Family Law – Page 86 – New York Appellate Digest

MOTHER’S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT).

The Second Department determined that mother's mental illness supported the neglect finding and an order requiring mother to cooperate with medication management by her mental health service providers:

Mental illness means “an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act” (Social Services Law § 384-b[6][a]). “While parental neglect may be based on mental illness, proof of a parent's mental illness alone will not support a finding of neglect”… . Rather, the petitioner must adduce evidence sufficient to “establish a causal connection between the parent's condition, and actual or potential harm to the [child]” … .

… [T]the mother's contention that the Family Court acted in excess of its jurisdiction or violated her constitutional right to direct her own medical treatment when it directed that she comply with medication management recommended by her mental health service providers is without merit, since the court did not order the forcible administration of medication … . Matter of Nialani T. (Elizabeth B.), 2018 NY Slip Op 06019, Second Dept 9-12-18

FAMILY LAW (MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))/NEGLECT (FAMILY LAW, MENTAL ILLNESS, MOTHER'S MENTAL ILLNESS SUPPORTED NEGLECT FINDING (SECOND DEPT))

September 12, 2018

Appeals, Criminal Law, Family Law

ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT).

The Second Department determined no appeal lies from an adjournment in contemplation of dismissal (ACD) which has resulted in dismissal:

“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal. This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary” … .

Thus, an appeal is academic “unless an adjudication of the merits will result in immediate and practical consequences to the parties” … .

The application of these principles to the facts of this case establish that the appeal is academic. In the order appealed from, the Family Court adjourned the proceedings in contemplation of dismissal until July 18, 2017. Where a proceeding is adjourned in contemplation of dismissal, and the proceeding is not restored to the calendar and no applications by the petitioner or the child's attorney or motions by the court to restore the proceeding to the calendar are pending, “the petition is, at the expiration of the adjournment period, deemed to have been dismissed by the court in furtherance of justice” (Family Ct Act 1039[f]). Thus, the petition has been dismissed, by operation of law and in the furtherance of justice… . Given that the appellants have received the exact relief they seek, any determination we might make in this matter would have no direct effect on the rights of the parties before us … . Matter of Priciliyana C. (Jacklyn L.), 2018 NY Slip Op 05927, Second Dept 8-29-18

APPEALS (ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/CRIMINAL LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/FAMILY LAW (APPEALS, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))/ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD, ADJOURNMENT IN CONTEMPLATION OF DISMISSAL WHICH HAS RESULTED IN DISMISSAL IS NOT APPEALABLE (SECOND DEPT))

August 29, 2018

Evidence, Family Law

A SHOWING THAT MOTHER WAS ABUSED AND THE CHILD WITNESSED THE ABUSE IS NOT LEGALLY SUFFICIENT EVIDENCE THAT MOTHER NEGLECTED THE CHILD (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Department of Children and Family Services (DCFS) did not present legally sufficient evidence of mother's neglect. The basis of the neglect allegation was mother's allowing the children to be exposed to domestic violence at the hands of her paramour:

In order to establish a prima facie case of neglect, DCFS was required, insofar as relevant here, to establish by a preponderance of the evidence that the subject children's “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [their] parent or other person legally responsible for [their] care to exercise a minimum degree of care” … . In the petition, DCFS alleged that the mother neglected the subject children by exposing them to domestic violence, i.e., by allowing her paramour into her house on several occasions in the presence of the subject children despite his history of violent actions toward her, during which she was again subjected to domestic violence. It is well settled that, in certain situations, “[t]he exposure of the child to domestic violence between the parents may form the basis for a finding of neglect”… . To establish neglect, however, “there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child' . . . In order for danger to be imminent,' it must be near or impending, not merely possible' . . . Further, there must be a causal connection between the basis for the neglect petition and the circumstances that allegedly produce the . . . imminent danger of impairment' ” … . Thus, “[a] neglect determination may not be premised solely on a finding of domestic violence without any evidence that the physical, mental or emotional condition of the child was impaired or was in imminent danger of becoming impaired”… . “When the sole allegation' is that the mother has been abused and the child has witnessed the abuse, such a showing has not been made” … . Matter of Nevin H. (Stephanie H.), 2018 NY Slip Op 05891, Fourth Dept 8-22-18

