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FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT).

The Second Department, dismissing the appeal as academic, determined Family Court was divested of subject matter jurisdiction in this guardianship proceeding because the child had turned 21. Mother had sought appointment as guardian in an effort to procure special immigrant juvenile status (SIJS) for the child:

“Generally, courts are precluded from considering questions which, although once live, have become moot by passage of time or change in circumstances'” … . Where, as here, a child who consented to the appointment of a guardian after his or her 18th birthday turns 21, the term of appointment of the guardian “expires on [the child’s] twenty-first birthday” (SCPA 1707[2]). Consequently, once the child turns 21, the court “is divested of subject matter jurisdiction, [and] cannot exercise such jurisdiction by virtue of an order nunc pro tunc” … . Thus, the guardianship petition cannot be granted at this juncture.

Furthermore, since guardianship status, which the Family Court can only grant to individuals under 21, is a condition precedent to a declaration allowing a child to seek SIJS, the petitioner’s motion for the issuance of an order declaring that the child is dependent on the court and making the requisite specific findings so as to enable him to petition for SIJS has also been rendered academic … . Matter of Vincenta E. V. v Alexander R. G., 2018 NY Slip Op 03849, Second Dept 5-30-18

​FAMILY LAW (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/IMMIGRATION LAW (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/CIVIL PROCEDURE (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/SUBJECT MATTER JURISDICTION  (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/JURISDICTION (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))

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COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT).

The First Department, reversing Family Court, determined mother was entitled to a hearing on her motion for attorney’s fees in this divorce action (mother sought $174,000). Family Court had dismissed mother’s motion. The First Department held that Family Court should have looked at the future earning capacity of the parties rather than their earning capacity at the time of the decision:

The purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition … . In its dismissal of the mother’s motion for counsel fees, the court unduly relied upon the financial circumstances of the parties at the time it rendered its decision rather than weighing the historical and future earning capacities of both parties … . Here, although the father was unemployed at the time the court’s decision was rendered, and the mother had secured employment, the father earned considerably more than the mother during the course of their relationship and has significantly more expected earning capacity than the mother. Indeed, the financial and tax documents in the record support such a conclusion. The father, however, is entitled to a hearing so that the relative financial positions of the parties and the value and extent of the counsel fees requested can be examined … . Matter of Brookelyn M. v Christopher M., 2018 NY Slip Op 03801, First Dept 5-29-18

​FAMILY LAW (ATTORNEY’S FEES, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))/ATTORNEY’S FEE (FAMILY LAW, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))

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MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT).

The Second Department determined Family Court should not have dismissed mother’s petition to have Family Court make the findings necessary for he child to apply for special Immigrant juvenile status (SIJS) and should not have required mother to be fingerprinted and provide unnecessary documentation. The Second Department further held that the petition must be transferred to a different judge because of the judge’s comments about the child’s speaking Spanish:

Contrary to the Family Court’s determination, in a proceeding such as this pursuant to Family Court Act § 661(a) for “[g]uardianship of the person of a minor or infant,” there is no express statutory fingerprinting requirement … , or any express requirement to submit documentation pertaining to the Office of Children and Family Services … . Further, under the circumstances of this case, the court erred in dismissing the petition and denying the motion for “failure to prosecute” based upon the mother’s failure to submit documentation regarding, inter alia, the child’s enrollment in school … .

Since the Family Court dismissed the guardianship petition and denied the mother’s motion without conducting a hearing or considering the child’s best interests, we remit the matter to the Family Court, Nassau County, for a hearing and a new determination thereafter of the petition and the motion … . In addition, in light of certain remarks made by the Family Court Judge during the course of the proceedings, we deem it appropriate that the matter be heard by a different Judge. The remarks included: that the child “should be speaking English a lot better” after having been in the United States for two years; that the child should “make some friends who speak English”; that if the child only spoke Spanish, “what are you gonna do, you’re gonna be hanging around just where you are”; and that the child “[c]an’t speak English, doesn’t go to school, it’s wonderful. It’s a great country America.” These remarks were inappropriate and cannot be countenanced. Matter of A. v P., 2018 NY Slip Op 03674, Second Dept 5-23-18

​FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY LAW, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))/JUDGES (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))

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IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT).

