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PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff father was required to comply with a court order to post a bond even though the order was modified on appeal to eliminate the bond requirement. However plaintiff provided credible evidence he was not able to obtain the required bond, which is a defense to the contempt action:

In an order dated July 19, 2013 (hereinafter the July 2013 order), the Supreme Court granted the defendant’s motion to require the plaintiff to post a bond in the amount of $150,000, as security for the payment of the parties’ daughter’s private school tuition, to ensure his compliance with the parties’ judgment of divorce. The July 2013 order was later modified by this Court, and the provision thereof requiring the plaintiff to post a bond was deleted… . However, before this Court modified the July 2013 order, the Supreme Court, in the order now appealed from, granted that branch of the defendant’s motion which was to hold the plaintiff in contempt of court for failing to comply with the order by not posting the bond.

The order appealed from, holding the father in contempt for failing to comply with the July 2013 order by not posting a bond, is not subject to reversal based on this Court’s modification of the July 2013 order by deleting the requirement that the plaintiff post a bond, as “[o]bedience to a lawful order of the court is required even if the order is thereafter held erroneous or improvidently made or granted by the court under misapprehension or mistake” … . Moreover, this Court’s modification of the July 2013 order “does not render the instant appeal academic, since a party may be adjudicated in contempt of a court mandate which is later overturned on appeal” … .

Nevertheless, we reverse the order appealed from, since, in response to the defendant’s showing that she was prejudiced by the plaintiff’s knowing disobedience of a lawful order of the court which expressed an unequivocal mandate, the plaintiff proffered credible evidence of his inability to obtain the required bond. Inability to comply with an order is a defense to both civil and criminal contempt … . Lueker v Lueker, 2018 NY Slip Op 07421, Second Dept 11-7-18

CONTEMPT (PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))/APPEALS (CONTEMPT, PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))/BONDS (CONTEMPT, PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))/FAMILY LAW (CONTEMPT, PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT))

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STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT).

The Second Department, reversing Family Court, determined that a stipulation allowing the mother to relocate cannot be put into effect absent a hearing examining the best interests of the children:

On March 13, 2014, the parties executed a custody stipulation that was so-ordered and incorporated, but not merged, into their judgment of divorce. The parties agreed to joint custody of their two children, with the mother being the primary residential custodian. The stipulation permitted the mother to relocate within 55 miles of her current residence without the express written permission of the father or a court order. …

The Family Court should not have granted the relief requested by the mother and summarily dismissed the petition pursuant to CPLR 3211(a)(1). “No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interest” … . Thus, although the parties agreed in their stipulation that the mother could relocate to within 55 miles of her residence in Mamaroneck, such an agreement is not dispositive, but rather, is a factor to be considered along with all of the other factors a hearing court should consider when determining whether the relocation is in the best interests of the children … . Further, the father made an evidentiary showing that the mother’s proposed move might not be in the children’s best interests … . Where, as here, facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is require … . Matter of Jaimes v Gyerko, 2018 NY Slip Op 07125, Second Dept 10-24-18

FAMILY LAW (CUSTODY, RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/CUSTODY (RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/RELOCATION (FAMILY LAW, CUSTODY, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, STIPULATION, CUSTODY, RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))/STIPULATIONS (FAMILY LAW, CUSTODY, RELOCATION, STIPULATION ALLOWING MOTHER TO RELOCATE IS NOT DISPOSITIVE, HEARING TO ASSESS THE BEST INTERESTS OF THE CHILDREN REQUIRED (SECOND DEPT))

SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER’S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT).