FAMILY LAW (A SHOWING THAT MOTHER WAS ABUSED AND THE CHILD WITNESSED THE ABUSE IS NOT LEGALLY SUFFICIENT EVIDENCE THAT MOTHER NEGLECTED THE CHILD (FOURTH DEPT))/NEGLECT (FAMILY LAW, A SHOWING THAT MOTHER WAS ABUSED AND THE CHILD WITNESSED THE ABUSE IS NOT LEGALLY SUFFICIENT EVIDENCE THAT MOTHER NEGLECTED THE CHILD (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, A SHOWING THAT MOTHER WAS ABUSED AND THE CHILD WITNESSED THE ABUSE IS NOT LEGALLY SUFFICIENT EVIDENCE THAT MOTHER NEGLECTED THE CHILD (FOURTH DEPT))

August 22, 2018

Attorneys, Civil Procedure, Contract Law, Family Law

HUSBAND’S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY’S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) husband's counsel should not have been disqualified on the ground she would be a witness, (2) the plenary action seeking to set aside the prenuptial agreement on grounds of duress, coercion, undue influence and unconscionabiltiy is properly joined with the divorce action, (3) and interim attorney's fees are not available for the action to set aside the prenuptial agreement:

Rule 3.7 of the Rules of Professional Conduct… provides that, unless certain exceptions apply, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact” … . In order to disqualify counsel on the ground that he or she may be called as a witness, a party moving for disqualification must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party… . Here, the wife failed to demonstrate that [the attorney's] testimony will be necessary to her case … . …

“The trial court has broad discretion in determining whether to order consolidation”(… see CPLR 602[a]). The interests of justice and judicial economy are better served by consolidation or a joint trial in those cases where the actions share material questions of law or fact … . A motion to consolidate or join for trial should be granted absent a showing of prejudice to a substantial right by a party opposing the motion … . …

The Supreme Court should not have awarded the wife interim counsel fees in the sum of $10,000 pursuant to Domestic Relations Law § 237, as that statute does not permit the recovery of fees for legal work performed on nonmatrimonial matters, including where, as here, a party seeks an award of counsel fees incurred in an action to set aside a prenuptial agreement … . Lombardi v Lombardi, 2018 NY Slip Op 05758, Second Dept 8-15-18

FAMILY LAW (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/ATTORNEYS (FAMILY LAW, HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CIVIL PROCEDURE (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CPLR 602 (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/CONTRACT LAW (PRENUPTIAL AGREEMENT, HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))/PRENUPTIAL AGREEMENT (HUSBAND'S ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED ON THE GROUND SHE WOULD BE A WITNESS FOR THE WIFE, PLENARY ACTION SEEKING TO SET ASIDE A PRENUPTIAL AGREEMENT PROPERLY JOINED WITH DIVORCE ACTION, INTERIM ATTORNEY'S FEES NOT AVAILABLE FOR THE ACTION TO SET ASIDE THE PRENUPTIAL AGREEMENT (SECOND DEPT))

August 15, 2018

Attorneys, Family Law

CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S CHILD SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Family Court, determined (1) the adopted child’s attorney had standing to object to the child support rulings, and (2) the child had the right to receive the adoption subsidy until 21. Mother had consented to the child being cared for by a guardian and thereafter mother voluntarily discontinued the adoptive subsidy. Family Court had found the court could not force mother to receive the subsidy. The First Department determined the subsidy is the child’s resource and mother is to receive the subsidy on the child’s behalf:

Although the mother argues that Family Court Act § 439(e) restricts the filing of objections to a “party or parties,” we find that her reading is too narrow. That section does not prohibit children’s attorneys, where appointed, from filing or rebutting objections to a Support Magistrate’s order for three reasons. First, the statute is focused on the time frame for filing and not on the identity of the filers. It appears that the words “party” and “parties” are used in the general sense of persons or entities who have been served with a copy of the support order, rather than the strict sense of petitioner and respondent.

Second, children’s attorneys are expected to participate fully in proceedings in which they are appointed. We base this conclusion on the broad language of section 249 authorizing appointment of attorneys for children in any type of proceeding, the legislative finding that children’s attorneys can be “indispensable to a practical realization of due process of law”… , and the obligation of attorneys for children to zealously advocate for their clients and generally adhere to the ethical requirements applicable to all attorneys … . It would make little sense for Family Court to be permitted to appoint attorneys for children in child support cases to assist it in carrying out the purposes of the Family Court Act and then not permit those attorneys to file or respond to objections. Indeed, published opinions in other cases acknowledge that they have been permitted to do so … . * * *

Family Court erred in determining that a deviation based on the subsidy would be improper because it would “force” the mother to take steps to undo the subsidy’s suspension. Awarding child support in the amount of the subsidy is not unlike awarding support based on a parent’s historic earning potential, which similarly requires the parent to do what the court has determined he or she is capable of doing based on past performance.