The Second department, reversing (modifying) Supreme Court in a divorce action, determined that the judge properly corrected a mistake in the judgment of divorce, but improperly made a change in the judgment based on new evidence:

… [T]he Supreme Court, sua sponte, directed the parties to appear … . … [T]he defendant and his counsel appeared, but the plaintiff failed to appear. The court expressed its concern about a letter it had received indicating that the defendant had failed to disclose a variable supplemental pension plan. The court further noted that the third decretal paragraph of the judgment did not reflect the intent expressed in the court’s underlying decision, inasmuch as the judgment failed to provide that changes in the value of the retirement assets since the commencement of the action were to be shared equally. An amended judgment was entered thereafter modifying so much of the third decretal paragraph of the original judgment as was necessary to conform the judgment to the underlying decision, and modifying the fourth decretal paragraph of the original judgment to include a reference to the previously undisclosed variable supplemental pension plan. The defendant appeals from the amended judgment.

The Supreme Court had the authority to modify the third decretal paragraph of the original judgment, given the discrepancy between the terms of that decretal paragraph and the underlying decision. “A judgment . . . must conform strictly to the court’s decision. Where there is an inconsistency between a judgment . . . and the decision upon which it is based, the decision controls” …

However, the Supreme Court was without authority, sua sponte, to modify the fourth decretal paragraph of the original judgment to add a reference to the variable supplemental pension plan, as this was a substantive modification based on new evidence that had not previously been submitted to the court. Such a modification goes beyond the court’s inherent authority to correct a “mistake, defect or irregularity” in the original judgment “not affecting a substantial right of a party” … . Mascia v Mascia, 2018 NY Slip Op 03523, Second Dept 5-16-18

​FAMILY LAW (JUDGMENTS, IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))/JUDGMENTS ( IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))/JUDGES (IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))

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AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the award of attorney’s fees and expert witness fees in this divorce action was an abuse of discretion:

In a matrimonial action, an award of counsel fees is a matter committed to the sound discretion of the trial court … . However, court rules impose certain requirements upon attorneys who represent clients in domestic relations matters … . These rules were designed to address abuses in the practice of matrimonial law and to protect the public, and the failure to substantially comply with the rules will preclude an attorney’s recovery of a fee from his or her client …  or from the adversary spouse … . A showing of substantial compliance must be made on a prima facie basis as part of the moving party’s papers … .

Here, the evidence proffered by the defendant in support of that branch of her motion which was for an award of counsel fees for work performed by Glynn demonstrates that Glynn failed to substantially comply with the rules requiring periodic billing statements at least every 60 days … . Accordingly, the Supreme Court erred in granting that branch of the defendant’s motion which pertains to Glynn’s counsel’s fees. …

“The award of expert witness fees in a matrimonial action is left to the sound discretion of the trial court, and should be made upon a detailed showing of the services to be rendered and the estimated time involved”… . “Absent affidavits from the expert witnesses at issue, the Supreme Court lacks a sufficient basis to grant a motion for the award of such fees” …  Here, the defendant failed to submit such expert affidavits. Greco v Greco, 2018 NY Slip Op 03509, Second Dept 5-16-18

​FAMILY LAW (DIVORCE, ATTORNEY’S FEES, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/ATTORNEYS (DIVORCE, ATTORNEY’S FEES, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/ATTORNEYS FEES (DIVORCE, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/EXPERT WITNESSES (DIVORCE, ATTORNEY’S FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))

DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined, despite the termination of mother’s parental rights, grandmother had standing to seek visitation with the child and visitation by the grandmother was in the bests interests of the child:

A biological grandparent may seek visitation with a child even after parental rights have been terminated or the child has been freed for adoption … . Where a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must undertake a two-part inquiry … . First, the court must determine if the grandparent has standing to petition for visitation based on the death of a parent or equitable circumstances . Where the court concludes that the grandparent has established standing, the court must then determine whether visitation with the grandparent is in the best interests of the child … . In determining whether equitable circumstances confer standing, the court must examine all relevant facts … . “[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship” … . A grandparent must establish an existing relationship or sufficient efforts to establish one that have been unjustifiably frustrated by the parent … .

