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FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined that, although father left his job in Virginia voluntarily, his petition to modify his support after taking a lower-paying job in New York should have been granted. Father left the better paying job to be closer to his son, who had recently moved with his mother from Virginia to New York:

“It is well settled that a loss of employment may constitute a change in circumstances justifying a downward modification of [child support] obligations where [such loss] occurred through no fault of the [party seeking modification] and the [party] has diligently sought re-employment” … . As a general rule, a parent who voluntarily quits a job will not be deemed without fault in losing such employment… . Nevertheless, that general rule should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason, such as the need to live closer to a child … . As one court has explained, a “parent who chooses to leave his [or her] employment rather than [live] hundreds of miles away from his [or her] children is not voluntarily unemployed or underemployed. Instead, he [or she] is a loving parent attempting to do the right thing for his [or her] children. To punish such a parent by requiring higher child support . . . is neither good law nor good policy” … . Matter of Parmenter v Nash, 2018 NY Slip Op 07553, Fourth Dept 11-9-18

FAMILY LAW (SUPPORT, FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT))/SUPPORT (FAMILY LAW, FATHER’S PETITION TO MODIFY SUPPORT SHOULD HAVE BEEN GRANTED, ALTHOUGH FATHER VOLUNTARILY LEFT A BETTER PAYING JOB IN VIRGINIA, HE DID SO TO BE NEARER TO HIS SON WHO HAD MOVED WITH MOTHER TO NEW YORK FROM VIRGINIA (FOURTH DEPT))

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FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE FOR THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT).

The Second Department determined Family Court properly found Dennis T was a person legally responsible for the child Steven L. The court agreed with Family Court’s finding of abuse against three persons using the Family Court Act evidence rule analogous to res ipsa loquitur:

“A person is a proper respondent in an article 10 proceeding as an other person legally responsible for the child’s care’ if that person acts as the functional equivalent of a parent in a familial or household setting”… . “Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case” … . “Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court in determining whether a respondent fits within the catch-all category of section 1012 (g)” … . * * *

Section 1046(a)(ii) of the Family Court Act “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . “The statute also permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred” … . “In such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together” … . “[Once] the petitioner establishes a prima facie case of abuse the burden of going forward shifts to respondents to rebut the evidence of . . . culpability, although the burden of proof always remains with the petitioner” … . Matter of Unity T. (Dennis T.), 2018 NY Slip Op 07437, Second Dept 11-7-18

FAMILY LAW (ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/ABUSE (FAMILY LAW, EVIDENCE,  FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/EVIDENCE (FAMILY LAW, ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))/PERSON LEGALLY RESPONSIBLE (FAMILY LAW, ABUSE, FINDING THAT DENNIS T IS A PERSON LEGALLY RESPONSIBLE THE CARE OF A CHILD WAS PROPER, EVIDENTIARY RULE ANALOGOUS TO RES IPSA LOQUITUR SUPPORTED THE ABUSE FINDING (SECOND DEPT))

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PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the proceeding which led to the revocation of appellant’s Adjournment in Contemplation of Dismissal (ACD) and adjudging him a person in need of supervision (PINS) was fatally flawed because appellant was never informed of his right to remain silent:

Although the appellant’s term of custody has expired by the terms of the order appealed from, the order is not academic in light of the enduring consequences which might flow from the finding that the appellant violated the terms of the ACD order … .

Family Court Act § 741(a) provides, in relevant part: “[a]t the initial appearance of a respondent in a proceeding and at the commencement of any hearing under this article, the respondent and his or her parent or other person legally responsible for his or her care shall be advised of the respondent’s right to remain silent” … . The failure to apprise a respondent of the right to remain silent constitutes reversible error, even if the respondent consents to the disposition in the presence of counsel … or fails to seek to withdraw his or her admissions based on the failure … .

Here, the Family Court never apprised the appellant of his right to remain silent—not at the initial appearance on the PINS petition, nor prior to accepting his admission to the allegations in the petition and entering the ACD order, nor at the fact-finding and dispositional hearing … , addressing the alleged violation of the ACD order. The court’s failure to advise the appellant of his right to remain silent cannot be considered harmless error … , as the court never advised the appellant of his right to remain silent at any time during the course of this proceeding or the original PINS proceeding. Thus, the order must be reversed … . Matter of Tyler D., 2018 NY Slip Op 07427, Second Dept 11-7-18

FAMILY LAW (PINS, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/PERSON IN NEED OF SUPERVISION (PINS) (PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/CONSTITUTIONAL LAW (FAMILY LAW, RIGHT TO REMAIN SILENT, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/RIGHT TO REMAIN SILENT (FAMILY LAW, PINS, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))

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FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT).

The Second Department, reversing Family Court, determined that Family Court should amend its Special Immigrant Juvenile Status (SIJS) order to address the reasons for the revocation of the initial approval of the petition by the US Citizenship and Immigration Services (USCIS):

The child moved for the issuance of an order making the requisite declaration and specific findings so as to enable him to petition for SIJS. … [T]he Family Court granted the child’s motion.

Thereafter, the child submitted an I-360 petition for SIJS to USCIS. Although the I-360 petition was initially approved, USCIS thereafter advised the child of its intention to “revoke the approval” based upon certain deficiencies in the special findings order. The child then moved to amend the special findings order to address the deficiencies, and the father joined in the motion. In an order dated February 26, 2018, the Family Court denied the motion to amend the special findings order. …

Under the circumstances presented, we deem it appropriate to amend the special findings order to clarify that the basis for the Family Court’s exercise of jurisdiction over this custody proceeding is under New York State law pursuant to Family Court Act § 651(a). We also deem it appropriate to amend the special findings order to specify that it would not be in the best interests of the child to be returned to El Salvador because the mother is unable to protect the child from harm by gang members in El Salvador, who have made threats of violence against him … . Matter of Argueta v Santos, 2018 NY Slip Op 07424, Second Dept 11-7-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))

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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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