Family Law – Page 95 – New York Appellate Digest

COURT IMPROPERLY DELEGATED ITS AUTHORITY BY ALLOWING MOTHER TO CANCEL VISITATION IF FATHER WAS MORE THAN 15 MINUTES LATE (SECOND DEPT).

The Second Department determined Family Court should not have given mother the power to cancel father’s visit with a child if the father was more than 15 minutes late:

The Family Court erred in granting the mother the authority to unilaterally cancel the father’s visitation if he were more than 15 minutes late to pick up or drop off the child. This provision did not give the father an opportunity to judicially challenge the mother’s determination, or to present a legitimate reason for his tardiness before having a visit canceled … . Thus, the court improperly delegated its authority to the mother to determine when the child would visit with the father … . Matter of Michael R. v Aliesha H., 2017 NY Slip Op 08377, Second Dept 11-29-17

FAMILY LAW (VISITATION, COURT IMPROPERLY DELEGATED ITS AUTHORITY BY ALLOWING MOTHER TO CANCEL VISITATION IF FATHER WAS MORE THAN 15 MINUTES LATE (SECOND DEPT))/VISITATION (FAMILY LAW, COURT IMPROPERLY DELEGATED ITS AUTHORITY BY ALLOWING MOTHER TO CANCEL VISITATION IF FATHER WAS MORE THAN 15 MINUTES LATE (SECOND DEPT))

November 29, 2017

Evidence, Family Law

EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME, INFORMATION FIRST LEARNED IN A LINCOLN HEARING CANNOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT).

The Third Department, reversing Family Court and remitting the case, determined the record did not support the awarding of sole custody to the maternal grandmother, in this appeal by the parents:

While we accord considerable deference to Family Court’s credibility assessments and factual findings on appeal, we conclude from our review of the trial testimony, without factoring in the Lincoln hearing, that petitioner failed to meet her threshold burden of establishing extraordinary circumstances. The record indicates that the mother and the father were only briefly incarcerated, during which time the children resided with the paternal grandmother — not the maternal grandmother. Upon their release, the mother and the father soon moved into the paternal grandmother’s home and the father obtained full-time employment — a sequence that does not establish an extended disruption of the mother and the father’s custody … . Moreover, while DSS made a finding of neglect, a DSS representative informed Family Court … that DSS did not have any ongoing child protective concerns. In doing so, DSS recognized that the father’s brother, a level one sex offender, lived in the paternal grandmother’s home. There is no evidence that the brother ever mistreated the children… . The father testified that he trusts his brother to be around the children, but would not and does not leave the children alone with him. The mother is not employed and is at home with the children.

As for the maternal grandmother, the record shows that she has never spent more than a couple of hours with the children and would only see them a few times each year. …

Family Court’s decision … raises an additional concern. Specifically, the court’s reference to “another male whose presence around children is questionable” — a person that the court then characterized as an undesirable — is not based on any testimony during the trial. As explained by the Court of Appeals in Matter of Lincoln v Lincoln (24 NY2d 270 [1969]), any new information adverse to the parents derived during a Lincoln hearing may not be considered by the court “without in some way checking on its accuracy during the course of the open hearing” … . Under the circumstances presented, we conclude that the matter must be remitted to Family Court for further proceedings to address the circumstances concerning the other male in the paternal grandmother’s home and to determine whether or not there has been a showing of extraordinary circumstances based on the totality of the evidence and, if so, what disposition is in the best interests of the children. Matter of Shaver v Bolster, 2017 NY Slip Op 08232, Third Dept 11-22-17

FAMILY LAW (CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/CUSTODY (FAMILY LAW, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/GRANDPARENTS (FAMILY LAW, CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, MODIFICATION OF CUSTODY, EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME (THIRD DEPT))/EVIDENCE (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))/LINCOLN HEARING (FAMILY LAW, EVIDENCE FIRST LEARNED IN A LINCOLN HEARING MAY NOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT))

November 22, 2017

Evidence, Family Law

EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the evidence did not support child abuse and neglect findings against the respondent mother. Injuries to the child were caused by father. But the evidence did not support the finding that mother knew or should have known father had injured the child:

Based upon our review of the evidence in this record, we cannot conclude that respondent knew or should reasonably have known that she was placing the younger child in danger by leaving him in the care of his father while she went to work. Respondent consistently maintained, in her testimony and in her various statements to law enforcement and a Child Protective Services caseworker, that she did not know how the fractures had occurred, that she did not think the father had caused them and that, prior to observing redness and swelling in the child’s leg … , she had not noticed anything unusual or concerning with respect to the younger child. …