Family Court further erred in failing to properly consider the 10 factors set forth in FCA § 413(1)(f) to determine whether the mother’s basic child support obligation is unjust or inappropriate. In particular, Family Court should have considered the first three statutory factors — the financial resources of the child, the physical and emotional health of the child and his special needs and aptitudes, and the standard of living the child would have enjoyed had he continued to reside with his mother — and the 10th factor: “[a]ny other factors the court determines are relevant in each case.” Considering these factors, we find that awarding child support in at least the amount of the subsidy for so long as the mother is eligible to receive it on the child’s behalf is an appropriate deviation from the basic child support obligation … . Matter of Barbara T. v Acquinetta M., 2018 NY Slip Op 05736, First Dept 8-9-18

FAMILY LAW (ATTORNEYS, CHILD SUPPORT, ADOPTIVE SUBSIDY, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/ATTORNEYS (FAMILY LAW, CHILD SUPPORT, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/CHILD SUPPORT (FAMILY LAW, ADOPTIVE SUBSIDY,CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/ADOPTIVE SUBSIDY (FAMILY LAW, CHILD SUPPORT, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))/ADOPTIVE SUBSIDY (CHILD SUPPORT, FAMILY LAW, CHILD’S ATTORNEY HAD STANDING TO OBJECT TO THE SUPPORT MAGISTRATE’S SUPPORT RULINGS, AN ADOPTIVE SUBSIDY IS A RESOURCE OF THE ADOPTED CHILD AND SHOULD BE PAID TO THE ADOPTIVE MOTHER ON THE CHILD’S BEHALF UNTIL THE CHILD TURNS 21, EVEN THOUGH MOTHER NO LONGER CARES FOR THE CHILD (FIRST DEPT))

August 9, 2018

Contract Law, Family Law

DIVORCE SETTLEMENT AGREEMENT WHICH WAS SILENT ON THE DEFINITION OF MAINTENANCE WAS INTERPRETED IN ACCORDANCE WITH THE STATUTORY DEFINITION OF MAINTENANCE IN DOMESTIC RELATIONS LAW 236 (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, determined that a divorce settlement agreement which indicated a specific date (2020) when the husband’s maintenance obligation ends did not extend the husband’s maintenance obligation beyond the wife’s remarriage in 2015. Because the agreement was silent on the meaning of “maintenance” the court turned to Domestic Relations Law 236 which indicates that a maintenance obligation terminates upon remarriage:

A divorce settlement agreement is a contract, subject to standard principles of contract interpretation … . The agreement at issue does not explicitly define the term “maintenance,” and it is silent regarding the effect of the wife’s remarriage upon the husband’s maintenance obligation. Thus, the plain text of the agreement — which the Court of Appeals says is the best source of the parties’ intent … — is not conclusive of the question on appeal.

“Nevertheless, it is basic that, unless a contract provides otherwise, the law in force at the time the agreement is entered into becomes as much a part of the agreement as though it were expressed or referred to therein, for it is presumed that the parties had such law in contemplation when the contract was made and the contract will be construed in the light of such law” (Dolman v United States Trust Co. of N.Y., 2 NY2d 110, 116 [1956] …). The Dolman rule is of longstanding vintage, and the “principle embraces alike those [laws in force at the time of a contract’s execution] which affect its validity, construction, discharge, and enforcement” … . By virtue of the Dolman rule, when parties enter into an agreement authorized by or related to a particular statutory scheme, the courts will presume — absent something to the contrary — that the terms of the agreement are to be interpreted consistently with the corresponding statutory scheme … .

The statutory scheme corresponding to the agreement in this case is Domestic Relations Law § 236, which authorizes divorce settlement agreements and directs that such agreements specify the “amount and duration of maintenance,” if any … . The term ” maintenance’ ” is defined within this statutory scheme as “payments provided for in a valid agreement between the parties or awarded by the court . . . , to be paid at fixed intervals for a definite or indefinite period of time” … . Critically, the statutory definition includes the following caveat: any maintenance award “shall terminate upon the death of either party or upon the payee’s valid or invalid marriage” … . Burns v Burns, 2018 NY Slip Op 05411, Fourth Dept 7-25-18

FAMILY LAW (DIVORCE SETTLEMENT AGREEMENT WHICH WAS SILENT ON THE DEFINITION OF MAINTENANCE WAS INTERPRETED IN ACCORDANCE WITH THE STATUTORY DEFINITION OF MAINTENANCE IN DOMESTIC RELATIONS LAW 236 (FOURTH DEPT))/CONTRACT LAW (FAMILY LAW, DIVORCE SETTLEMENT AGREEMENT WHICH WAS SILENT ON THE DEFINITION OF MAINTENANCE WAS INTERPRETED IN ACCORDANCE WITH THE STATUTORY DEFINITION OF MAINTENANCE IN DOMESTIC RELATIONS LAW 236 (FOURTH DEPT))/MAINTENANCE (FAMILY LAW, DIVORCE SETTLEMENT AGREEMENT WHICH WAS SILENT ON THE DEFINITION OF MAINTENANCE WAS INTERPRETED IN ACCORDANCE WITH THE STATUTORY DEFINITION OF MAINTENANCE IN DOMESTIC RELATIONS LAW 236 (FOURTH DEPT))

July 26, 2018

Family Law

IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT).

