Family Law – Page 89 – New York Appellate Digest

FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court did not follow the procedures required by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) before determining it did not have jurisdiction over the custody proceeding. Family Court had jurisdiction over father’s custody proceeding when it was commenced, and Pennsylvania had jurisdiction over the wife’s custody proceeding when she commenced it there:

Family Court erred in declining to exercise jurisdiction and dismissing the proceeding without following the procedures required by the UCCJEA … . The court, after determining that another child custody proceeding had been commenced in Pennsylvania, properly communicated with the Pennsylvania court … . The court erred, however, in failing either to allow the parties to participate in the communication … , or to give the parties “the opportunity to present facts and legal arguments before a decision on jurisdiction [was] made” … . The court also violated the requirements of the UCCJEA when it failed to create a record of its communication with the Pennsylvania court … . The summary and explanation of the court’s determination following the telephone conference with the Pennsylvania court did not comply with the statutory mandate to make a record of the communication between courts.

We also agree with the father that there are insufficient facts in the record to make a determination, based upon the eight factors set forth in the statute … , regarding which state is the more convenient forum to resolve the issue of custody. “Because Family Court did not articulate its consideration of each of the factors relevant to the . . . petition . . . and we are unable to glean the necessary information from the record, the court’s [implicit] finding that New York was an inconvenient forum to resolve the [custody] petition is not supported by a sound and substantial basis in the record” … . Matter of Beyer v Hofmann, 2018 NY Slip Op 03259, Fourth Dept 5-4-18

FAMILY LAW (UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA), FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT))/UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) (FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT))/CUSTODY (FAMILY LAW, UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA), FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT))/JURISDICTION (FAMILY LAW, UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA), FAMILY COURT DID NOT FOLLOW THE PROCEDURE SET OUT IN THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) BEFORE DETERMINING IT DID NOT HAVE JURISDICTION OVER FATHER’S CUSTODY PROCEEDING, MOTHER HAD BROUGHT A CUSTODY PROCEEDING IN PENNSYLVANIA, MATTER REMITTED (FOURTH DEPT))

May 4, 2018

Attorneys, Family Law

FAMILY COURT SHOULD HAVE INFORMED WIFE OF HER RIGHT TO ASSIGNED COUNSEL WHEN IT BECAME CLEAR SHE WAS HAVING TROUBLE RETAINING AN ATTORNEY, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial in this divorce-custody action, determined Family Court, given the wife’s difficulty in raising money to retain new counsel, should have informed her of her right to assigned counsel pursuant to Family Court Act 262:

… [T]he mother appeared in court, explaining that, although she had retained new counsel, he was unable to attend that day and, therefore, she requested the court to “extend” or “hold off” proceeding with the continuation … . Supreme Court denied the mother’s request for an adjournment, indicating that no notice of appearance had been filed by the mother’s replacement counsel and that it could not rely solely upon her statement that she may be represented by counsel going forward. Supreme Court then proceeded with the trial, informing the mother that, under the circumstances, she was going to have to proceed pro se.

There is nothing in the record to indicate that Supreme Court ever advised the mother of her rights pursuant to Family Ct Act § 262 (a). While we appreciate that the mother initially appeared with retained counsel and Supreme Court granted her a lengthy adjournment to obtain a new attorney, it was incumbent upon the court — particularly in light of the mother’s expressed need for several months to obtain the necessary retainer fee — to advise her of the right to assigned counsel in the event that she could not afford same … . In the absence of the requisite statutory advisement of her right to counsel (see Family Ct Act § 262 [a] [v]) or a valid waiver of such right …, we find that the mother was deprived of her fundamental right to counsel… . DiBella v DiBella, 2018 NY Slip Op 03186, Third Dept 5-3-18

FAMILY LAW (ATTORNEYS, FAMILY COURT SHOULD HAVE INFORMED WIFE OF HER RIGHT TO ASSIGNED COUNSEL WHEN IT BECAME CLEAR SHE WAS HAVING TROUBLE RETAINING AN ATTORNEY, NEW TRIAL ORDERED (THIRD DEPT))/ATTORNEYS (FAMILY LAW, AMILY COURT SHOULD HAVE INFORMED WIFE OF HER RIGHT TO ASSIGNED COUNSEL WHEN IT BECAME CLEAR SHE WAS HAVING TROUBLE RETAINING AN ATTORNEY, NEW TRIAL ORDERED (THIRD DEPT))

May 3, 2018

Arbitration, Contract Law, Family Law, Religion

ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration award by a Rabbinical Court in this divorce proceeding should not have been vacated. The fact that the Equitable Distribution Law was not followed did not warrant vacation of the award because parties can elect to deviate from the Domestic Relations Law (no violation of public policy). The Second Department further held that unconscionability is not a statutory ground for reviewing or setting aside an arbitration award:

Judicial review of an arbitration award is extremely limited (see CPLR 7510, 7511…). “Outside of the narrowly circumscribed exceptions of CPLR 7511, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact'” … .

