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SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the separation agreements were unconscionable. Defendant wife was represented by counsel in the divorce, plaintiff husband was not, there was a vast difference in assets, wife’s pensions were not valued, and financial disclosure was not complete. The matter was sent back for new rulings on equitable distribution and maintenance:

 

A separation agreement should be set aside as unconscionable where it is “such as no person in his or her senses and not under delusion would make on the one hand, and as no honest and fair person would accept on the other . . . , the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” … . We note that the unconscionability or inequality of a separation agreement may be the result of overreaching by one party to the detriment of another … .

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Here, at the time the parties entered into the agreements, defendant wife was represented by counsel but plaintiff was not, which, while not dispositive, is a significant factor for us to consider … . Another factor to consider is that the agreements did not make a full disclosure of the finances of the parties … . In particular, defendant, who had a master’s degree in business administration and was a professor at a SUNY college, would receive two pensions upon retirement, neither of which was valued. The separation agreement did not provide for any maintenance for plaintiff despite the gross disparity in incomes and the length of the marriage and, while the modification agreement provided maintenance for plaintiff, it also required plaintiff to transfer his interest in the marital residence to defendant. In opposition to the motion, defendant averred that the parties “wanted an agreement whereby [plaintiff] would keep his income and retirement assets and I would keep mine.” As shown by their statements of net worth, which were prepared after the agreements were executed, plaintiff’s assets totaled approximately $77,000 whereas defendant’s assets, which included the marital residence, totaled approximately $740,000. Based on our consideration of all the factors, we conclude that the agreements here are unconscionable and were the product of overreaching by defendant and thus should be set aside … . Tuzzolino v Tuzzolino, 2017 NY Slip Op 08991, Fourth Dept 12-22-17

 

FAMILY LAW (SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))/SEPARATION AGREEMENTS (FAMILY LAW, SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))/UNCONSCIONABLE (FAMILY LAW,  MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))/DIVORCE (SEPARATION AGREEMENTS UNCONSCIONABLE, MATTER REMITTED FOR NEW EQUITABLE DISTRIBUTION AND MAINTENANCE FINDINGS (FOURTH DEPT))

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THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGED BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, over a two-justice dissenting opinion, determined the negligence action against the Jewish Child Care Association (JCCA) properly survived summary judgment. The JCCA placed a 29-week-old child with a foster mother (Pineda). The child was left in the care of the teenaged boyfriend of Pineda’s daughter and suffered brain damage at the hands of the boyfriend:

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The record suggests that JCCA may have been negligent in at least five respects. First, the agency placed the child in Ms. Pineda’s home when he was a newborn, even though it had previously determined that children under five should not be placed with her because she was working or looking for work, and that her home required “stabilizing,” because her 16 year-old-daughter had recently given birth to a baby with special needs. Second, JCCA failed to ensure that an appropriate child care plan was in place after it had determined that Ms. Pineda was employed outside the home, as the applicable regulation requires… .. Moreover, there is no evidence that JCCA had ever advised Ms. Pineda that she needed to seek approval of her child care plan. Third, JCCA had notice, prior to the date on which the child was injured, that at least one unauthorized person was caring for him, but failed to take any action to rectify this, violating its own rules and the relevant regulation … . Fourth, JCCA’s contract with Ms. Pineda stated merely that she was not to leave the infant plaintiff without competent supervision. This violates the applicable regulation, entitled “Certification or approval of foster family homes,” which requires agencies to have foster parents acknowledge in writing that they will not “leave children under the age of 10 years alone without competent adult supervision” … . Moreover, Ms. Pineda testified that she was never advised that she was not permitted to leave a foster child in the care of someone under 18. Finally, … JCCA had failed to visit the home for a three-month period, in violation of its own requirement of at least two contacts per month, with at least one to take place in the home. Under these circumstances, a jury could find that, had the agency followed the applicable regulations and its own rules, the special needs infant plaintiff might never have been left alone with a teenager already caring for his own special needs infant, and who was prohibited from caring for the infant foster child.

