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WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT).

The Third Department, over a concurring opinion, determined the wife in this divorce proceeding raised a question of fact about the validity of the prenuptial agreement:

Viewing the evidence in a light most favorable to the wife, we find that the wife carried her burden of raising a material issue of fact. In opposition to the husband’s motion, the wife submitted an affidavit in which she provided a contrasting version of events surrounding the execution of the prenuptial agreement. She stated therein that shortly before the wedding day, the husband presented her with a prenuptial agreement. The wife, on the advice of her counsel, told the husband that she could not sign it or marry him unless he made some changes — namely, that she would get half the value of the land and house where they resided and 50% of everything they acquired during the marriage. The wife further averred that, on “the very day before the wedding” and as she was making final preparations for the wedding, the husband presented her with a revised prenuptial agreement, told her that he had made the requested changes and assured her that she would be taken care of for the rest of her life.

Moreover, the wife stated that she was given this new prenuptial agreement while standing outside the County Clerk’s office and that the husband “didn’t really give [her] time to even read the document, let alone take it back to the lawyer to look at it again.” She stated that she was feeling stressed and pressured with the wedding planning and “just signed the document.” These facts, if credited, give rise to the inference of overreaching … . Carter v Fairchild-Carter, 2018 NY Slip Op 02230, Third Dept 3-29-18

FAMILY LAW (PRENUPTIAL AGREEMENT, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, PRENUPTIAL AGREEMENT, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))/PRENUPTIAL AGREEMENT (FAMILY LAW, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))/OVERREACHING (FAMILY LAW, CONTRACT LAW, PRENUPTIAL AGREEMENT, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))

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ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT).

The Fourth Department determined that, although father could not seek modification of an out of state support order under the Uniform Interstate Family Support Act (UIFSA), he could seek modification under the Full Faith and Credit for Child Support Orders Act (FFCCSOA), which was deemed to preempt the UIFSA:

In order to modify an out-of-state child support order under the Uniform Interstate Family Support Act ([UIFSA] Family Ct Act art 5-B), the order must be registered in New York and, in relevant part, the following conditions must be present: “(i) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state; (ii) a petitioner who is a nonresident of this state seeks modification; and (iii) the respondent is subject to the personal jurisdiction of the tribunal of this state” … . Although the New Jersey child support order was registered in New York, the father is the petitioner and he is a resident of New York. Therefore, under the UIFSA, the father could not properly bring the petition for modification of the New Jersey child support order in New York. The father could, however, properly bring the petition for modification in New York under the Full Faith and Credit for Child Support Orders Act … . Under the FFCCSOA, a New York court may modify an out-of-state child support order if “the court has jurisdiction to make such a child support order pursuant to [28 USC § 1738B] subsection (i)” and, in relevant part, “the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child’s State or the residence of any individual contestant” … . Here, neither the parties nor the child continued to reside in New Jersey, and New Jersey therefore ceased to have continuing, exclusive jurisdiction … .

Although the UIFSA and the FFCCSOA “have complementary policy goals and should be read in tandem”… , the UIFSA and the FFCCSOA conflict when applied to these facts, and we conclude that the FFCCSOA preempts the UIFSA here. The FFCCSOA “is so comprehensive in scope that it is inferable that Congress intended to fully occupy the field of its subject matter” … . Matter of Reynolds v Evans, 2018 NY Slip Op 02077, Fourth Dept 3-23-18

FAMILY LAW (SUPPORT, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/SUPPORT (FAMILY LAW, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/CIVIL PROCEDURE (FAMILY LAW, PREEMPTION, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/PREEMPTION (FAMILY LAW, SUPPORT, ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/UNIFORM INTERSTATE FAMILY SUPPORT ACT (ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))/FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT ( ALTHOUGH FATHER COULD NOT SEEK MODIFICATION OF A NEW JERSEY SUPPORT ORDER UNDER THE UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) HE COULD SEEK MODIFICATION UNDER THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA) WHICH PREEMPTS THE UIFSA (FOURTH DEPT))