Nor do we find that respondent neglected the younger child by failing to seek medical care for the child when she observed redness and swelling in his leg … . Respondent testified that the child was not crying, that she thought the redness and swelling could be a reaction to vaccines that the child had a few days earlier and that she continually monitored the child’s condition that evening and throughout the next day. According to respondent, prior to leaving for work the following morning, she directed the father to monitor the child’s leg and let her know if it got worse. Respondent testified that she checked in with the father on her lunch break, scheduled an appointment with the child’s pediatrician for immediately after work and instructed the father to take the child to the doctor earlier if he determined that it could not wait. Under these circumstances, the record does not support a finding that respondent neglected the younger child by, as petitioner contends, failing to secure prompt medical attention … . Matter of Lucien HH. (Michelle PP.), 2017 NY Slip Op 08224, Third Dept 11-22-17

FAMILY LAW (CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/CHILD ABUSE (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/NEGLECT (FAMILY LAW, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))/EVIDENCE (FAMILY LAW, CHILD ABUSE, NEGLECT, EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT))

November 22, 2017

Criminal Law, Family Law

FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reversing Family Court, found that the charged family offenses of aggravated harassment and assault third were not supported by proof of physical injury:

… [T]he petitioner failed to establish by a fair preponderance of the evidence that the appellant committed the family offenses of aggravated harassment and assault in the third degree. Both of those family offenses require proof of physical injury, which is defined as “impairment of physical condition or substantial pain” … . Contrary to the Family Court’s determination, the evidence presented at the fact-finding hearing failed to adequately demonstrate that the petitioner suffered a physical injury as a result of the conduct alleged in the petition … . Since the court’s factual determinations were not supported by the record, we vacate the finding that the appellant committed the family offenses of aggravated harassment and assault in the third degree … .. Inasmuch as the petitioner has not raised any alternative grounds for affirmance of the order of protection … , under the circumstances, we reverse the order of protection, deny the family offense petition, and dismiss the proceeding … . Matter of Stanislaus v Stanislaus, 2017 NY Slip Op 08274, Second Dept 11-22-17

FAMILY LAW (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/CRIMINAL LAW (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/AGGRAVATED HARASSMENT (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/ASSAULT THIRD DEGREE (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))/FAMILY OFFENSES (FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT))

November 22, 2017

Contract Law, Family Law

STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined the child support provisions of a stipulation complied with the Child Support Standards Act (CSSA) and were enforceable. The Third Department further found that the proper standard for an upward modification of support was that which was agreed to in the stipulation:

The stipulation, as well as the order of support, recite that the parties had been advised of and fully understood the child support provisions of the CSSA and that the application of the statute would result in the presumptively correct amount of child support to be awarded. The stipulation then sets forth the presumptive amount of child support that would be awarded under the CSSA and the agreed-upon figures used to calculate that amount, states that the parties are deviating from the presumptive amount and provides a detailed explanation of the reasons for the deviation therefrom. Thus, the opt out provisions of the stipulation fully comply with the CSSA … . That the judgment of divorce does not explicitly set forth the CSSA recitals is not determinative, as the statute only requires the inclusion of such recitals in the “agreement or stipulation . . . presented to the court for incorporation in an order or judgment” … .

Generally, a party seeking modification of a child support provision derived from an agreement or stipulation incorporated but not merged into a judgment of divorce has the burden of proving, insofar as is relevant here, “that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the children are not being adequately met”… . “The parties are free, however, to agree to different terms triggering a change in the obligations of the payor spouse, including the application of a standard other than substantial unanticipated and unreasonable change in circumstances as the basis for determining a modification application, provided that . . . the children’s personal right to receive adequate support is not adversely affected and public policy is not offended” … . Here, the parties’ 1999 stipulation expressly provides that either party may petition a court for a modification of child support based upon “a change of circumstances.” Through this clear and unqualified language, the parties plainly expressed an intent to dispense with the “unanticipated and unreasonable change of circumstances” standard in favor of a less burdensome “change of circumstances” standard … . Matter of Frederick-Kane v Potter, 2017 NY Slip Op 08219, Third Dept 11-22-17

FAMILY LAW (CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/CHILD SUPPORT (FAMILY LAW, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, STIPULATION, CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/STIPULATION (FAMILY LAW, CHILD SUPPORT, STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))/UPWARD MODIFICATION (FAMILY LAW, CHILD SUPPORT, , STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT))

November 22, 2017

Family Law

FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), REUNIFICATION WITH A PARENT AND RETURN TO INDIA WERE NOT IN THE CHILD’S BEST INTERESTS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made the requisite findings to allow the juvenile to apply for special immigrant juvenile status (SIJS):

… [A] special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interests to be returned to his or her previous country of nationality or country of last habitual residence… .

