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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))

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))

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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))

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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))

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))

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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))

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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))

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