOURTH DEPT))

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