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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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PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application to impose sanctions against defendant’s attorney for frivolous conduct should have have been granted:

… [T]he Supreme Court improvidently exercised its discretion in denying the plaintiff’s application to impose sanctions in the form of attorneys’ fees and expenses against the defendant’s attorney pursuant to 22 NYCRR 130-1.1. Although “[a]n agreement between spouses or prospective spouses which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability” … , the defendant, through her attorney, moved to set aside the prenuptial agreement contending, in effect, that there had been a novation such that the prenuptial agreement had been replaced by the affidavit of support. The defendant’s attorney provided no legal authority supporting this contention. Even though the court granted that branch of the plaintiff’s cross motion which was, in effect, to preclude the defendant from seeking to set aside the parties’ prenuptial agreement, the defendant’s attorney later attempted, at the nonjury trial, to question the plaintiff about the affidavit of support, arguing, in effect, that the affidavit of support replaced the prenuptial agreement. The defense then rested without presenting evidence.

The conduct of the defendant’s attorney was frivolous within the meaning of 22 NYCRR 130-1.1(c). The defendant’s attorney continued to advance his contention relating to the affidavit of support, which was completely without merit in law, in contravention of the Supreme Court’s prior ruling. Moreover, that contention could not be supported by a reasonable argument for an extension, modification, or reversal of existing law, and the conduct of the defendant’s attorney appears to have been undertaken primarily to delay or prolong the resolution of the litigation … . Tamburello v Tamburello, 2018 NY Slip Op 06961, Second Dept 10-17-18

FAMILY LAW (PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/ATTORNEYS (SANCTIONS, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/FRIVOLOUS CONDUCT (ATTORNEYS, SANCTIONS, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))

PAYOR OF VOLUNTARY SPOUSAL SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the voluntary support and legal-obligations payments made by husband to wife should have been credited against the arrears owed by him:

Voluntary payments made for the support and legal obligations of a spouse should be applied as a credit to the calculation of arrears owed by the payor spouse… . When the payor spouse relieves the other spouse from paying obligations for which the other spouse would be responsible, such payments must be considered as satisfying, in whole or part, maintenance and/or child support … . Here, the defendant is entitled to credits against his maintenance obligation as established in the judgment of divorce with regard to the plaintiff’s share of such expenses such as mortgage, real estate taxes, and automobile insurance payments … .

We disagree with the plaintiff’s contention that the defendant’s voluntary payments made pursuant to the preliminary conference order, which does not specifically enumerate the payments to be made, cannot qualify as “payments of pendente lite spousal maintenance actually made pursuant to Court Order.” The preliminary conference order, as so-ordered by the Supreme Court, plainly contemplated that the defendant would continue to make voluntary payments for the benefit of the plaintiff and the parties’ children. To deny the payor spouse a credit for payments made on account of the other spouse’s expenses would not only be inequitable by providing a windfall for the benefitted spouse, but it would also discourage voluntary support payments during the pendency of matrimonial actions and likely cause a precipitous rise of pendente lite motion practice by nonmonied spouses. Just as a party who unnecessarily prolongs a matrimonial action should not be rewarded, common sense dictates that a party who avoids unnecessary motion practice and preserves assets and time by agreeing to voluntarily pay the expenses of the other party should not be punished by being denied appropriate credits therefor. Stern v Stern, 2018 NY Slip Op 06959, Second Dept 10-18-18

FAMILY LAW (PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/SUPPORT (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/VOLUNTARY SUPPORT PAYMENTS (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/SPOUSAL SUPPORT (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/MAINTENANCE (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))

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ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, over an extensive dissent, determined that an adjudicated juvenile delinquent was not eligible for special immigrant juvenile status (SIJS):

On the instant appeal, this Court is presented with the issue of whether the Family Court properly denied the renewed motion of Keanu S. (hereinafter the child) for the issuance of an order declaring that he is dependent on the Family Court and making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). Specifically, the Family Court rejected the child’s contention that he was dependent upon a juvenile court, within the meaning of 8 USC § 1101(a)(27)(J)(i), by virtue of his placement in the custody of the Commissioner of Social Services of the City of New York following his adjudication as a juvenile delinquent. … [W]e agree with the Family Court’s determination and conclude that such a placement does not satisfy the requirement of dependency under the statute. * * *

We hold that the child herein is not an intended beneficiary of the SIJS provisions. He was not placed in the custody of the Commissioner of Social Services due to his status as an abused, neglected, or abandoned child. Instead, he was placed in the custody of the Commissioner of Social Services after committing acts which, if committed by an adult, would have constituted serious crimes. His violent acts and misconduct have resulted in painful and terrible consequences to his victims. In fact, even while under probation, his encounters with the law persisted. In effect, the child attempts to utilize his wrongdoings and the resultant juvenile delinquency adjudication as a conduit or a vehicle to meet the dependency requirement for SIJS. Such a determination is in conflict with the primary intent of Congress in enacting the SIJS scheme, namely, to protect abused, neglected, and abandoned immigrant children. We cannot fathom that Congress envisioned, intended, or proposed that a child could satisfy this requirement by committing acts which, if committed by adults, would constitute crimes, so as to warrant a court’s involvement or the legal commitment to an individual appointed by a state or juvenile court. Matter of Keanu S., 2018 NY Slip Op 06918, Second Dept 10-17-18

FAMILY LAW (ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/CRIMINAL LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS)  ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/JUVENILE DELINQUENT (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT).

The Second Department, remitting the matter for a hearing on equitable estoppel in this paternity proceeding, determined that generic marker testing should not have been ordered without first resolving the equitable estoppel issue:

Family Court Act § 532 provides that, in a proceeding to establish paternity, “on the court’s own motion or the motion of any party, [the court] shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests” … . However, “no paternity test shall be ordered upon a written finding by the court that it is not in the best interests of the child on the basis of, inter alia, equitable estoppel” … . “Where a party to a paternity proceeding raises an issue of equitable estoppel, that issue must be resolved before any biological testing is ordered” … .

Here, the Family Court should not have directed the petitioner and the child to submit to genetic marker testing before resolving the issue of equitable estoppel … . We remit the matter … for a hearing on the issue of equitable estoppel. If, and only if, the court determines that equitable estoppel should not be applied based upon the child’s best interests, then the court should direct genetic marker or DNA tests and reach a determination thereon … . Matter of George C.S. v Kerry-Ann B., 2018 NY Slip Op 06917, Second Dept 10-17-18

FAMILY LAW (IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))/PATERNITY (IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))/GENETIC MARKER TESTING (IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))/DNA (FAMILY LAW, IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))/EQUITABLE ESTOPPEL (FAMILY LAW, IN THIS PATERNITY PROCEEDING THE COURT SHOULD NOT HAVE ORDERED GENETIC MARKER TESTING WITHOUT FIRST RESOLVING THE ISSUE OF EQUITABLE ESTOPPEL (SECOND DEPT))

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