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COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Peradotto, reversing Supreme Court, determined the court did not have the power to impute income to the defendant for the purpose of determining defendant’s eligibility for assigned counsel in a Family Court Act custody/visitation matter. Defendant was a PhD student living with his parents and had very little income. After a hearing, Supreme Court imputed $50,000 in annual income to the defendant, making him ineligible for assigned counsel:

… [A] person facing potential jail time for willfully violating court orders has a significant stake in the proceedings, and the legislature has guaranteed an equal playing field between the parties by providing such a person with assigned counsel if he or she is financially unable to obtain private counsel… . Moreover, to the extent that the court is concerned that defendant could bring serial modification petitions with impunity, thereby causing plaintiff to repeatedly expend her personal funds, we note that sanctions may be imposed for frivolous conduct …  and, in an appropriate case, a court may preclude a party from filing new petitions without permission of the court where the record establishes that the party has abused the judicial process by engaging in meritless, frivolous or vexatious litigation … . We thus conclude that the court erred in determining that it was authorized to impute income to defendant in determining his eligibility for assigned counsel and, based upon the documentation provided by defendant indisputably establishing that he “is financially unable to obtain” counsel … . Carney v Carney, 2018 NY Slip Op 02034, Fourth Dept 3-23-18

FAMILY LAW (ATTORNEYS, COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT))/ATTORNEYS (FAMILY LAW, ASSIGNED COUNSEL,  COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT))/ASSIGNED COUNSEL (FAMILY LAW, COURT DOES NOT HAVE THE POWER TO IMPUTE INCOME TO A PARTY IN FAMILY COURT ACT CUSTODY-VISITATION PROCEEDINGS FOR THE PURPOSE OF DETERMINING THE PARTY’S ELIGIBILITY FOR ASSIGNED COUNSEL, SUPREME COURT REVERSED (FOURTH DEPT))

FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT).

The Fourth Department determined father’s motion to modify visitation should not have been denied without a hearing. The existing order allowed father visitation under mutually agreed circumstance. Father alleged mother had prohibited visitation for three years:

Although “[a] court cannot delegate its authority to determine visitation to either a parent or a child” … , it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances … . Where, as here, a prior order provides for visitation as the parties may mutually agree, a party who is unable to obtain visitation pursuant to that order “may file a petition seeking to enforce or modify the order” … .

We agree with the father that the court erred in dismissing the modification petition without a hearing inasmuch as the father made “a sufficient evidentiary showing of a change in circumstances to require a hearing”… . Contrary to the mother’s contention, upon giving the petition a liberal construction, accepting the facts alleged therein as true, and according the father the benefit of every favorable inference… , we conclude that the father adequately alleged a change of circumstances insofar as the visitation arrangement based upon mutual agreement was no longer tenable given that the mother purportedly denied the father any contact with the child … . In addition, we note that, although the father is now incarcerated, there is a rebuttable presumption that visitation is in the child’s best interests … . Matter of Kelley v Fifield, 2018 NY Slip Op 02110, Fourth Dept 3-23-18

FAMILY LAW (VISITATION, FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT))/VISITATION (FAMILY LAW, MODIFICATION OF MUTUALLY AGREED VISITATION, FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT))

GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT).

The Second Department determined the paternal grandparents had automatic standing to seek visitation upon father’s death. The court further determined visitation was in the best interests of the children, despite the animosity of mother (not caused by the grandparents):

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry … . First, it must find that the grandparent has standing, based on the death of a parent or equitable circumstances … . “Where either parent of the grandchild has died, the grandparents have an absolute right to standing” … . Once the court concludes that the grandparent has established standing to petition for visitation, the court must then determine if visitation is in the best interests of the child … . …

Animosity alone is insufficient to deny visitation … .Here, the estrangement between the paternal grandparents and the children resulted from the animosity between the mother and the paternal grandparents, and the record supported the forensic evaluator’s determination that the paternal grandparents’ conduct was not the cause of the animosity … . Matter of Mastronardi v Milano-Granito, 2018 NY Slip Op 01923, Second Dept 3-21-18