“An award is irrational only where there is no proof whatever to justify the award” … . Moreover, that showing must be made by clear and convincing evidence … . Here, the very limited record does not even reveal what evidence was submitted to the arbitrators regarding, among other things, the parties’ assets and financial condition. Therefore, the Supreme Court lacked any basis upon which to conclude that the award was irrational.

“An arbitration award violates public policy only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state” … . …

… [W]e disagree with the Supreme Court’s determination that the … award was unconscionable on its face. Unconscionability is a doctrine grounded in contract law, which can be applied to invalidate an agreement to arbitrate … or a marital agreement entered into before or during the marriage … . The doctrine, which requires proof of both procedural unconscionability in the formation of the contract, as well as substantive unconscionability in the terms of the contract … , is not a statutory ground upon which an arbitration award may be reviewed, let alone set aside… . If the arbitral procedure was tainted by corruption, fraud, or misconduct, or the partiality of an arbitrator appointed as a neutral, the proper remedy is to move to vacate the award pursuant to CPLR 7511(b)(1)(i) or (ii). Zar v Yaghoobzar, 2018 NY Slip Op 03170, Second Dept 5-2-18

ARBITRATION (FAMILY LAW, RELIGION, ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))/FAMILY LAW (ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))/CONTRACT LAW (ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))/RELIGION (RABBINICAL COURT, ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))/RABBINICAL COURT (ARBITRATION AWARD BY A RABBINICAL COURT IN THIS DIVORCE PROCEEDING SHOULD NOT HAVE BEEN VACATED, FAILURE TO FOLLOW THE EQUITABLE DISTRIBUTION LAW DID NOT VIOLATE PUBLIC POLICY, UNCONSCIONABILITY IS NOT A STATUTORY GROUND FOR VACATING AN ARBITRATION AWARD (SECOND DEPT))

May 2, 2018

Family Law

WHERE FATHER RELINQUISHED CUSTODY BY CONSENT, HE NEED NOT MAKE A THRESHOLD SHOWING OF A CHANGE IN CIRCUMSTANCES TO BE ENTITLED TO A HEARING ON HIS CUSTODY PETITION, NUMEROUS LEGAL AND FACTUAL ERRORS BY THE JUDGE REQUIRED THAT THIS MATTER BE SENT BACK FOR HEARINGS AND RULINGS ON CUSTODY AND VISITATION ISSUES RAISED BY THE FATHER’S PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition for custody should not have been dismissed without a hearing because his prior relinquishment of custody was by consent and therefore no prior order had been issued denying father custody based upon extraordinary circumstances. Where there exists no prior order denying a parent custody based upon extraordinary circumstances, the parent need not show a change in circumstances to warrant a custody hearing. The Fourth Department went on to find, based on the record before it, that extraordinary circumstances justifying the denial of father’s custody petition existed, but the matter had to be remitted for a determination whether a change in custody was in the best interests of the child (the record was insufficient for an appellate court ruling on that issue). Numerous errors made by the judge and the consequent insufficient record prevented the Fourth Department from ruling on father’s visitation requests, so the matter was remitted for a hearing on that issue as well:

With respect to the father’s alternative request for increased visitation, including overnight visitation with the child, we agree with the father on his cross appeal that the court’s determination to deny that request in part was not based on a sound and substantial basis in the record inasmuch as the court’s written decision is riddled with misstatements and incorrect assertions of fact … . …

“Having revived the [father’s] petition, we are mindful of the fact that we possess the power to conduct an independent review of an adequately developed record” … . We are unable to do so on this record, however, inasmuch as the court precluded the father from presenting relevant evidence with respect to the issue of visitation. We therefore further direct the court on remittal to determine following the hearing whether, if a change in custody is denied, an increase in visitation is nevertheless in the best interests of the child. Matter of Schultz v Berke, 2018 NY Slip Op 02945, Fourth Dept 4-27-18