Where the acts of a third person intervene between a defendant’s negligent conduct and a plaintiff’s injury, the causal connection between the two is not severed as a matter of law. Rather, liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. De’L. A. v City of New York, 2017 NY Slip Op 08897, First Dept 12-21-17

 

NEGLIGENCE (THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))/FOSTER CARE (NEGLIGENCE, PLACEMENT AGENCY, THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))/PLACEMENT AGENCY (FOSTER CARE, THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))/FAMILY LAW (FOSTER CARE, PLACEMENT AGENCY, THE NEGLIGENCE ACTION AGAINST THE AGENCY WHICH PLACED A BABY IN A FOSTER HOME WHERE THE BABY WAS INJURED BY THE TEENAGE BOYFRIEND OF THE FOSTER MOTHER’S DAUGHTER PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT))

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FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT).

The Third Department determined the fact that father’s sister was a supervisor in St. Lawrence County Department of Social Services (SLCDSS) did not present a conflict of interest such that SLCDSS could not prosecute a neglect petition. Family Court had transferred the matter to the Jefferson County Department of Social Services (JCDSS):

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In SLCDSS’s papers submitted in response to petitioner’s motion, SLCDSS noted that the father’s sister is a grade A supervisor in its Child Preventive Services Unit and, in light of the neglect petition, the case would be transferred from the Child Protective Unit to the Child Preventive Services Unit. The mere fact, however, that the father’s sister was employed with SLCDSS as a supervisor does not justify disqualifying SLCDSS from prosecuting the neglect petition, especially where SLCDSS does not demonstrate that such fact created actual prejudice or a substantial risk of an abuse of confidence … . Moreover, the record discloses that since Family Court’s order, SLCDSS has taken steps to ensure that the father’s sister has no supervisory role in the father’s case. In view of the foregoing, we find that no conflict of interest exists prohibiting SLCDSS from prosecuting the neglect proceeding … . Matter of Gage II. (Rachel JJ.), 2017 NY Slip Op 08931, Third Dept 12-21-17

FAMILY LAW (MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/MUNICIPAL LAW (FAMILY LAW, DSS, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))/NEGLECT (FAMILY LAW, MUNICIPAL LAW, CONFLICT OF INTEREST, FACT THAT FATHER’S SISTER WORKED FOR ST LAWRENCE COUNTY DSS (SLCDSS) DID NOT CREATE A CONFLICT OF INTEREST, SLCDSS CAN PROSECUTE THE NEGLECT PETITION (THIRD DEPT))

MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department determined grandmother had met her burden showing extraordinary circumstances warranting the award of custody to her. The matter was remitted for a determination whether the grandmother’s custody was in the best interests of the child. The court noted that Family Court should not have dismissed mother’s petition for custody for failure to show a change in circumstances. Custody was previously awarded to grandmother by consent:

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“[W]here, as here, a parent seeks to regain custody from a nonparent . . .[,] it is well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter” … .A prior “consent order, standing alone, does not constitute a judicial finding [or an admission] of surrender, abandonment, unfitness, neglect or other extraordinary circumstances” … .

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As to the issue of extraordinary circumstances, as relevant here, a grandparent “may make the requisite showing of extraordinary circumstances . . . by establishing that there has been an ‘extended disruption of custody'” … . An extended disruption of custody includes, “but [is] not limited to, a prolonged separation of the . . . parent and the child for a least [24] continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the . . . grandparent” … . When considering whether the parent voluntarily relinquished care and control of the child and the child resided with the grandparent for the requisite period of time, factors to consider “‘include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role'” …  .