The First Department, in a complex paternity case spanning eight years, over a comprehensive dissent, determined the order precluding the child, G, from establishing estoppel and finding that petitioner had standing to seek custody and visitation was properly granted. The facts cannot be fairly summarized here:

,,, [T]here is no basis to apply the [estoppel] doctrine here, where petitioner has consistently and diligently asserted his paternity; attempted to visit the hospital in time for G.’s birth; attempted to support G. financially; commenced proceedings and consistently appeared in court by telephone or in person, as he was able. By contrast, JAC [mother’s partner who acknowledged paternity] failed to appear in court in person after September 21, 2011, and failed to appear by his counsel or any other means in any proceeding after June 18, 2012. Moreover, any delay in bringing the paternity proceedings to a conclusion is not attributable to petitioner, but to respondent and JAC, who failed to appear in court on numerous occasions, and to the AFC [attorney for the child], who waited three years before challenging the 2012 estoppel order.

Moreover, contrary to our dissenting colleague’s view, this is not a case where a man may be estopped from claiming to be a child’s biological father on the basis of his acquiescence to the establishment of a strong parent-child bond between the child and another man … . Here, petitioner’s efforts to establish his paternity were far from acquiescent. Petitioner sought, and was granted, leave to postpone commencement of his prison sentence for one month in order to allow him to be present at G.’s birth. When he arrived in New York on October 9, 2008 for that purpose, he called respondent’s mother, who told him that his daughter had been born but did not disclose the hospital in which the birth had taken place. He was then contacted by JAC, who made clear to him that petitioner should have nothing to do with G. Undaunted by these incidents, upon entering prison, he attempted to send money orders to respondent which he intended for G.’s support, but the money orders were returned to him. While still in prison, he commenced the instant paternity proceeding, consistently appearing before the court by telephone and, upon his release from prison in July 2011, in person. And, approximately one month after the June 2012 estoppel ruling was issued, petitioner commenced the custody/visitation proceeding, repeatedly appearing in person and ultimately hiring private counsel in that proceeding, as well. Matter of Michael S. v Sultana R., 2018 NY Slip Op 05404, First Dept 7-19-18

FAMILY LAW (IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT))/PATERNITY (IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT))/ESTOPPEL (FAMILY LAW, PATERNITY, IN A COMPLEX PATERNITY CASE SPANNING EIGHT YEARS ORDER PRECLUDING CHILD FROM ESTABLISHING ESTOPPEL AND FINDING PETITIONER HAD STANDING TO SEEK CUSTODY AND VISITATION PROPERLY GRANTED (FIRST DEPT))

July 19, 2018

Civil Procedure, Family Law

CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined Family Court abused its discretion when it dismissed an equitable estoppel hearing in a paternity and custody proceeding when mother failed to appear and the child requested an adjournment:

Despite the fact that the mother had appeared on all prior court dates, and was in the middle of her testimony at the hearing, the Family Court denied the child’s request for an adjournment, and instead directed dismissal of the petition for failure to prosecute. The child, Malachi S., appeals. …

Here, as the child and the mother correctly contend, the request for an adjournment was reasonable and there was no indication of intentional default or willful abandonment. Under these circumstances, the Family Court improvidently exercised its discretion in directing the dismissal of the petition for failure to prosecute rather than granting the child’s request for an adjournment … . Matter of Simmons v Ford, 2018 NY Slip Op 05176, Second Dept 7-11-18

FAMILY LAW (CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ADJOURNMENT (FAMILY LAW, CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PATERNITY (CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CUSTODY (FAMILY LAW, CHILD’S REQUEST FOR AN ADJOURNMENT WHEN MOTHER FAILED TO APPEAR AT AN EQUITABLE ESTOPPEL HEARING IN THIS PATERNITY AND CUSTODY PROCEEDING SHOULD HAVE BEEN GRANTED (SECOND DEPT))

July 11, 2018

Civil Procedure, Family Law

PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT).