FAMILY LAW (WHERE FATHER RELINQUISHED CUSTODY BY CONSENT, HE NEED NOT MAKE A THRESHOLD SHOWING OF A CHANGE IN CIRCUMSTANCES TO BE ENTITLED TO A HEARING ON HIS CUSTODY PETITION, NUMEROUS LEGAL AND FACTUAL ERRORS BY THE JUDGE REQUIRED THAT THIS MATTER BE SENT BACK FOR HEARINGS AND RULINGS ON CUSTODY AND VISITATION ISSUES RAISED BY THE FATHER’S PETITION (FOURTH DEPT))/CUSTODY (FAMILY LAW, WHERE FATHER RELINQUISHED CUSTODY BY CONSENT, HE NEED NOT MAKE A THRESHOLD SHOWING OF A CHANGE IN CIRCUMSTANCES TO BE ENTITLED TO A HEARING ON HIS CUSTODY PETITION, NUMEROUS LEGAL AND FACTUAL ERRORS BY THE JUDGE REQUIRED THAT THIS MATTER BE SENT BACK FOR HEARINGS AND RULINGS ON CUSTODY AND VISITATION ISSUES RAISED BY THE FATHER’S PETITION (FOURTH DEPT))/VISITATION (FAMILY LAW, WHERE FATHER RELINQUISHED CUSTODY BY CONSENT, HE NEED NOT MAKE A THRESHOLD SHOWING OF A CHANGE IN CIRCUMSTANCES TO BE ENTITLED TO A HEARING ON HIS CUSTODY PETITION, NUMEROUS LEGAL AND FACTUAL ERRORS BY THE JUDGE REQUIRED THAT THIS MATTER BE SENT BACK FOR HEARINGS AND RULINGS ON CUSTODY AND VISITATION ISSUES RAISED BY THE FATHER’S PETITION (FOURTH DEPT))

April 27, 2018

Contempt, Evidence, Family Law

WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to find father in civil contempt for violation of orders concerning contact with the children should have been granted. The court need not find the violations were willful:

To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753(A)(3), the movant must establish by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court’s order, and (4) prejudice to the right of a party to the litigation … . Prejudice is shown where the party’s actions “were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party” … . In order for contempt sanctions to be imposed pursuant to Judiciary Law § 753(A), “willfulness” need not be shown … . Once the movant makes the required showing, the burden shifts to the alleged contemnor to refute that showing, or to offer evidence of a defense such as an inability to comply with the order … .

Here, the hearing record established that the father violated unequivocal mandates of the Family Court, of which he was aware, by removing the children from school and vacationing with them for a one-week period in 2015 without timely notice to the mother, failing to facilitate daily phone contact between the mother and the children during that period, and failing to complete the required parenting training. The record further demonstrates that the mother was prejudiced by those actions. Contrary to the determination of the court, a finding of willfulness was not required to establish the father’s civil contempt. Matter of Mendoza-Pautrat v Razdan, 2018 NY Slip Op 02790, Second Dept 4-25-18

FAMILY LAW (CIVIL CONTEMPT, WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL CONTEMPT (FAMILY LAW, WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL CONTEMPT, FAMILY LAW, WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT))

April 25, 2018

Contract Law, Family Law

NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that husband did not present sufficient proof to warrant a change in the support provisions of the settlement agreement, as opposed to a child support order. No child support order was in effect at the time the husband sought to reduce the support obligation described in the settlement agreement:

“The case law distinguishes between modification of a separation agreement and that of a divorce decree. A separation agreement that is incorporated into but not merged with a divorce decree is an independent contract binding on the parties unless impeached or challenged for some cause recognized by law. Indeed, courts of this [s]tate enjoy only limited authority to disturb the terms of a separation agreement” … . The husband sought modification of the terms of the agreement with respect to his child support and maintenance obligations, by motion, on the ground that his loss of employment constituted a change in circumstances that warranted modification — a standard that applies to modification of orders and judgments … — but he made no argument that the settlement agreement was invalid. Supreme Court may, upon a proper showing establishing a change in circumstances, modify an order or judgment of divorce that incorporates a settlement agreement. However, the court had no authority under the present circumstances to grant the husband’s motion by modifying the settlement agreement. Abdelrahman v Mahdi, 2018 NY Slip Op 02698, Third Dept 4-19-18