Once the maternal grandmother met her threshold burden, Family Court was obligated to determine what disposition would be in the child’s best interests … . Matter of Christy T. v Diana T., 2017 NY Slip Op 08916, Third Dept 12-21-17

 

FAMILY LAW (MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT))/CUSTODY (NONPARENT, MOTHER’S PETITION TO REGAIN CUSTODY FROM GRANDMOTHER SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO DEMONSTRATE A CHANGE IN CIRCUMSTANCES BECAUSE THE AWARD OF CUSTODY TO GRANDMOTHER WAS BY CONSENT, GRANDMOTHER DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO HER, MATTER REMITTED FOR HEARING TO DETERMINE BEST INTERESTS OF THE CHILD (THIRD DEPT))

RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, over a two-justice dissent, determined that the evidence did not support removing the child from the mother’s custody:

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Although a prolonged separation between a parent and child may support a finding of extraordinary circumstances… , here, the limited record does not warrant a finding of extraordinary circumstances on this basis. The grandmother was the primary physical custodian for most of the younger child’s life, but there is no claim or evidence that the mother abdicated her responsibilities, and the record indicates that she had unsupervised parenting time with both children since 2004 and has been a joint custodian since at least December 2014 … . The history of neglect is relevant …, but the mother’s history — though tragic — was remote and there was no evidence or claim that she has failed to comply with the recommendations and obtain the treatment offered by DSS in recent times or that she has failed to remain involved in the children’s lives … . … While we acknowledge that Family Court had due cause for concern, absent extraordinary circumstances, we necessarily must find that the mother is entitled to retain custody of the younger child … . Although certainly not dispositive, it is important to recognize that the attorneys for the children have both supported the mother’s appeal.

Even were we to accept that the prior history established a basis for finding extraordinary circumstances, given that the grandmother allowed the children to reside with the mother since September 2015 and refused to resume her role as primary physical custodian, there has clearly been a change of circumstances … . The record otherwise shows that the mother has provided a stable home and appropriate medical care for the younger child, who has maintained excellent grades in school and participates in positive extracurricular activities, such as the boy scouts. From our reading of the Lincoln hearing, we do not get the impression that the younger child’s testimony was coached. As such, we would also conclude that the placement of physical custody with the mother is in the younger child’s best interests. Matter of Connie VV. v Cheryl XX., 2017 NY Slip Op 08913, Third Dept 12-21-17

 

FAMILY LAW (CUSTODY, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))/CUSTODY (FAMILY LAW, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))

PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT).

The Second Department, reversing Family Court, determined the proof did not support the termination of father’s parental rights:

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An order terminating parental rights may be granted where the parent “abandoned [the] child for the period of six months immediately prior to the date on which the petition is filed in the court” … . Abandonment must be proven by clear and convincing evidence … .

Here, the agency failed to establish, by clear and convincing evidence, that during the relevant period of time the father evinced an intent to forgo his parental rights and obligations … . The record demonstrates that once the father had sufficient reason to believe he might be the father, he took action to assert his paternity …  and sought to have contact with the child, filed petitions for custody, visited with the child on two occasions and attempted to visit on a third occasion, and brought the child snacks, toys, and clothes during the visits. In addition, the father spoke with the caseworker on the phone on multiple occasions, paid child support in the amount of $25 per month, and provided the caseworker with information about where he was living, who he was living with, and about a daycare where he would enroll the child. Under these circumstances, the Family Court should have denied the petition on the merits, and dismissed the proceeding … . Matter of Darrell J. D. J. (Kenneth R.), 2017 NY Slip Op 08826, Second Dept 12-2017

FAMILY LAW (PARENTAL RIGHTS, PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT))/PARENTAL RIGHTS (FAMILY LAW, PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT))/ABANDONMENT (PARENTAL RIGHTS, PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT))

FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined that Family Court had jurisdiction to issue a final order of protection, based upon the violation of a temporary order of protection, after the underlying family offense petition (which led to the temporary order of protection) had been dismissed:

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Petitioner Lisa T. filed a family offense petition against respondent King E.T., who is her husband and the father of her child. Petitioner requested and received a temporary order of protection, ex parte, at her first appearance in Family Court. The temporary order of protection directed respondent to refrain from all communications with petitioner except those relating to visitation arrangements and emergencies regarding the child. It is undisputed that respondent was served with, and had knowledge of, this order. Throughout a series of subsequent court appearances concerning the family offense petition — at which respondent was present with one exception — the temporary order of protection was extended. While the family offense proceeding remained pending, petitioner filed two violation petitions, later consolidated into a single petition, alleging that respondent had contacted her in contravention of the temporary orders of protection.