FAMILY LAW (GRANDPARENTS, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/VISITATION (FAMILY LAW, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/DOMESTIC RELATIONS LAW (VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))/STANDING (FAMILY LAW, VISITATION, GRANDPARENTS HAD AUTOMATIC STANDING TO SEEK VISITATION UPON DEATH OF FATHER, VISITATION WAS IN THE BEST INTERESTS OF THE CHILDREN DESPITE THE ANIMOSITY OF MOTHER (SECOND DEPT))

SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the separation agreement met the statutory requirement of the adoption statute. The petitioner therefore had standing to adopt without her spouse and her petition should not have been dismissed:

Domestic Relations Law § 110 dictates who has standing to adopt, and should be strictly construed in harmony with the legislative purpose that adoption is a means of securing the best possible home for a child … . As relevant here, an “adult married person who is living separate and apart from his or her spouse . . . pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded . . . may adopt another person” without his or her spouse … .

A separation agreement may contain substantive provisions settling marital issues such as equitable distribution and maintenance … . However, “[t]he agreement is simply intended as evidence of the authenticity and reality of the separation'” … . Thus, for example, where the substantive provisions of a separation agreement have been invalidated as unconscionable, the agreement “generally . . . may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement” in providing grounds for a conversion divorce under Domestic Relations Law § 170(6) … .

Here, the separation agreement evidences the parties’ agreement to live separate and apart. The agreement is in writing, subscribed by the parties thereto, and acknowledged in the form required to entitle a deed to be recorded … . Therefore, it satisfies the statutory requirement of the adoption statute with respect to a separation agreement … . Matter of Jason (Sonia O.), 2018 NY Slip Op 01922, Second Dept 3-21-18

FAMILY LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/ADOPTION (SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/SEPARATION AGREEMENT (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))/DOMESTIC RELATIONS LAW (ADOPTION, SEPARATION AGREEMENT MET THE CRITERIA OF THE ADOPTION STATUTE, PETITION TO ADOPT SHOULD NOT HAVE BEEN DISMISSED FOR LACK OF STANDING (SECOND DEPT))

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FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Department of Social Services made reasonable efforts to prevent or eliminate the need for the temporary removal of the children while the neglect petition is pending. The court noted that Family Court did not have the power to find a foster home for the family’s cat:

… [T]he court lacked the authority to order it to find a foster home for respondents’ cat, and we therefore further modify the order accordingly. “Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … , or by the New York Constitution (see NY Const, art VI, § 13). Inasmuch as animals are property … , and Family Court does not have jurisdiction over matters concerning personal property, we conclude that the court exceeded its authority in directing petitioner to find foster care for respondents’ cat. Matter of Ruth H. (Marie H.), 2018 NY Slip Op 01840, Fourth Dept 3-16-18

FAMILY LAW (PETS, FOSTER CARE, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))/FOSTER CARE (FAMILY LAW, PETS, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))/PETS (FAMILY LAW, FOSTER CARE, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))

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PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the child, Tabitha, should not have been removed from her foster home and placed with her maternal grandmother:

… T]he determination of the Family Court that it was in Tabitha’s best interests to be removed from her foster home, where she had resided for over four years, and to be placed in the kinship foster home of the maternal grandmother lacks the requisite sound and substantial basis in the record … . In determining the best interests of the child, “[t]here is no presumption that the children’s best interests will be better served by a return to a family member” … . Indeed, ” Social Services Law § 383(3) gives preference for adoption to a foster parent who has cared for a child continuously for a period of 12 months or more, while members of the child’s extended biological family are given no special preference with regard to custody'”… . “Moreover, while the law expresses a preference for keeping siblings together, the rule is not absolute and may be overcome where the best interests of each child lie in residing apart” … . Here, the court gave inappropriate weight to this preference, as Tabitha and her brother only shared a household with the maternal grandmother for the first five months of Tabitha’s life (see id.). Moreover, the record reveals that Tabitha has closely bonded with her foster family and remains healthy, happy, and well-provided for … . Therefore, the court erred in determining that it was in Tabitha’s best interests to be moved to the kinship foster home of the maternal grandmother rather than remain with her foster mother for the purpose of adoption, which the record shows is the intent of the foster mother … . Matter of Tabitha T. S. M. (Tracee L. M.–Candace E.), 2018 NY Slip Op 01468, Second Dept 3-7-18

FAMILY LAW (PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))/CUSTODY (FAMILY LAW, PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))/FOSTER CARE  (PLACEMENT OF THE CHILD WITH THE MATERNAL GRANDMOTHER RATHER THAN WITH HER FOSTER HOME WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT))

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ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT).