The Second Department determined: (1) under the statutory law in force at the time, a finding of severe abuse could not be made against anyone other than a legal parent; and (2), the presumption that the mother’s  husband (John F) is the father of the children was conclusively rebutted by the allegation in the DSS petition that George R was the biological father of the children:

Although anyone legally responsible for a child’s care may be the subject of a finding of abuse (see Family Ct Act § 1012[a]), at the time of the entry of the order appealed from, a finding of severe abuse could only be made against a legal parent… . Here, since it is undisputed that George R. was not Alexandria F.’s legal parent, the Family Court should not have found that he severely abused Alexandria F. …

… [W]e disagree with the Family Court’s determination that George R. should not be treated as the father of Adalila R. and George W. R. Since the mother was married to John F. when those two children were born, there is a presumption that John F. was their father (see Domestic Relations Law § 24[1]; Family Ct Act § 417 …).

Here, DSS alleged in the petitions relating to Adalila R. and George W. R. that George R. is the father of those two children. These allegations constituted formal judicial admissions that are conclusive of the facts admitted in these proceedings … . Matter of Alexandria F. (George R.), 2018 NY Slip Op 07122, Second Dept 10-24-18

FAMILY LAW (SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER’S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT))/SERVER ABUSE (FAMILY LAW, SEVERE ABUSE FINDING COULD ONLY BE MADE AGAINST A LEGAL PARENT, PRESUMPTION MOTHER’S HUSBAND IS THE FATHER OF THE CHILDREN WAS REBUTTED (SECOND DEPT))

FAMILY COURT MADE REASONABLE EFFORTS TO REUNITE MOTHER, WHO IS INTELLECTUALLY DISABLED, WITH HER CHILD, WHO WAS REMOVED AFTER A NEGLECT FINDING, THE APPLICABILITY OF REASONABLE ACCOMMODATIONS UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) AND THE ADA’S INTERPLAY WITH NEW YORK LAW IN THIS CONTEXT EXPLAINED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissent, determined that the New York City Administration for Children’s Services (ACS) had made reasonable efforts toward family reunification in this case where mother, Stephanie L, is intellectually disabled and her child, Lacee L, after a neglect finding, was placed in kinship care. The court noted that the Americans with Disabilities Act (ADA) provides guidance in determined what constitutes reasonable accommodations under New York law:

Although ACS undoubtedly must comply with the ADA, ACS’s failure to offer or provide certain services at the time a six-month permanency reporting period ends does not necessarily mean that ACS has failed to make “reasonable efforts.” Family Court is not required to determine compliance with the ADA in the course of a permanency proceeding. The ADA’s “reasonable accommodations” test is often a time- and fact-intensive process with multiple layers of inquiry … . That adjudication is best left to separate administrative or judicial proceedings, if required … . Family Court is charged with assessing whether reasonable efforts were made to achieve the permanency goal “in accordance with the best interest and safety of the child” … . …

Here, the record reflects that Family Court was working assiduously to evaluate and accommodate Stephanie L.’s need for services tailored to her own disabilities as they related to parenting Lacee L. … [T]he ADA contains no fixed time period for compliance, and the reasonableness of efforts to provide an accommodation will vary with the facts of each case … . New York’s six-month measuring period is not a final determination as to an agencies’ efforts to provide services, but a periodic checkpoint to help ensure that at-risk children are not falling through bureaucratic fissures … . Family Court has substantial discretion to make factual determinations that ACS’ inchoate attempts to provide services have been “reasonable.” In other words, even as to accommodations that might be required under the ADA, the failure of ACS to offer or deliver such accommodations by the end of a given measuring period does not necessarily mean that ACS has violated the ADA or failed to make reasonable efforts under New York law. Matter of Lacee L. (Dekodia L.), 2018 NY Slip Op 06966, CtApp 10-18-18