Family Court held a combined hearing on the family offense and consolidated violation petitions. … Family Court dismissed the family offense petition, but sustained the violation petition and issued a one-year final order of protection precluding respondent from, among other things, communicating with petitioner except as necessary to make arrangements for respondent’s visitation with the child.

Family Court Act §§ 846 and 846-a contain no language tying Family Court’s authority to impose specific penalties for the willful violation of a temporary order of protection to the court’s determination of whether or not the family offense petition, itself, should be sustained … . Significantly, there is no basis in the statutory text upon which we may draw any distinction between Family Court’s jurisdiction over violations of final orders of protection entered after a finding of a family offense, on the one hand, and violations of temporary orders of protection entered during the pendency of the family offense proceeding, on the other. Further, the statutory scheme makes clear that conduct constituting a violation of the order of protection need not necessarily constitute a separate family offense in order for the court to have jurisdiction over the violation. Indeed, section 846-a contains no such requirement. Matter of Lisa T. v King E.T., 2017 NY Slip Op 08800, CtApp 12-19-17

 

FAMILY LAW (FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP))/JURISDICTION  (FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP))/ORDER OF PROTECTION (FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP))/FAMILY OFFENSES (FAMILY COURT MAINTAINED JURISDICTION TO ISSUE A FINAL ORDER OF PROTECTION FOR VIOLATION OF A TEMPORARY ORDER OF PROTECTION AFTER THE FAMILY OFFENSES, WHICH LED TO THE TEMPORARY VIOLATION OF PROTECTION, HAD BEEN DISMISSED (CT APP))

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ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT).

The Second Department determined Family Court properly refused father’s untimely request  to proceed pro se in this termination of parental rights proceeding:

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A parent in a proceeding pursuant to Social Services Law § 384-b to terminate parental rights has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]). A parent, however, may waive the right to counsel and opt for self-representation … . However, the right to self-representation is “not . . . unfettered” … . In order to invoke the right to defend pro se, “(1) the request [must be] unequivocal and timely asserted, (2) there [must be] a knowing and intelligent waiver of the right to counsel, and (3) the defendant [must not have] engaged in conduct which would prevent the fair and orderly exposition of the issues”… . “An application is timely interposed when it is asserted before the trial commences'”… . “If the request is made thereafter, the right is severely constricted’ and the trial court must exercise its sound discretion and grant the request only under compelling circumstances”… .

Here, the Family Court providently exercised its discretion in denying the father’s request to represent himself since it was untimely, and the father proferred no compelling circumstances to justify the need to grant the application … . Matter of Sarah J. A. (Ramadan G. O.-A.), 2017 NY Slip Op 08661, Second Dept 12-13-17

 

FAMILY LAW (ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))/ATTORNEYS (FAMILY LAW , ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))/PARENTAL RIGHTS (FAMILY LAW , ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))/PRO SE (FAMILY LAW , ALTHOUGH FATHER HAD THE RIGHT TO WAIVE COUNSEL AND PROCEED PRO SE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, FAMILY COURT PROPERLY REFUSED HIS UNTIMELY REQUEST (SECOND DEPT))

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FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTORS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, modifying Family Court’s custody/relocation ruling, determined Family Court relinquished its fact-finding role by adopting the findings and recommendations of the forensic evaluator, in the face of the evaluator’s obvious bias in favor of the father. Family Court had granted sole custody to the father in North Carolina, without evaluating the custody/relocation-modification factors, despite the child’s life-long residence in New York and evidence of a supportive home life:

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In its decision and order, Family Court recognized that the testimony given by the forensic evaluator “demonstrated[,] at times[,] a little less than neutral tone” and that it was apparent from her testimony that she was “challenged in her dealings” with the mother and her husband. Nevertheless, Family Court wholly adopted the forensic evaluator’s factual assertions, opinions, conclusions and recommendations, without any perceivable independent consideration given to the best interests of the child. In doing so, the court improperly delegated its fact-finding role and ultimate determination to the forensic evaluator… . We emphasize that “[t]he recommendations of court[-]appointed experts are but one factor to be considered” and, although entitled to some weight, such recommendations are not determinative and should not usurp the trial court’s independent impressions of the evidence and conclusions drawn from that evidence … . …

