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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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FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT).

The Fourth Department reversed Family Court’s custody ruling because the ruling was not supported by factual findings. The matter was remitted:

It is “well established that the court is obligated to set forth those facts essential to its decision’ ” (…see CPLR 4213 [b]; Family Ct Act § 165 [a]). Here, the court utterly failed to follow that well-established rule inasmuch as it made no findings to support its determination. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . We therefore reverse the order, reinstate the mother’s petition, and remit the matter to Family Court to make a determination on the petitions, including specific findings as to a change in circumstances and the best interests of the child, following an additional hearing if necessary … . Matter of Brown v Orr, 2018 NY Slip Op 07905, Fourth Dept 11-16-28

FAMILY LAW (CUSTODY, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/APPEALS (FAMILY LAW, CUSTODY, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, APPEALS, FAMILY COURT DID NOT MAKE FACTUAL FINDINGS IN SUPPORT OF ITS GRANT OF SOLE CUSTODY, MATTER REMITTED (FOURTH DEPT))

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EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT).

The Second Department determined the evidence did not support the finding that mother neglected the child by failing to provide adequate shelter:

We agree with the Family Court’s finding that the petitioner established, by a preponderance of the evidence, that the mother failed to provide the child with proper supervision and guardianship. The evidence demonstrated that she placed the child in near proximity to narcotics and to the very dangerous activity of narcotics trafficking, which posed an imminent danger to the child’s physical, mental, and emotional well-being… .

However, we disagree with the Family Court’s finding that the petitioner established, by a preponderance of the evidence, that the mother neglected the child by failing to supply the child with adequate shelter based on the unsanitary conditions of the home. While the evidence adduced at the fact-finding hearing demonstrated that the home was in a general state of disarray, it did not establish unsanitary or unsafe conditions such that the child’s physical, mental, or emotional condition was impaired or in imminent danger of impairment … . Matter of Majesty M. (Brandy P.), 2018 NY Slip Op 07726, Second Dept 11-14-18

FAMILY LAW (NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))/NEGLECT (EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT))

,

FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT).

The Second Department determined Family Court should not have left it to the parties to work out mother’s supervised therapeutic parental access:

Here, the Family Court’s determination that there had been a change in circumstances and that it was in the children’s best interests to award the father sole legal and residential custody, with the mother’s access limited to supervised therapeutic parental access is supported by a sound and substantial basis in the record and, thus, will not be disturbed … .

However, the Family Court should have set forth in its order a schedule and designated a provider for supervised therapeutic parental access, rather than implicitly delegating the resolution of those issues to the parties … . Accordingly, we remit the matter to the Family Court, Orange County, to forthwith set an appropriate schedule and select a provider for the mother’s supervised therapeutic parental access with the children. Matter of Thomas R.K. v Tamara S.K., 2018 NY Slip Op 07725, Second Dept 11-14-18

FAMILY LAW (FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT))/JUDGES (FAMILY LAW, FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT))/DELEGATION OF JUDICIAL DUTIES (FAMILY COURT SHOULD NOT HAVE LEFT SCHEDULING SUPERVISED THERAPEUTIC PARENTAL ACCESS TO THE PARTIES (SECOND DEPT))

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LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT).

The Second Department affirmed Family Court’s denial of father’s petition for downward modification of maintenance and support and the rejection of father’s claim he was denied effective assistance of counsel. The court noted that father did not demonstrate he was not at fault for losing his job and that, because father did not have a right to counsel for these proceedings, he was required to show extraordinary circumstances in support of his ineffective assistance claim:

A party seeking a downward modification of his or her spousal maintenance and child support obligations set forth in a judgment of divorce must establish a substantial change in circumstances … . Loss of employment may constitute a substantial change in circumstances where the termination occurred through no fault of the party seeking modification and he or she diligently sought re-employment commensurate with his or her earning capacity… . Here, the father failed to establish that the termination of his employment did not occur though his own fault … , or that he diligently sought new employment commensurate with his qualifications and experience. Accordingly, we agree with the Family Court’s denial of the father’s objections to the Support Magistrate’s finding that the father was not entitled to a downward modification of his support obligations… .