FAMILY LAW (FAMILY COURT MADE REASONABLE EFFORTS TO REUNITE MOTHER, WHO IS INTELLECTUALLY DISABLED, WITH HER CHILD, WHO WAS REMOVED AFTER A NEGLECT FINDING, THE APPLICABILITY OF REASONABLE ACCOMMODATIONS UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) AND THE ADA’S INTERPLAY WITH NEW YORK LAW IN THIS CONTEXT EXPLAINED (CT APP))/REUNIFICATION (FAMILY LAW, FAMILY COURT MADE REASONABLE EFFORTS TO REUNITE MOTHER, WHO IS INTELLECTUALLY DISABLED, WITH HER CHILD, WHO WAS REMOVED AFTER A NEGLECT FINDING, THE APPLICABILITY OF REASONABLE ACCOMMODATIONS UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) AND THE ADA’S INTERPLAY WITH NEW YORK LAW IN THIS CONTEXT EXPLAINED (CT APP))/REASONABLE ACCOMMODATIONS (FAMILY LAW, FAMILY COURT MADE REASONABLE EFFORTS TO REUNITE MOTHER, WHO IS INTELLECTUALLY DISABLED, WITH HER CHILD, WHO WAS REMOVED AFTER A NEGLECT FINDING, THE APPLICABILITY OF REASONABLE ACCOMMODATIONS UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) AND THE ADA’S INTERPLAY WITH NEW YORK LAW IN THIS CONTEXT EXPLAINED (CT APP))/AMERICANS WITH DISABILITIES ACT (ADA) FAMILY COURT MADE REASONABLE EFFORTS TO REUNITE MOTHER, WHO IS INTELLECTUALLY DISABLED, WITH HER CHILD, WHO WAS REMOVED AFTER A NEGLECT FINDING, THE APPLICABILITY OF REASONABLE ACCOMMODATIONS UNDER THE AMERICANS WITH DISABILITIES ACT (ADA) AND THE ADA’S INTERPLAY WITH NEW YORK LAW IN THIS CONTEXT EXPLAINED (CT APP))

FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S VISITATION PETITION FOR FAILURE TO PROSECUTE (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s petition to complete a visitation arrangement should not have been dismissed for failure to prosecute:

We agree with the mother that Family Court’s determination … to dismiss her petition on the basis of failure to prosecute was erroneous. Although the mother was not present at the … hearing date, her absence was explained, albeit at the last minute, by her counsel, and counsel was ready to call the grandparents as witnesses as directed by the mother … . Notwithstanding counsel’s intent to do so and before the close of all proof, Family Court expressed an opinion about the mother’s ability to prove her case, never permitted the mother’s counsel to offer testimonial proof and subsequently dismissed the mother’s petition. Under these circumstances, we find that there was no failure by the mother to prosecute her petition … , and Family Court erred in dismissing it… . Accordingly, the matter must be remitted to continue the fact-finding hearing on the mother’s petition. In view of the foregoing, the mother’s remaining contentions are academic. Matter of Crisell v Fletcher, 2018 NY Slip Op 07016, Third Dept 10-18-18

FAMILY LAW (FAMILY COURT SHOULD HAVE DISMISSED MOTHER’S VISITATION PETITION FOR FAILURE TO PROSECUTE (THIRD DEPT))/FAILURE TO PROSECUTE (FAMILY COURT SHOULD HAVE DISMISSED MOTHER’S VISITATION PETITION FOR FAILURE TO PROSECUTE (THIRD DEPT))

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MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s request to relocate should have been granted:

We find that Family Court’s determination denying the mother’s relocation request and granting the parties joint legal custody is not supported by a sound and substantial basis in the record. If not permitted to relocate, the mother’s only potential resource — besides public assistance — would be the father. Given the father’s significant criminal history — which includes domestic violence against the mother — this is not a situation we can countenance. Further, there is nothing in the record to suggest that the father is willing or able to assist the mother or the child in any way. The undisputed evidence was that the father’s financial support and parenting time was limited, sporadic and offered at his whim. Indisputably, the mother has been the child’s primary caretaker, the father provided almost no financial support and his very limited relationship with the child existed only through the mother’s efforts. Moreover, given the father’s history and evidence of domestic violence, we do not believe that joint legal custody is in the child’s best interests … . We note that, although not dispositive, the trial attorney for the child did not oppose the mother’s petition or her relocation request … .