Here, the evidence demonstrated that the maternal grandmother developed a relationship with the child early on in her life and thereafter made repeated efforts to continue that relationship … . Accordingly, the Family Court’s determination that the grandmother lacked standing to seek visitation was not supported by a sound and substantial basis in the record. Moreover, visitation with the grandmother would be in the child’s best interests. The grandmother had consistent visitation with the child until the DSS ceased allowing such visitation in November 2014. By all accounts, the grandmother’s visitations conducted separately from the mother’s visitations were positive, and the attorney for the child in the Family Court took the position that the child’s best interests would be served by visitation with the grandmother conditioned on the requirement that the mother not be present for the visitation … . Matter of Weiss v Weiss, 2018 NY Slip Op 03532, Second Dept 5-16-18

​FAMILY LAW (VISITATION, GRANDMOTHER, DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT))/VISITATION (FAMILY LAW, GRANDMOTHER, DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, VISITATION, DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT))

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WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT).

The Third Department determined the wife’s request, in this divorce proceeding, to unseal the record of her husband’s criminal proceedings was properly denied. The husband had been charged with an assault against the wife, and the proceedings terminated favorably to the husband (he was granted an adjournment in contemplation of dismissal). The record was therefore sealed by operation of statute (Criminal Procedure Law (CPL)160.50):

By “provid[ing] for the sealing of records in a criminal proceeding which terminates in favor of the accused” … ,CPL 160.50 “serves the laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his [or her] having once been the object of an unsustained accusation” … . It is undisputed that the charges against the husband related to the December 2015 incident were “deemed dismissed as a result of an adjournment in contemplation of dismissal and, therefore, the records of that criminal prosecution were sealed” … . The wife does not claim that any statutory exception entitles her to the records. Her primary contention is instead that the husband, by denying the alleged behavior that led to the charges, waived the statutory bulwark against disclosure by “commenc[ing] a civil action and affirmatively plac[ing] the information protected by CPL 160.50 into issue”… ..

The wife’s argument founders upon the fact that it was she, not the husband, who has “place[d] in issue elements that are common or related to the prior criminal action” by alleging the husband’s assaultive conduct … . Prag v Prag, 2018 NY Slip Op 03414, Third Dept 5-10-18

​FAMILY LAW (CRIMINAL LAW, SEALING OF RECORD, WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT))/CRIMINAL LAW (FAMILY LAW, SEALING OF RECORD OF CRIMINAL PROCEEDINGS, WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT))/SEALING (CRIMINAL LAW, WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT))

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FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY FOR PETITIONER MOTHER TO SEEK SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) FOR HER SON (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made the findings necessary to allow petitioner-mother to seek special immigrant juvenile status (SIJS) for her son:

Based upon our independent factual review, we find that the record establishes that the child meets the age and marital status requirements for special immigrant status, and the dependency requirement has been satisfied by the granting of the mother’s guardianship petition …  Moreover, the child’s father is deceased and, therefore, reunification is not possible … . We further find that it would not be in the child’s best interests to be returned to Honduras, given the hearing evidence establishing that there is no one there who is able to care for him, and that the child was threatened with violence if he returned. Matter of Denia M. E. C. v Carlos R. M. O., 2018 NY Slip Op 03355, Second Dept 5-9-18

​FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY FOR PETITIONER MOTHER TO SEEK SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) FOR HER SON (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY FOR PETITIONER MOTHER TO SEEK SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) FOR HER SON (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY FOR PETITIONER MOTHER TO SEEK SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) FOR HER SON (SECOND DEPT))

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NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined a psychological exam of mother should not have been ordered prior to a fact-finding hearing in this neglect proceeding. The court had no indication mother suffered from mental illness:

… [T]he Suffolk County Department of Social Services (hereinafter the petitioner) filed a neglect petition against the mother, alleging, among other things, that she failed to “work cooperatively with the appropriate agencies” to ensure that the subject child, whom the mother reported to have been sexually abused, “would receive appropriate counseling and services.” The petitioner also alleged that the mother failed “to take any action to ensure that [the child] was being adequately and appropriately cared for by his father,” who was alleged to be abusive toward the child. The mother consented to the temporary removal of the child. Thereafter, prior to a fact-finding hearing, the petitioner requested that the mother be directed to submit to a psychological examination. …

The determination whether to direct a psychological examination is within the sound discretion of the Family Court … . Under the circumstances of this case, it was an improvident exercise of discretion for the Family Court to direct the mother to submit to a psychological examination prior to a fact-finding hearing. The record is devoid of any indication that the mother may suffer from a mental illness. Nor did the petition contain any allegations which placed the mother’s mental health at issue … . Matter of Tyriek J. (Tamika J.), 2018 NY Slip Op 03361, Second Dept 5-9-18

​FAMILY LAW (NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT))/NEGLECT (FAMILY LAW, NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT))/PSYCHOLOGICAL EXAM (FAMILY LAW, NEGLECT, NO INDICATION MOTHER SUFFERED FROM MENTAL ILLNESS, PSYCHOLOGICAL EXAM SHOULD NOT HAVE BEEN ORDERED PRIOR TO A FACT-FINDING HEARING IN THIS NEGLECT PROCEEDING (SECOND DEPT))

ISRAELI CUSTODY ORDER WAS REGISTERED IN NEW YORK, FATHER FAILED TO CONTEST THE REGISTRATION OF THE ISRAELI CUSTODY ORDER WITHIN 20 DAYS, FATHER’S PETITION TO REGISTER AND ENFORCE A CALIFORNIA CUSTODY ORDER, WHICH HAD BEEN MODIFIED BY THE ISRAELI ORDER, PROPERLY DENIED (SECOND DEPT).

The Second Department determined Family Court properly denied father’s petitions for registration and enforcement of a California custody order. Mother, who was living in Israel, had acquired an Israeli court order modifying the California order. The Israeli order was registered in New York and father was notified of the application for registration. Father had 20 days to contest and failed to do so:

Domestic Relations Law § 77-d provides for the registering, and contesting, of an out-of-state custody decree. Upon receipt of the child custody determination to be registered, the New York court is obligated to serve notice upon the affected persons and provide them with an opportunity to contest the registration (see Domestic Relations Law § 77-d[2][b]). The statute provides that “[a] person seeking to contest the validity of a registered order must request a hearing within twenty days after service of the notice” (Domestic Relations Law § 77-d[4]). At the hearing, the court “shall confirm the registered order” unless the person contesting registration establishes that (a) the issuing court did not have jurisdiction, (b) the custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so, or (c) the person contesting registration was entitled to, but did not receive, notice in the underlying proceedings before the court that issued the order for which registration is sought (Domestic Relations Law § 77-d[4]). If no timely contest is made, “the registration is confirmed as a matter of law” (Domestic Relations Law § 77-d[5]). “Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration” … . Matter of Worsoff v Worsoff, 2018 NY Slip Op 03373, Second Dept 5-9-18

​FAMILY LAW (CUSTODY, OUT OF STATE ORDERS, ISRAELI CUSTODY ORDER WAS REGISTERED IN NEW YORK, FATHER FAILED TO CONTEST THE REGISTRATION OF THE ISRAELI CUSTODY ORDER WITHIN 20 DAYS, FATHER’S PETITION TO REGISTER AND ENFORCE A CALIFORNIA CUSTODY ORDER, WHICH HAD BEEN MODIFIED BY THE ISRAELI ORDER, PROPERLY DENIED (SECOND DEPT))/CUSTODY (FAMILY LAW, OUT OF STATE ORDERS, REGISTRATION, ISRAELI CUSTODY ORDER WAS REGISTERED IN NEW YORK, FATHER FAILED TO CONTEST THE REGISTRATION OF THE ISRAELI CUSTODY ORDER WITHIN 20 DAYS, FATHER’S PETITION TO REGISTER AND ENFORCE A CALIFORNIA CUSTODY ORDER, WHICH HAD BEEN MODIFIED BY THE ISRAELI ORDER, PROPERLY DENIED (SECOND DEPT))

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