The First Department determined plaintiff mother was entitled to the infant plaintiff’s foster care records in connection with her claim that SCO Family Services negligently certified the individual defendant as a foster parent, and failed to properly supervise the foster home:

Pursuant to Social Services Law § 372(1), SCO was required to maintain records while the children were in foster care. Those records are confidential, but are discoverable pursuant to article 31 of the CPLR (Social Services Law § 372[3]). The statutory confidentiality requirement is intended to protect the privacy of children in foster care and their natural parents … , not to prevent former foster children from obtaining access to their own records.

When a former foster child “seeks her own records, so she can further her own suit against the defendant custodian of those records, who would otherwise have unequal access to them”… , she is “presumptively entitled to her own records” and “only a powerfully compelling showing would justify the court in potentially restricting” her access to the records … .

In this case, the court properly undertook in camera review of the foster care records to ensure that no private information of nonparties would be disclosed. However, the court erred in determining that the identities of ACS caseworkers, mental health professionals and other professionals should be redacted. Plaintiffs sought access to those witnesses to determine whether they had any relevant knowledge, and SCO did not articulate any privacy interests of those professionals that would warrant redacting their names from the foster care records. K.B. v SCO Family of Serv., 2018 NY Slip Op 01400, Second Dept 3-1-18

FAMILY LAW (FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/CIVIL PROCEDURE (FAMILY LAW, FOSTER CARE, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/DISCOVERY (FAMILY LAW, FOSTER CARE,  ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/FOSTER CARE (DISCOVERY, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))/NEGLIGENCE (DISCOVERY, FOSTER CARE RECORDS, ALTHOUGH FOSTER CARE RECORDS ARE CONFIDENTIAL, A FOSTER CHILD IS ENTITLED TO HER OWN FOSTER CARE RECORDS WITHOUT THE REDACTION OF THE NAMES OF CASEWORKERS AND OTHER PROFESSIONALS (FIRST DEPT))

DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined that the court erred in awarding custody to the father without an evidentiary hearing. Mother had repeatedly promised to return with the children from New Mexico but did not. Although Family Court was justifiably irked by the mother’s behavior, a custody hearing was still required:

We do … agree with the mother that Family Court erred in granting the father’s custody petition without conducting an evidentiary hearing. “[C]ustody determinations should generally be made only after a full and plenary hearing and inquiry”… . A court’s final custody determination must be based on admissible evidence and not on, as relevant here, “information provided at court appearances by persons not under oath”… .

The record reveals that Family Court’s ultimate custody and visitation determination was made only after a few preliminary court appearances in which no witness gave sworn testimony or documentary evidence was received, and there is no indication that Family Court considered the various factors relative to the best interests of the children. While Family Court was justifiably irked at the mother’s actions in frustrating the purpose of the court’s prior orders, such actions, although certainly relevant, are not solely dispositive in this case on the issues of custody and visitation … . Because Family Court “did not possess sufficient information to render an informed determination that was consistent with the children’s best interests”… , the matter must be remitted for a full evidentiary hearing on the father’s custody petition. Matter of Richard T. v Victoria U., 2018 NY Slip Op 01364, Third Dept 3-1-18

FAMILY LAW (CUSTODY, DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT))/CUSTODY (FAMILY LAW, DESPITE MOTHER’S FAILURE TO COMPLY WITH SEVERAL DIRECTIONS BY THE COURT THAT SHE RETURN TO NEW YORK WITH THE CHILDREN, FATHER SHOULD NOT HAVE BEEN AWARDED CUSTODY IN THE ABSENCE OF A FULL HEARING (THIRD DEPT))

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