We are mindful that our holding results in the child residing a significant distance from the father. The record indicates that the mother has consistently made the effort to remain in contact with the father, to send pictures and to initiate telephone calls and visits. We discern no basis upon which to conclude that she will not continue to do so. As the child grows, such contact will become more important and have a greater impact on the father’s ability to establish and maintain a relationship with the child. Accordingly, we remit this matter to Family Court to establish an appropriate schedule for telephone calls and parenting time with the father. Matter of Fisher v Perez, 2018 NY Slip Op 07014, Third Dept 10-18-18

FAMILY LAW (MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CUSTODY (FAMILY LAW, MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))/RELOCATE (FAMILY LAW, MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EVIDENCE (FAMILY LAW, CUSTODY, RELOCATE, (MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))

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MOTHER WAS NOT GIVEN THE CHANCE TO ADEQUATELY RESPOND TO THE ALLEGATIONS FORMING THE BASIS OF FAMILY COURT’S FINDING THAT MOTHER VIOLATED A VISITATION ORDER, MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter, determined that mother never got the chance to respond to allegations which were the basis for granting father’s violation petition. Father alleged mother denied the father parenting time in violation of the temporary order of custody and visitation:

We agree with the mother that she was not given adequate notice of the allegation forming the basis of Family Court’s determination. In granting the father’s violation petition, Family Court found that the mother violated the June 2015 order by denying the father parenting time on January 22, 2017. Any denial of visitation on this specific date, however, was never alleged by the father in either his violation petition or his emergency application. Rather, this claim was raised for the first time when the parties appeared before Family Court on January 23, 2017. Moreover, Family Court did not entertain any proof with respect to the actual allegations in the father’s pleadings. In this regard, when the mother’s counsel inquired as to the purpose of the January 23, 2017 hearing, Family Court responded that it was to address specifically what transpired on January 22, 2017. Furthermore, there is no indication in the record that the father moved to amend his pleadings to add an allegation relating to the January 22, 2017 incident … or moved to conform the pleadings to the proof adduced at the hearing after the parties testified … . Matter of Pike v Bigelow, 2018 NY Slip Op 07006, Third Dept 10-18-18

FAMILY LAW (MOTHER WAS NOT GIVEN THE CHANCE TO ADEQUATELY RESPOND TO THE ALLEGATIONS FORMING THE BASIS OF FAMILY COURT’S FINDING THAT MOTHER VIOLATED A VISITATION ORDER, MATTER REMITTED (THIRD DEPT))/EVIDENCE (FAMILY LAW, MOTHER WAS NOT GIVEN THE CHANCE TO ADEQUATELY RESPOND TO THE ALLEGATIONS FORMING THE BASIS OF FAMILY COURT’S FINDING THAT MOTHER VIOLATED A VISITATION ORDER, MATTER REMITTED (THIRD DEPT))

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FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT).

The Second Department held that a hearing was necessary to determine whether the maternal grandparents had standing to seek visitation and whether such visitation would be in the child’s best interests. Family Court, based on prior proceedings that were not part of the record, had found that the maternal grandparents had standing but visitation would not be in the best interests of the child:

A grandparent may establish a statutory right to visitation where “circumstances show that conditions exist which equity would see fit to intervene” … . To determine whether visitation is appropriate, a court must first decide whether the grandparent has standing to seek visitation before deciding whether visitation is in the child’s best interests … . Standing is established where the grandparent demonstrates that there is “a sufficient existing relationship with the[] grandchild . . . [or] a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention”… . The sufficiency of the grandparent’s efforts in this regard “must always be measured against what [he or she] could reasonably have done under the circumstances” … . If standing is established, the court’s best interests determination “requires evaluation of a variety of factors, including the nature and extent of the existing relationship between the grandparent and child, the basis and reasonableness of the parent’s objections, the grandparent’s nurturing skills and attitude toward the parent[], the attorney for the child’s assessment and the child’s wishes” … . Matter of Ferguson v Weaver, 2018 NY Slip Op 07005, Third Dept 10-18-18

FAMILY LAW (VISITATION, FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT))/EVIDENCE (FAMILY LAW, VISITATION, FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT))/APPEALS (FAMILY LAW, VISITATION,  FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT))/VISITATION (FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT))

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MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT).

