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NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence did not support the neglect finding:

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… [W]e agree with the mother that the court erred in determining that she neglected the child inasmuch as the AFC  [attorney for the child] failed to meet her burden of establishing by a preponderance of the evidence that the “child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as a consequence of the mother’s failure to exercise a minimum degree of care … . It is well established that “any impairment to the child[ ] must be clearly attributable to the unwillingness or inability of the mother to exercise a minimum degree of care toward’ [the child] . . . , rather than what may be deemed undesirable parental behavior’ ” … . “Indeed, the statutory test is minimum degree of care — not maximum, not best, not ideal” … . Here, the court concluded that, “on one hand, [the mother] may simply be a mother determined to protect her child. On the other hand, she may be a woman determined to cause emotional harm to the father of their child. In either case, the consequence of this course of action may be emotional harm to [the child]” (emphasis added). While the record establishes that the mother’s conduct has been troubling at times, “there is no indication in the record that the child was . . . impaired or in imminent danger of impairment of her physical, mental, or emotional condition as a result of any acts committed by [the mother]” … . Matter of Ellie Jo L.H., 2018 NY Slip Op 00934, Fourth Dept 2-9-18

FAMILY LAW (NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/NEGLECT (NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))/EVIDENCE (FAMILY LAW, NEGLECT FINDING NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT))

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FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW A SETTLEMENT OF THIS CHILD SUPPORT PROCEEDING, MOTHER AGREED FATHER’S JAIL SENTENCE SHOULD BE SUSPENDED IN RETURN FOR FATHER’S AGREEMENT TO PAY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should not have refused to allow a settlement of this child support proceeding by stipulation. The court had directed that father be jailed for six months for failure to pay child support. Mother agreed that the jail sentence should be suspended in return for immediate payment of $3000 and future payments father could make because of a construction job he had just started:

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We agree with the father that the court erred in refusing to allow the parties to enter into the settlement agreement … . “Stipulations of settlement are favored by the courts and not lightly cast aside” … . “As a general matter, open court stipulations are especially favored by the courts inasmuch as they promote efficient dispute resolution, timely management of court calendars, and the integrity of the litigation process’ ” …  Under the circumstances of this case, we conclude that the court erred in refusing to allow the parties to settle the matter, and we therefore reverse the order and remit the matter to Family Court for further proceedings. If the parties no longer wish to settle, we direct the court to hold a new confirmation hearing. Matter of Soldato v Feketa, 2018 NY Slip Op 00989, Fourth Dept 2-9-18

FAMILY LAW (CHILD SUPPORT, FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW A SETTLEMENT OF THIS CHILD SUPPORT PROCEEDING, MOTHER AGREED FATHER’S JAIL SENTENCE SHOULD BE SUSPENDED IN RETURN FOR FATHER’S AGREEMENT TO PAY (FOURTH DEPT))/CHILD SUPPORT (STIPULATION, FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW A SETTLEMENT OF THIS CHILD SUPPORT PROCEEDING, MOTHER AGREED FATHER’S JAIL SENTENCE SHOULD BE SUSPENDED IN RETURN FOR FATHER’S AGREEMENT TO PAY (FOURTH DEPT))/CIVIL PROCEDURE (FAMILY COURT, STIPULATION, CHILD SUPPORT, FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW A SETTLEMENT OF THIS CHILD SUPPORT PROCEEDING, MOTHER AGREED FATHER’S JAIL SENTENCE SHOULD BE SUSPENDED IN RETURN FOR FATHER’S AGREEMENT TO PAY (FOURTH DEPT))/STIPULATION (FAMILY COURT, CHILD SUPPORT, FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW A SETTLEMENT OF THIS CHILD SUPPORT PROCEEDING, MOTHER AGREED FATHER’S JAIL SENTENCE SHOULD BE SUSPENDED IN RETURN FOR FATHER’S AGREEMENT TO PAY (FOURTH DEPT))/SETTLEMENT (FAMILY COURT, CHILD SUPPORT, STIPULATION, FAMILY COURT SHOULD NOT HAVE REFUSED TO ALLOW A SETTLEMENT OF THIS CHILD SUPPORT PROCEEDING, MOTHER AGREED FATHER’S JAIL SENTENCE SHOULD BE SUSPENDED IN RETURN FOR FATHER’S AGREEMENT TO PAY (FOURTH DEPT))