FAMILY LAW (NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/CHILD SUPPORT (NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/SETTLEMENT AGREEMENT (FAMILY LAW, CHILD SUPPORT, MAINTENANCE, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/MAINTENANCE (FAMILY LAW, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, SETTLEMENT AGREEMENT, NO CHILD SUPPORT OR MAINTENANCE ORDER WAS IN EFFECT AT THE TIME HUSBAND MOVED TO REDUCE HIS OBLIGATION BECAUSE OF A LOSS OF EMPLOYMENT, THE CHILD SUPPORT AND MAINTENANCE PROVISIONS OF THE SEPARATION AGREEMENT, WHICH WAS NOT MERGED INTO THE DIVORCE DECREE, CONTROLLED, HUSBAND DID NOT DEMONSTRATE THE SETTLEMENT AGREEMENT WAS INVALID (THIRD DEPT))

April 19, 2018

Criminal Law, Evidence, Family Law

13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, over a two-justice dissenting opinion, affirmed the juvenile delinquent adjudication finding that appellant committed offenses which, if he were an adult, would constitute criminal sexual act, sexual abuse, sexual misconduct and endangering the welfare of a child. It was alleged that appellant, who was 13, put his penis in the anus and mouth of L.F., who was nine. The majority concluded the fact that the appellant’s mother left the room during the police interrogation (at appellant’s request) and the investigator’s having the appellant write a “letter of apology” to the victim during the interrogation did not render the appellant’s confession involuntary. The majority further held that the statements in the medical records made by L.F. during a physical exam were relevant to treatment and therefore admissible to corroborate the confession:

While a parent may choose not to be present when a child is being interviewed, “the police should always ensure that the parent is aware of the right of access to his or her child during questioning,” and if asked to leave, “the parent should be made aware that he or she is not required to leave” … .

To be sure, the presence of a parent is important, as a parent may help a child understand Miranda warnings “so that the child can consciously and voluntarily choose whether to waive or to exercise his constitutional rights to remain silent, to have an attorney present at his questioning, and to have an attorney provided for him without charge if he is indigent” … . A parent present at questioning also is able to “monitor the interrogation lest the police engage in coercive tactics” … .

However, a child does not have an absolute right to the presence of a parent during interrogation, and “it does not follow as a matter of law that a child’s confession obtained in the absence of a parent is not voluntary” … . * * *

… [A]ppellant’s confession is corroborated by the medical records, which were properly admitted into evidence by Family Court. … Hospital records are admissible under the business records exception to the hearsay rule when they reflect “acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects” of the patient’s hospitalization … . Matter of Luis P., 2018 NY Slip Op 02564, First Dept 4-12-18

CRIMINAL LAW (JUVENILE DELINQUENCY, EVIDENCE, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/JUVENILE DELINQUENCY (EVIDENCE, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/CONFESSIONS (JUVENILE DELINQUENCY, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/FAMILY LAW (JUVENILE DELINQUENCY, EVIDENCE, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/HEARSAY (CRIMINAL LAW, HOSPITAL RECORDS, JUVENILE DELINQUENCY, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))/BUSINESS RECORDS (HOSPITAL RECORDS, CRIMINAL LAW, JUVENILE DELINQUENCY, 13-YEAR-OLD APPELLANT’S CONFESSION MADE WITHOUT MOTHER PRESENT WAS ADMISSIBLE, THE INTERROGATOR’S HAVING APPELLANT WRITE A LETTER PURPORTEDLY TO APOLOGIZE TO THE VICTIM DID NOT RENDER THE CONFESSION INVOLUNTARY, STATEMENTS BY THE VICTIM IN MEDICAL RECORDS WERE ADMISSIBLE TO CORROBORATE THE CONFESSION (FIRST DEPT))

April 12, 2018

Family Law, Immigration Law

MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s immigration status did not prevent her from being appointed guardian of her children and Family Court should have made the findings necessary for the children to apply for special immigrant juvenile states (SIJS):

Family Court improperly dismissed the guardianship petitions. Contrary to the court’s determination, the mother was not required to demonstrate that she has “legal status in this country” or had taken steps to obtain such status to qualify as a guardian. “[D]omicile means living in [a] locality with intent to make it a fixed and permanent home” … . An individual’s lack of lawful status in the United States is “immaterial to the issue of his [or her] domicile and, therefore, his [or her] eligibility to receive letters [of guardianship]”… . Here, notwithstanding the mother’s immigration status, the record demonstrates her intent to permanently reside in New York State. Thus, the mother cannot be deemed a “non-domiciliary alien” who is ineligible to receive letters of guardianship … . …

Furthermore, the Family Court should have granted the children’s motions for the issuance of an order making the requisite declaration and specific findings so as to enable them to petition for SIJS. Matter of Alan S. M. C., 2018 NY Slip Op 02459, Second Dept 4-11-18

FAMILY LAW (GUARDIANSHIP, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/GUARDIANSHIP (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (GUARDIANSHIP, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/DOMICILE (FAMILY LAW, GUARDIANSHIP, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, (GUARDIANSHIP, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S IMMIGRATION STATUS DID NOT AFFECT HER STATUS AS A DOMICILIARY OF NEW YORK, HER GUARDIANSHIP PETITIONS SHOULD NOT HAVE BEEN DENIED, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

April 11, 2018

Family Law

EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT).