The father contends that he was deprived of the effective assistance of counsel. Since the father did not have the right to assigned counsel in this support modification proceeding… , he must establish the existence of extraordinary circumstances in order for his claim of ineffective assistance of counsel to be entertained… . Here, the father failed to establish the existence of any extraordinary circumstances to warrant entertaining such a claim … . Matter of Berg v Berg, 2018 NY Slip Op 07720, Second Dept 11-14-18

FAMILY LAW (MAINTENANCE, SUPPORT, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/MAINTENANCE (FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/SUPPORT FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/ATTORNEYS (FAMILY LAW, INEFFECTIVE ASSISTANCE, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))/RIGHT TO COUNSEL (FAMILY LAW, INEFFECTIVE ASSISTANCE, LOSS OF EMPLOYMENT DID NOT JUSTIFY DOWNWARD MODIFICATION OF MAINTENANCE AND SUPPORT, NO SHOWING FATHER WAS NOT AT FAULT FOR LOSING THE JOB, BECAUSE FATHER DID NOT HAVE A RIGHT TO COUNSEL IN THESE PROCEEDINGS, HIS INEFFECTIVE ASSISTANCE ARGUMENT MUST BE BASED UPON EXTRAORDINARY CIRCUMSTANCES WHICH WERE NOT DEMONSTRATED (SECOND DEPT))

ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing Family Court, determined that the Family Court judge exhibited bias against the father in this maintenance and support arrears proceeding and the matter was remitted to Family Court before a different judge. Although father had completed the period of incarceration imposed, the commitment order was deemed appealable because of the stigma attached to violating support obligations. The court noted that father should have pbjected and moved to recuse the judge to preserve the bias claim, but the court considered the argument in the interest of justice:

“[W]hen a claim of bias is raised, the inquiry on appeal is limited to whether the judge’s bias, if any, unjustly affected the result to the detriment of the complaining party'” … . Here, the record reflects that when the parties appeared before the Family Court Judge, the Judge took an adversarial stance toward the father and made numerous improper remarks to him … . The Judge told the father, among other things, that he “symbolizes everything that’s wrong with the world today,” and that he was “[s]elfish, self-interested, [and] self-seeking.” The Judge repeated similar remarks multiple times during the proceeding. The Judge also called the father “lazy” and “arrogant,” and remarked that he was “the last guy that [the Judge would] want to be in a fox hole with” because he would “fold like a cheap suit.” The Judge compared the father’s accumulation of arrears to “an arsonist that starts a fire that kills one person, that kills ten.” Additionally, the Judge made the matter personal by comparing the father’s experiences to the Judge’s own. For instance, the Judge described his own past misfortune, and detailed how he picked himself up to became a judge. At the conclusion of the proceeding, the Judge committed the father to four times the period of incarceration recommended by the Support Magistrate. Under the circumstances, the bias of the Family Court Judge apparently unjustly affected the result of the proceeding to the detriment of the father. Matter of Berg v Berg, 2018 NY Slip Op 07719, Second Dept 11-14-18

FAMILY LAW (JUDICIAL BIAS, APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/JUDGES (BIAS, APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (JUDICIAL BIAS, PRESERVATION, ACADEMIC APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/STIGMA (APPEALS, FAMILY LAW, ACADEMIC APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/INTEREST OF JUSTICE  (JUDICIAL BIAS, APPEALS, ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/BIAS (JUDGES, FAMILY LAW, APPEALS, , ALTHOUGH FATHER HAD COMPLETED THE PERIOD OF INCARCERATION IMPOSED IN THIS SUPPORT ARREARS PROCEEDING, THE COMMITMENT ORDER IS APPEALABLE BECAUSE OF THE STIGMA ATTACHED TO VIOLATING SUPPORT ALLEGATIONS, ALTHOUGH THE JUDICIAL BIAS ARGUMENT WAS NOT PRESERVED, THE SECOND DEPARTMENT CONSIDERED THE ISSUE AND REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))

DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT).

The First Department, remanding the matter for a hearing in Family Court, noted that the final custody order did not make any provision for visitation:

… [T]he final custody order did not make any provision for visitation, and the father’s pro se motion explicitly sought visitation with the child. Family Court implicitly denied this request without providing any rationale. Visitation is a joint right of the child and noncustodial parent and, absent “exceptional circumstances,” it “follows almost as a matter of course,” and is presumed to be in the child’s best interest … . The record of the custody hearing established that the father had regular unsupervised and overnight visitation with the child throughout the prolonged custody proceedings, although there were some late pickups and missed visits in the months before the custody order was issued. We note the child’s attorney represents that the child strongly wishes to resume visits with the father … . Matter of Jolanda K. v Damian B., 2018 NY Slip Op 07675, First Dept 11-13-18

FAMILY LAW (VISITATION, DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT))/VISITATION (FAMILY LAW, DESPITE FATHER’S PRO SE MOTION SEEKING VISITATION, NO PROVISION FOR VISITATION WAS MADE IN THE CUSTODY ORDER, MATTER REMANDED FOR A HEARING (FIRST DEPT))

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