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FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Austin, determined Surrogate’s Court properly denied the wife’s (Irene’s) motion to dismiss the husband’s estate’s petition to invalidate Irene’s notice of spousal election. Irene and her husband who had both been married before, signed a prenuptial agreement that they would not make a claim to each other’s estates. There was no question both parties signed the agreement, but essential language was missing from the acknowledgments, taken by their respective attorneys as notaries. Both attorneys submitted affidavits stating that the signers were known to them at the time of signing, the information missing from the acknowledgments.  The question came down to whether, by submitting the prenuptial agreement with the invalid acknowledgments, Irene demonstrated conclusively that the petition could not succeed. The Second Department determined the flaw in the acknowledgments can be cured, and the motion to dismiss was therefore properly denied:

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In Galetta v Galetta (21 NY3d 186), the Court of Appeals left unanswered the question of whether a defective acknowledgment of a prenuptial agreement could be remedied by extrinsic proof provided by the notary public who took a party’s signature. For the reasons that follow, we conclude that such proof can remedy a defective acknowledgment. Accordingly, we affirm the order of the Surrogate’s Court, which denied the appellant’s motion to dismiss a petition to invalidate her notice of spousal election. Matter of Koegel, 2018 NY Slip Op 00833, Second Dept 2-7-18

TRUSTS AND ESTATES (FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))/PRENUPTIAL AGREEMENTS (TRUSTS AND ESTATES, FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))/NOTARIES (FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))/ACKNOWLEDGMENTS (NOTARIES, TRUSTS AND ESTATES, LAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))/FAMILY LAW (PRENUPTIAL AGREEMENTS, FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))

CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing Family Court, determined: (1) the presumption of legitimacy applies to a child born to a same-gender married couple after artificial insemination; (2) the presumption was not rebutted; (3) ordering a paternity test was not in the best interests of the child; and (4) the doctrine of equitable estoppel required the dismissal of the paternity petition. The mother inseminated herself with sperm with the consent of the donor. The parties had agreed the sperm donor waived any claims of paternity and any right to custody or visitation. The facts that the written agreement was destroyed and did not comply with the requirements of Domestic Relations Law 73 (formalities required for artificial insemination) did not preclude proof of legitimacy by other means. The opinion is comprehensive and too detailed to fairly summarize here:

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While a workable rubric has not yet been developed to afford children the same protection regardless of the gender composition of their parents’ marriage, and the Legislature has not addressed this dilemma, we believe that it must be true that a child born to a same-gender married couple is presumed to be their child and, further, that the presumption of parentage is not defeated solely with proof of the biological fact that, at present, a child cannot be the product of same-gender parents … . If we were to conclude otherwise, children born to same-gender couples would be denied the benefit of this presumption without a compelling justification. * * *

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… [I]nvocation of the doctrine of equitable estoppel is warranted here “to protect the status interests of [the] child,” who was born to married parents and thereafter lived with them in a family unit … . While the child, now over three years old, was an infant when the paternity proceeding was commenced, we nonetheless find that petitioner’s representations in donating sperm combined with his delay in asserting parental rights compel against ordering a test. While young, the child’s “image of her family” — consisting of two mothers — would be devastated by an outsider, who merely donated sperm, belatedly asserting parental rights … . Matter of Christopher YY. v Jessica ZZ., 2018 NY Slip Op 00495, Third Dept 1-25-18

FAMILY LAW (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/LEGITIMACY, PRESUMPTION OF (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/PATERNITY (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/EQUITABLE ESTOPPEL (FAMILY LAW, PATERNITY, CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/SAME-GENDER MARRIAGE (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/ARTIFICIAL INSEMINATION (FAMILY LAW, PATERNITY, (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/PARENTAL RIGHTS (ARTIFICIAL INSEMINATION, CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))

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FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, in a full-fledged opinion by Justice Lynch, determined the child was entitled to findings which would enable him to apply for special immigrant juvenile status. The court explained the relevant steps in the immigration process:

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In November 2015, Family Court granted the petition of Ericza K. and appointed her as the permanent guardian of her brother, Jose YY., born in 2000 (hereinafter the child). In April 2016, the child moved for a threshold order that would enable him to petition the United States Citizenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status (hereinafter SIJS) which, in turn, would enable him to obtain lawful permanent residency in the United States … . A child seeking SIJS from USCIS must first obtain a special findings order from a state court with jurisdiction over the juvenile, which must determine that (1) the child is under 21 years of age, (2) the child is unmarried, (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by that court, (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis under state law, and (5) it would not be in the child’s best interests to be returned to his or her native country … . Upon such an application, the role of Family Court is to render specific findings as to the above criteria, with the ultimate determination as to whether to grant SIJS to a child to be made by USCIS and its parent agency, the Department of Homeland Security … . Correspondingly, it is not Family Court’s role to render an immigration determination … . * * *

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.. .[W]e conclude, upon our independent review of the record, that returning the child to Honduras would not be in his best interests … . The child testified that his father died in 2003 and his mother in 2012, and their death certificates are consistent with such testimony. After his mother’s death, he lived with an older sister who operated a billiards business, where the child was fearful and exposed to people smoking, drinking and using cocaine in his presence. That sister has since relocated to Virginia, and the child no longer has family residing in Honduras. In sharp contrast, his guardian has provided a stable home for the child where he feels safe and is attending school … . Matter of Jose YY. (Ericza K.), 2018 NY Slip Op 00375, Third Dept 1-18-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY LAW, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))

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FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made the findings to enable a child to petition for special immigrant juvenile status:

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… [T]he record supports a finding that reunification of the child with one or both of his parents is not viable due to parental neglect and abandonment … . The child testified that, while in El Salvador, although he was approached by gang members to join their gang during his walk to school, his parents did not make any arrangements for his transportation to and from school to ensure his safety or do anything to deter such recruitment activities although aware of such activities and the fact that a neighborhood boy, who resisted the gang’s efforts, was killed while traveling to another village … . Moreover, the child testified that his parents strongly encouraged him to leave the family home in El Salvador but did not provide alternate living arrangements and have not supported him since his arrival in New York.

Accordingly, the Family Court should have granted the petitioner’s motion for the issuance of an order, inter alia, making specific findings so as to enable the child to petition for SIJS. Since the record is sufficient for this Court to make its own findings of fact and conclusions of law, we find that reunification of the child with one or both of his parents is not viable due to parental neglect and abandonment. Matter of Nelson A. G.-L. (Maria Y. G. S.), 2018 NY Slip Op 00289, Second Dept 1-17-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD HAVE MADE THE FINDINGS NECESSARY TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

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JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the juvenile delinquency petition was jurisdictionally defective and dismissed it:

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For the petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent’s commission thereof … . Such allegations must be set forth in the petition and/or the supporting depositions … . The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count … . Here, neither the petition nor the supporting deposition provided sworn, nonhearsay allegations as to the appellant’s age, which is an element of the crime of unlawful possession of weapons by persons under 16 … . Matter of Ricki I., 2018 NY Slip Op 00291, Second Dept 1-17-18

FAMILY LAW (JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))/JUVENILE DELINQUENCY (FAMILY LAW, JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))/CRIMINAL LAW (JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))/WEAPON, UNLAWFUL POSSESSION (FAMILY LAW, JUVENILE DELINQUENCY PETITION JURISDICTIONALLY DEFECTIVE, PETITION ALLEGING UNLAWFUL POSSESSION OF A WEAPON DISMISSED (SECOND DEPT))

RECORD DID NOT SUPPORT TERMINATION OF MOTHER’S PARENTAL RIGHTS DESPITE HER VIOLATION OF TERMS OF SUSPENDED JUDGMENT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the record did not support the termination of mother’s parental rights based on a violation of the terms of a suspended judgment:

Here, a preponderance of the evidence supported a finding that the mother failed to comply with certain conditions set forth in the suspended judgment. However, the evidence did not support the Family Court’s conclusion that it was in the best interests of the children to terminate the mother’s parental rights … .

,,, [T]he testimony elicited at the hearing demonstrated that the children emphatically wanted to be with the mother, that the mother regularly visited with the children until the court suspended all contact, and that there is a strong bond between the children and their mother. Further, the mother had not used illegal substances for a substantial period of time, was committed to her recovery, regularly attended AA meetings, completed programs related to issues of anger and domestic violence, obtained an order of protection against her abuser, and engaged in mental health treatment. In addition, while the court determined that the mother violated the terms of the suspended judgment, in large part, based on a finding that she failed to comply with a provision mandating ongoing involvement in a specified parenting class, the mother completed that class prior to the conclusion of the hearing.