The Second Department determined extraordinary circumstances warranted the award of custody to a grandparent and the sharing of custody with the parents:

… [T]he Family Court properly found that the paternal grandmother demonstrated the existence of extraordinary circumstances. The children’s parents were either unable or unwilling to provide the children with basic personal hygiene, clean clothes, adequate medical or dental care, or an appropriate place to sleep, and they also lacked insight into the children’s particular needs, which included multiple special needs with respect to one of the children… . In particular, the mother forgot to feed the children on several occasions, and the children often came to school hungry and dressed in dirty clothing that smelled of cat urine and feces. Moreover, the parents did not remedy the situation, despite multiple efforts by school personnel.

After finding the existence of extraordinary circumstances, the Family Court next inquired into what custodial arrangement would serve the children’s best interests. The court properly determined that the children’s best interests would be served by shared legal custody among the paternal grandmother and parents, with primary residential custody to the paternal grandmother and frequent contact and visitation between the parents and the children. Matter of Conroy v Conroy, 2018 NY Slip Op 02462, Second Dept 4-11-18

FAMILY LAW (EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT))/CUSTODY (EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, CUSTODY, EXTRAORDINARY CIRCUMSTANCES WARRANTED THE AWARD OF CUSTODY TO A GRANDPARENT AND THE SHARING OF CUSTODY WITH THE PARENTS (SECOND DEPT))

April 11, 2018

Appeals, Family Law

MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT).

The First Department, reversing Family Court, determined mother was entitled to a ruling from the support magistrate on whether incarceration was recommended based on father’s willful violation of a child support order. Rather than making the recommendation, the support magistrate postponed the ruling and husband continued to violate the order for several months while the Family Court proceedings were ongoing, effectively making it impossible for mother to object or appeal:

The Family Court denied the mother’s objections to the Support Magistrate’s fact-finding order because it found that the order was not “final.” The order cited Family Court Act Section 439(e), which permits objections to a “final” order of a Support Magistrate, and Section 439(a), which provides that a “determination by a Support Magistrate that a person is in willful violation of an order . . . and that recommends commitment . . . shall have no force and effect until confirmed by a judge of the court.” This was error. First, under the plain language of the statute, the Support Magistrate’s fact-finding order was not an order that “shall have no force and effect until confirmed by a judge of the court,” since it did not recommend incarceration. The Support Magistrate’s failure to make a recommendation as to incarceration upon his finding of willfulness essentially constituted a recommendation against incarceration, since the mother could not seek that remedy without a recommendation from the Support Magistrate. Moreover, the parties were entitled to a complete written fact-finding order, including a recommendation as to incarceration, within five court days following completion of the hearing on the mother’s violation petition … . Accordingly, the Family Court should have considered the mother’s objections, and, upon doing so, should have exercised its authority to remand the matter to the Support Magistrate for an immediate recommendation as to incarceration, or to make, with or without holding a new hearing, its own findings of fact and order based on the record … . Matter of Carmen R. v Luis I., 2018 NY Slip Op 02422, First Dept 4-10-18

FAMILY LAW (CHILD SUPPORT, MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT))/CHILD SUPPORT (FAMILY LAW, MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT))/SUPPORT MAGISTRATE (INCARCERATION, MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT))/APPEALS (FAMILY LAW, CHILD SUPPORT, INCARCERATION, MOTHER WAS ENTITLED TO A RECOMMENDATION ON INCARCERATION FROM THE SUPPORT MAGISTRATE WITHIN FIVE DAYS OF THE FINDING HUSBAND WAS IN WILLFUL VIOLATION OF THE SUPPORT ORDER, BECAUSE NO RECOMMENDATION WAS MADE, MOTHER WAS EFFECTIVELY DENIED THE ABILITY TO OBJECT OR APPEAL (FIRST DEPT))

April 10, 2018