Based upon our independent factual review, we find that reunification of the child with his father is not a viable option due to parental neglect, which includes the infliction of excessive corporal punishment and requiring the child to begin working at the age of 15 instead of attending school on a regular basis … . The record also supports a finding that it would not be in the child’s best interests to be returned to India … . Matter of Gurwinder S., 2017 NY Slip Op 08272, Second Dept 11-22-17

FAMILY LAW (FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), REUNIFICATION WITH A PARENT AND RETURN TO INDIA WERE NOT IN THE CHILD’S BEST INTERESTS (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY LAW, (FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), REUNIFICATION WITH A PARENT AND RETURN TO INDIA WERE NOT IN THE CHILD’S BEST INTERESTS (SECOND DEPT))/IMMIGRATION (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), REUNIFICATION WITH A PARENT AND RETURN TO INDIA WERE NOT IN THE CHILD’S BEST INTERESTS (SECOND DEPT))

November 22, 2017

Civil Procedure, Family Law

ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the appellate division, determined that, with respect to a child who has been removed from the home and placed in foster care based upon a pending neglect petition, once the underlying neglect petition has been dismissed, Family Court loses jurisdiction of the matter and cannot entertain permanency hearings to continue the foster care placement:

Here, the Department seizes on a hyperliteral reading of [Family Court Act] section 1088, divorced from all context, to argue that Family Court’s pre-petition placement of Jamie J. under (Family Court Act] section 1022 triggered a continuing grant of jurisdiction that survives the eventual dismissal of the neglect petition. In other words, even if the Family Court removes a child who has not been neglected or abused, it has jurisdiction to continue that child’s placement in foster care until and unless it decides otherwise. Section 1088’s place in the overall statutory scheme, the legislative history of article 10-A, and the dictates of parents’ and children’s constitutional rights to remain together compel the opposite conclusion: Family Court’s jurisdiction terminates upon dismissal of the original neglect or abuse petition. Matter of Jamie J. (Michelle E.C.), 2017 NY Slip Op 08161, CtApp 11-20-17

FAMILY LAW (ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/NEGLECT (FAMILY LAW, ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/FOSTER CARE (FAMILY LAW, ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/PERMANENCY HEARINGS (FAMILY LAW, NEGLECT, ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/CIVIL PROCEDURE (FAMILY LAW, JURISDICTION, ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/JURISDICTION (CIVIL PROCEDURE, FAMILY LAW, (ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))

November 20, 2017

Family Law

QDRO WAS ENTERED IN VIOLATION OF THE SEPARATION AGREEMENT, SUPREME COURT SHOULD HAVE VACATED THE QDRO, LACHES INAPPLICABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the qualified domestic relations order (QDRO) should have been vacated because the separation agreement called for the QDRO to terminate upon the wife’s (plaintiff’s) remarriage, which took place in 1995. The doctrine of laches was inapplicable:

“A QDRO obtained pursuant to a separation agreement can convey only those rights . . . which the parties [agreed to] as a basis for the judgment’ “… . Thus, it is well established that “a court errs in granting . . . a QDRO more expansive than an underlying written separation agreement” … , regardless whether the parties or their attorneys approved the QDRO without objecting to the inconsistency … . Under such circumstances, the court has the authority to vacate or amend the QDRO as appropriate to reflect the provisions of the separation agreement … . Here, the QDRO should never have been entered in the first instance because the clear and unambiguous language of the separation agreement provided that plaintiff’s rights in defendant’s pension benefits had terminated upon her remarriage.

We reject plaintiff’s contention that defendant is barred by laches from seeking to vacate the QDRO. “The defense of laches requires both delay in bringing an action and a showing of prejudice to the adverse party” … . Even assuming, arguendo, that there was a delay in seeking to vacate the QDRO, we conclude that plaintiff has not demonstrated that she was prejudiced by that delay … . Santillo v Santillo, 2017 NY Slip Op 08155, Fourth Dept 11-17-17