Under these facts, we find that termination of the mother’s parental rights was not in the best interests of the children … . Matter of Skyler G. (Heather G.), 2018 NY Slip Op 00288, Second Dept 1-17-18

FAMILY LAW (PARENTAL RIGHTS, RECORD DID NOT SUPPORT TERMINATION OF MOTHER’S PARENTAL RIGHTS DESPITE HER VIOLATION OF TERMS OF SUSPENDED JUDGMENT (SECOND DEPT))/PARENTAL RIGHTS, TERMINATION (RECORD DID NOT SUPPORT TERMINATION OF MOTHER’S PARENTAL RIGHTS DESPITE HER VIOLATION OF TERMS OF SUSPENDED JUDGMENT (SECOND DEPT))/SUSPENDED JUDGMENT (FAMILY LAW, PARENTAL RIGHTS, RECORD DID NOT SUPPORT TERMINATION OF MOTHER’S PARENTAL RIGHTS DESPITE HER VIOLATION OF TERMS OF SUSPENDED JUDGMENT (SECOND DEPT))

LEAVING A 16 MONTH OLD CHILD UNATTENDED IN A BATHTUB WITH FOUR INCHES OF WATER CONSTITUTED NEGLECT, FAMILY COURT REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s leaving unattended for several minutes a 16-month-old child in a bathtub with four inches of water constituted neglect. The child drowned:

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In our view, this evidence was more than sufficient to establish a prima facie case of neglect. Fundamentally, a reasonably prudent person would not leave a 16-month-old child unattended in a bathtub filled with four inches of water for any appreciable amount of time … . Through her own statement, respondent estimated that she was absent for 1 to 10 minutes. Doing so was “intrinsically dangerous” and has resulted in a heartbreaking tragedy for this family … . Where, as here, a prima facie case has been established, it became respondent’s obligation to offer “a reasonable and adequate explanation for how the child sustained the injury”… . Respondent opted not to testify and did not call any witnesses. Consequently, we conclude on the record before us that the petition should have been granted. Matter of Leah VV. (Theresa WW.), 2018 NY Slip Op 00201, Third Dept 1-11-18

FAMILY LAW (NEGLECT, LEAVING A 16 MONTH OLD CHILD UNATTENDED IN A BATHTUB WITH FOUR INCHES OF WATER CONSTITUTED NEGLECT, FAMILY COURT REVERSED (THIRD DEPT))/NEGLECT (FAMILY LAW, LEAVING A 16 MONTH OLD CHILD UNATTENDED IN A BATHTUB WITH FOUR INCHES OF WATER CONSTITUTED NEGLECT, FAMILY COURT REVERSED (THIRD DEPT))

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NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT).

The Second Department, reversing Family Court, determined that the appellant did not have an intimate relationship with petitioner and therefore Family Court did not have jurisdiction over the family offense proceeding against appellant and could not issue an order of protection. Even though the order of protection had expired, the continuing reputational consequences of the order of protection justified determining the appeal:

The petitioner is the live-in girlfriend of the appellant's brother. The petitioner and the appellant live in the same building, on different floors. The petitioner filed a family offense petition against the appellant, alleging that she had physically attacked and verbally threatened her. * * *

The Family Court is a court of limited jurisdiction, and “cannot exercise powers beyond those granted to it by statute”… . “Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed criminal acts that occur between spouses or former spouses, or between parent and child or between members of the same family or household'” … . “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . Expressly excluded from the ambit of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” … . Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis … . Relevant factors include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … .

Here, the parties have no direct relationship and are only connected through a third party, who is the petitioner's live-in boyfriend and the appellant's brother. Additionally, the parties have never resided together and their contact with one another has been purely by happenstance, as they live in the same building. Accordingly, they do not have an intimate relationship within the meaning of Family Court Act § 812(1)(e). Matter of Royster v Murray, 2018 NY Slip Op 00151, Second Dept 1-10-18

FAMILY LAW (NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/FAMILY OFFENSES (FAMILY COURT, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/INTIMATE RELATIONSHIP (FAMILY COURT, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/CRIMINAL LAW (FAMILY OFFENSES, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/APPEALS (FAMILY LAW, FAMILY OFFENSES, ORDER OF PROTECTION, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/ORDER OF PROTECTION (APPEALS, FAMILY LAW, FAMILY OFFENSES, ORDER OF PROTECTION, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))

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