…[I]n granting the father sole legal and primary physical custody of the child, Family Court did not engage in an assessment of the relocation factors … . Had the court done so, it would have been apparent that the father’s proof was lacking in this regard. Neither the father nor the forensic evaluator offered demonstrable proof, such as photographs or a home study, as to the suitability of the father’s home. In commenting on the quality of the father’s home environment, the forensic evaluator relied solely on her assumptions and the self-serving representations made by the father. Matter of Montoya v Davis, 2017 NY Slip Op 08434, Third Dept 11-30-17

 

FAMILY LAW (FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTS (THIRD DEPT))/EVIDENCE (FAMILY LAW, CUSTODY-RELOCATION MODIFICATION, FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTS (THIRD DEPT))/CUSTODY (FAMILY LAW, CUSTODY-RELOCATION MODIFICATION, FAMILY COURT RELINQUISHED ITS FACT-FINDING FUNCTION TO THE BIASED FORENSIC EVALUATOR AND FAILED TO CONSIDER THE CUSTODY-RELOCATION MODIFICATION FACTS (THIRD DEPT))

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FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT TO AN EXPEDITED HEARING PURSUANT TO FAMILY COURT ACT 1028, BECAUSE THE ISSUE IS IMPORTANT AND LIKELY TO RECUR THE MOOTNESS DOCTRINE WAS NOT APPLIED TO PRECLUDE APPEAL (SECOND DEPT).

The Second Department, in a comprehensive, full-fledged opinion by Justice Mastro (not fully summarized here), reversing Family Court, determined father, who had been excluded from the home because of sexual abuse allegations involving a child, was entitled to an expedited hearing pursuant to Family Court Act 1028. Although the father had been returned to the home by the time the appeal was heard, the court deemed the issue important and likely to recur thereby warranting an exception to the mootness doctrine:

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Since the removal of a child from the family home and the exclusion of a parent from that same home require equal showings of imminent risk, and both result in similar infringements on the constitutionally protected parent-child relationship, we conclude that both trigger the same due process protections. Accordingly, in cases such as the one before us, where no “imminent risk” hearing is held before the parent is excluded from the household and the parent-child relationship is thereby severed, the holding of an expedited hearing within three court days pursuant to Family Court Act § 1028, upon the parent’s request, is mandated so that the question of reunification of the parent and child pending resolution of the proceeding may be determined. Due process requires the parent’s prompt, full, and fair opportunity to contest his or her exclusion from daily interaction with his or her children in this manner. Matter of Elizabeth C. (Omar C.), 2017 NY Slip Op 08370, Second Dept 11-29-17

 

FAMILY LAW (FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT TO AN EXPEDITED HEARING PURSUANT TO FAMILY COURT ACT 1028, BECAUSE THE ISSUE IS IMPORTANT AND LIKELY TO RECUR THE MOOTNESS DOCTRINE WAS NOT APPLIED TO PRECLUDE APPEAL (SECOND DEPT))/APPEALS (MOOTNESS DOCTRINE, FAMILY LAW, FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT TO AN EXPEDITED HEARING PURSUANT TO FAMILY COURT ACT 1028, BECAUSE THE ISSUE IS IMPORTANT AND LIKELY TO RECUR THE MOOTNESS DOCTRINE WAS NOT APPLIED TO PRECLUDE APPEAL (SECOND DEPT))/MOOTNESS DOCTRINE (APPEALS, FAMILY LAW, FATHER WHO WAS EXCLUDED FROM THE HOME AFTER CHILD ABUSE ALLEGATIONS HAD A RIGHT TO AN EXPEDITED HEARING PURSUANT TO FAMILY COURT ACT 1028, BECAUSE THE ISSUE IS IMPORTANT AND LIKELY TO RECUR THE MOOTNESS DOCTRINE WAS NOT APPLIED TO PRECLUDE APPEAL (SECOND DEPT))

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