The Third Department, reversing and remitting the matter to make a record, determined that Family Court properly communicated with the Mississippi court in which mother had also commenced a pending custody proceeding but did not make a sufficient record in finding that Mississippi court retained jurisdiction of the custody:

The Mississippi court’s statements during the conference confirm that a child custody proceeding was still pending in that state and had been commenced prior to the mother’s Family Court proceeding, as those terms are defined by the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] … . Because the custody portion of the divorce action was still pending in Mississippi when the mother filed her custody modification petition in Family Court, the applicable provision of the UCCJEA is Domestic Relations Law § 76-e, entitled “[s]imultaneous proceedings.” Pursuant to that statute, a New York court may not exercise jurisdiction if, at the time the New York proceeding is commenced, a custody proceeding concerning the same child has been commenced in another state having jurisdiction under the UCCJEA, unless a court in the other state terminates or stays that proceeding because a New York court constitutes a more convenient forum under Domestic Relations Law § 76-f … . Procedurally, if a New York court determines that a custody proceeding has been commenced in another court in accordance with the UCCJEA, the New York court must stay its proceeding, communicate with the other court and, if the other court does not determine that New York is the more appropriate forum, dismiss the proceeding (see Domestic Relations Law § 76-e [2]). …

Although Family Court stated in its order that the Mississippi court “has retained jurisdiction,” that does not sufficiently answer the jurisdictional question under the UCCJEA. The Mississippi court, as the court where the first of two simultaneous child custody proceedings was filed, had to determine whether New York would be a more appropriate or convenient forum … . Matter of Hiles v Hiles, 2018 NY Slip Op 07004, Third Dept 10-18-18

FAMILY LAW (MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))/CUSTODY (FAMILY LAW, MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))/CIVIL PROCEDURE (FAMILY LAW, CUSTODY, MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))/UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))

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FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the respondent father had rebutted the presumption that the child’s medical condition was caused by abuse with medical evidence. Because the neglect and abuse petition relied entirely on the statutory presumption, the neglect and abuse findings were not supported:

Family Ct Act § 1046 (a) (ii) provides that petitioner may establish “a prima facie case of child abuse or neglect . . . through evidence that the child sustained an injury that would ordinarily not occur absent an act or omission of the respondent, and that the respondent was the caretaker of the child at the time that the injury occurred” … . Contrary to respondent’s contention, petitioner did so here. It was undisputed that respondent was alone with the child when she stopped breathing, and the consulting pediatrician testified to her involvement in the child’s case and the reasons that she became convinced that recent, nonaccidental trauma was the only explanation for the child’s condition.

This prima facie case did not guarantee a finding of abuse or neglect, but “establish[ed] a rebuttable presumption of parental culpability which the court may or may not accept based upon all the evidence in the record”… . Petitioner must still prove abuse or neglect by a preponderance of the evidence and, importantly, proof of “a reasonable explanation for the child’s injuries” will rebut the presumption of culpability … . As such, before relying upon the presumption set forth by Family Ct Act § 1046 (a) (ii), “the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker’s explanation in light of all the circumstances” … . Matter of Liana HH. (Christopher HH.), 2018 NY Slip Op 07001, Third Dept 10-18-18

FAMILY LAW (NEGLECT, ABUSE, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))/NEGLECT (FAMILY  LAW, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))/ABUSE (FAMILY  LAW, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, ABUSE, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))

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