FAMILY LAW (QDRO WAS ENTERED IN VIOLATION OF THE SEPARATION AGREEMENT, SUPREME COURT SHOULD HAVE VACATED THE QDRO, LACHES INAPPLICABLE (FOURTH DEPT))/QUALIFIED DOMESTIC RELATIOINS ORDER (QDRO) (QDRO WAS ENTERED IN VIOLATION OF THE SEPARATION AGREEMENT, SUPREME COURT SHOULD HAVE VACATED THE QDRO, LACHES INAPPLICABLE (FOURTH DEPT))’LACHES (FAMILY LAW. MOTION TO VACATE QDRO, QDRO WAS ENTERED IN VIOLATION OF THE SEPARATION AGREEMENT, SUPREME COURT SHOULD HAVE VACATED THE QDRO, LACHES INAPPLICABLE (FOURTH DEPT))

November 17, 2017

Family Law

RELOCATION AND CUSTODY MODIFICATION ISSUES REQUIRED A HEARING FOCUSING ON THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the relocation/custody modification issues required a hearing focusing on the best interests of the child:

We agree with the father that the court erred in giving him a deadline to relocate within the 15-mile radius provided in the [Separation] Agreement without conducting a hearing, and that the court further erred in denying that part of the father’s cross motion seeking modification of the custody and visitation provisions of the Agreement, also without conducting a hearing. …

While ” [a] hearing is not automatically required whenever a parent seeks modification of a custody order’ ” … , here we conclude that the combined effect of the parties’ “relocation[s] was a change of circumstances warranting a reexamination of the existing custody arrangement” at an evidentiary hearing … . While the parties’ Agreement provided that the father must reside within a 15-mile radius of the mother’s residence upon her relocation, the overriding consideration in determining whether to enforce such a provision is the child’s best interests … .. It is impossible to determine on this record the effect on the child of enforcing or modifying the Agreement, and we conclude that the parties should be afforded an opportunity to present evidence concerning the child’s best interests. Shaw v Shaw, 2017 NY Slip Op 08138, Fourth Dept 11-17-17

FAMILY LAW (RELOCATION AND CUSTODY MODIFICATION ISSUES REQUIRED A HEARING FOCUSING ON THE BEST INTERESTS OF THE CHILD (FOURTH DEPT))/CUSTODY (FAMILY LAW, RELOCATION AND CUSTODY MODIFICATION ISSUES REQUIRED A HEARING FOCUSING ON THE BEST INTERESTS OF THE CHILD (FOURTH DEPT))

November 17, 2017

Contract Law, Family Law

SEPARATION AGREEMENT REQUIRED BOTH PARENTS TO CONTRIBUTE TO COLLEGE EXPENSES BUT DID NOT INDICATE HOW MUCH EACH PARTY SHOULD CONTRIBUTE, AGREEMENT BREACHED BY WIFE’S FAILURE TO PAY ANYTHING, FAMILY COURT TO DETERMINE EACH PARENT’S APPROPRIATE CONTRIBUTION (THIRD DEPT).

The Third Department determined the separation agreement should not have been interpreted to require that the cost of college tuition be split 50-50. The agreement simply capped each party’s contribution at 50%. Family Court must determine the proper contribution based upon resources. The wife’s failure to pay anything, however, violated the agreement:

Here, the parties agreed to “share in the costs of the child’s higher education,” with such contribution being capped at 50% of tuition at a state university, plus the cost of reasonable living expenses. By its plain language, the disputed provision unequivocally demonstrates that the parties intended to encourage and facilitate the child’s pursuit of a college degree and to make some financial contribution — up to, but not necessarily equaling, 50% of the total cost of tuition at a state university — toward that pursuit. In agreeing to contribute, the parties did not use language such as “split” or “50-50,” despite such language appearing elsewhere in the separation agreement, including in the sections addressing dependent care expenses and the cost of health insurance coverage. Given the appearance of such language elsewhere in the agreement, its absence in the relevant provision is telling, as it suggests that the parties did not intend, as Family Court found, to equally split the total cost of the child’s college tuition — subject to the cap — and living expenses … .. Furthermore, while the separation agreement provided that each party’s financial exposure would not exceed the tuition cap, it stopped short of defining the parties’ respective obligations. The absence of language defining their obligations does not render the provision ambiguous. Rather, by its omission, it is apparent that the parties contemplated a later agreement between themselves and, failing that, a subsequent determination by the court as to their respective contributions … .Thus, while we agree that the mother’s failure to contribute anything toward the cost of the child’s college education constituted a willful violation of the separation agreement, Family Court erred in concluding that the parties intended to equally share the total cost of the child’s college tuition and living expenses, subject to the tuition cap, and entering a judgment against the mother in the amount of $28,377.50. Matter of Dillon v Dillon, 2017 NY Slip Op 08062, Second Dept 11-15-17