The Fourth Department reversed the dismissal, by a Referee, of the petition brought seeking joint custody of children born to respondent, with whom petitioner had had a romantic relationship, on the basis of an agreement that petitioner and respondent would raise the children as a family. The court noted that a dismissal pursuant to CPLR 4401 for failure to make out a prima facie case can not take into account credibility determinations:

Petitioner commenced this proceeding seeking joint custody of, and visitation with, the five subject children, all of whom were born to respondent and conceived by the implantation of fertilized eggs. With respect to her standing to commence this proceeding, petitioner alleged that she and respondent had previously been involved in a romantic relationship, and that they entered into an agreement to raise and co-parent the child that was alive when the parties met. Petitioner further alleged that, prior to the conception of the younger four children, the parties also agreed that respondent would conceive additional children and the parties would jointly raise them as a family. The Referee granted a hearing on the issue of petitioner’s standing to seek custody of the children, at which petitioner’s testimony was consistent with the petition. … At the conclusion of petitioner’s case, the Referee granted respondent’s motion pursuant to CPLR 4401 to dismiss the petition. …

… “[I]n determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom . . . The question of credibility is irrelevant, and should not be considered” … .

Here, the Referee made credibility determinations and weighed the probative value of the evidence in making a determination on the motion to dismiss. Consequently, we reverse the order, reinstate the petition and remit the matter to Family Court to determine, after a full hearing, whether petitioner, by clear and convincing evidence, has established with respect to the four younger children that she “has agreed with the biological parent of the child[ren] to conceive and raise [them] as co-parents” … , and whether, despite being a “partner without such an agreement [she] can establish standing” with respect to the older child … . Matter of deMarc v Goodyear, 2018 NY Slip Op 05095, Fourth Dept 7-6-18

FAMILY LAW (PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))/CUSTODY (FAMILY LAW, PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT)))CIVIL PROCEDURE (PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))/CPLR 4401 (PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))/STANDING (FAMILY LAW, CUSTODY, PETITION BY A FORMER ROMANTIC PARTNER SEEKING JOINT CUSTODY OF CHILDREN BORN TO RESPONDENT BASED UPON AN ALLEGED AGREEMENT TO RAISE THE CHILDREN AS A FAMILY SHOULD NOT HAVE BEEN DISMISSED BY THE REFEREE FOR FAILURE TO MAKE OUT A PRIMA FACIE CASE, THE REFEREE SHOULD NOT HAVE MADE CREDIBILITY DETERMINATIONS IN A MOTION PURSUANT TO CPLR 4401 (FOURTH DEPT))

July 6, 2018

Attorneys, Family Law

FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT).

The Third Department, reversing Family Court in this contempt and modification of custody proceeding, determined Family Court should not have allowed father to represent himself without first making an inquiry to ensure father understood the consequences of going forward without an attorney. Although Family Court informed father that he should obtain counsel because he was misconstruing the law, and father was represented when the hearing resumed, one of the witnesses examined by father pro se was not recalled for examination by father’s attorney:

“A waiver of the right to counsel must be explicit and intentional, and the court must assure that it is made knowingly, intelligently and voluntarily”… . Thus, the hearing court must “perform a searching inquiry to determine whether a party is aware of the dangers and disadvantages of proceeding without counsel, which might include inquiry into the party’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” … . …

Supreme Court erred by commencing the hearing without first ascertaining that the father was unequivocally waiving his right to counsel and, if so, conducting an inquiry into whether that waiver was knowingly, intelligently and voluntarily made … . Although one of the two witnesses who testified while the father was pro se ultimately was recalled after the father obtained counsel, and was subjected to direct and cross-examination for a second time, the other witness — the caseworker — was not recalled and her testimony supported both of the mother’s petitions. Furthermore, the violation of a party’s statutory right to counsel “requires reversal, without regard to the merits of the unrepresented party’s position” and, therefore, we need not consider whether the mother would have succeeded on her modification petition absent the caseworker’s testimony … . Matter of Hensley v DeMun, 2018 NY Slip Op 04995, Third Dept 7-5-18

FAMILY LAW (ATTORNEYS, FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))/ATTORNEYS (FAMILY LAW, FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))/RIGHT TO COUNSEL (FAMILY LAW, FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))/PRO SE (FAMILY LAW, FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))/WAIVER (RIGHT TO COUNSEL, FAMILY LAW, FAMILY COURT’S FAILURE TO CONDUCT A SEARCHING INQUIRY BEFORE ALLOWING FATHER TO PROCEED PRO SE REQUIRED REVERSAL, DESPITE FATHER’S BEING REPRESENTED WHEN THE HEARING CONTINUED (THIRD DEPT))

July 5, 2018