FAMILY LAW (SEPARATION AGREEMENT REQUIRED BOTH PARENTS TO CONTRIBUTE TO COLLEGE EXPENSES BUT DID NOT INDICATE HOW MUCH EACH PARTY SHOULD CONTRIBUTE, AGREEMENT BREACHED BY WIFE’S FAILURE TO PAY ANYTHING, FAMILY COURT TO DETERMINE EACH PARENT’S APPROPRIATE CONTRIBUTION (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, SEPARATION AGREEMENT REQUIRED BOTH PARENTS TO CONTRIBUTE TO , OLLEGE EXPENSES BUT DID NOT INDICATE HOW MUCH EACH PARTY SHOULD CONTRIBUTE, AGREEMENT BREACHED BY WIFE’S FAILURE TO PAY ANYTHING, FAMILY COURT TO DETERMINE EACH PARENT’S APPROPRIATE CONTRIBUTION (THIRD DEPT))/SEPARATION AGREEMENT (FAMILY LAW, CONTRACT LAW, SEPARATION AGREEMENT REQUIRED BOTH PARENTS TO CONTRIBUTE TO COLLEGE EXPENSES BUT DID NOT INDICATE HOW MUCH EACH PARTY SHOULD CONTRIBUTE, AGREEMENT BREACHED BY WIFE’S FAILURE TO PAY ANYTHING, FAMILY COURT TO DETERMINE EACH PARENT’S APPROPRIATE CONTRIBUTION (THIRD DEPT))/COLLEGE EXPENSES (FAMILY LAW, SEPARATION AGREEMENT REQUIRED BOTH PARENTS TO CONTRIBUTE TO COLLEGE EXPENSES BUT DID NOT INDICATE HOW MUCH EACH PARTY SHOULD CONTRIBUTE, AGREEMENT BREACHED BY WIFE’S FAILURE TO PAY ANYTHING, FAMILY COURT TO DETERMINE EACH PARENT’S APPROPRIATE CONTRIBUTION (THIRD DEPT))

November 15, 2017

COURT IMPROPERLY DELEGATED ITS AUTHORITY BY ALLOWING MOTHER TO CANCEL VISITATION IF FATHER WAS MORE THAN 15 MINUTES LATE (SECOND DEPT).

EVIDENCE DID NOT SUPPORT THE AWARD OF SOLE CUSTODY OF THE CHILDREN TO THE MATERNAL GRANDMOTHER, MATTER REMITTED FOR FURTHER INQUIRY ABOUT A LEVEL ONE SEX OFFENDER IN THE HOME, INFORMATION FIRST LEARNED IN A LINCOLN HEARING CANNOT BE RELIED UPON WITHOUT FURTHER INVESTIGATION (THIRD DEPT).

EVIDENCE DID NOT SUPPORT CONCLUSION THAT MOTHER WAS OR SHOULD HAVE BEEN AWARE FATHER HAD INJURED THE CHILD, CHILD ABUSE AND NEGLECT FINDINGS REVERSED (THIRD DEPT).

FAMILY OFFENSES OF AGGRAVATED HARASSMENT AND ASSAULT THIRD NOT SUPPORTED BY PROOF OF PHYSICAL INJURY (SECOND DEPT).

STIPULATION COMPLIED WITH THE CHILD SUPPORT STANDARDS ACT AND STATED THE PROPER STANDARD FOR AN UPWARD MODIFICATION OF SUPPORT (THIRD DEPT).

FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), REUNIFICATION WITH A PARENT AND RETURN TO INDIA WERE NOT IN THE CHILD’S BEST INTERESTS (SECOND DEPT).

ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP).

QDRO WAS ENTERED IN VIOLATION OF THE SEPARATION AGREEMENT, SUPREME COURT SHOULD HAVE VACATED THE QDRO, LACHES INAPPLICABLE (FOURTH DEPT).

RELOCATION AND CUSTODY MODIFICATION ISSUES REQUIRED A HEARING FOCUSING ON THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

SEPARATION AGREEMENT REQUIRED BOTH PARENTS TO CONTRIBUTE TO COLLEGE EXPENSES BUT DID NOT INDICATE HOW MUCH EACH PARTY SHOULD CONTRIBUTE, AGREEMENT BREACHED BY WIFE’S FAILURE TO PAY ANYTHING, FAMILY COURT TO DETERMINE EACH PARENT’S APPROPRIATE CONTRIBUTION (THIRD DEPT).

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