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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:

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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” … .

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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))

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):

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… [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))

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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:

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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))

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:

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“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))

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:

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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))

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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:

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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))

THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT).

The Second Department determined Family Court properly found that a child (Nasir) was not derivatively abused based upon proof father had injured the two other children, but should have found the child derivatively neglected:

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“[P]roof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent” … . Contrary to the contention of ACS [Administration for Children’s Services), the Family Court properly found that ACS failed to establish that Nasir was derivatively abused by the father … . However, we agree with ACS that it established, by a preponderance of the evidence … , that the father derivatively neglected Nasir … . “The focus of the inquiry to determine whether derivative neglect is present is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood. Such flawed notions of parental responsibility are generally reliable indicators that a parent who has abused one child will place his or her other children at substantial risk of harm” …  The father’s physical abuse of Nyair demonstrated a fundamental defect in his understanding of parental duties relating to the care of children, placing Nasir in imminent danger of impairment of his physical, mental, or emotional condition… . Accordingly, the court should have made a finding that the father derivatively neglected Nasir. Matter of Nyair J. (Vernon J.), 2017 NY Slip Op 07729, Second Dept 11-8-17

 

FAMILY LAW (NEGLECT, THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))/NEGLECT (THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))/DERIVATIVE NEGLECT (THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))/ABUSE (FAMILY LAW, THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))/DERIVATIVE ABUSE (FAMILY LAW, THIRD CHILD SHOULD HAVE BEEN FOUND TO HAVE BEEN DERIVATIVELY NEGLECTED BASED UPON PROOF FATHER INJURED THE TWO OTHER CHILDREN (SECOND DEPT))

DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT).

The Second Department determined Family Court should not have made a finding of derivative neglect based upon a prior ACD (adjournment in contemplation of dismissal) which is not a determination on the merits:

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“Where a person’s conduct toward one child demonstrates a fundamental defect in the parent’s understanding of the duties of parenthood, or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in his or her care, an adjudication of derivative neglect with respect to the other children is warranted” … . ” In determining whether a child born after the underlying acts of neglect should be adjudicated as a child who was derivatively neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct that formed the basis for a finding of neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists'” … . However, “[a]n ACD is emphatically not a determination on the merits. It is not akin to a finding of parental neglect, but, rather, it leaves the question unanswered” … .

Here, the Family Court did not enter a finding of neglect against the father in 2015. Instead, it entered an ACD against him based on his admission that he failed to provide a stable home for the child. Moreover, the DSS did not seek to reopen the earlier proceeding to establish the father’s neglect based on his failure to comply with the conditions set forth by the court. Under these circumstances, the court erred in entering a finding of derivative neglect against the father … . Matter of Delilah D. (Richard D.), 2017 NY Slip Op 07724, Second Dept 11-8-17

 

FAMILY LAW (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))/NEGLECT  (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))/DERIVATIVE NEGLECT  (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))/ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))/ACD  (DERIVATIVE NEGLECT FINDING CANNOT BE BASED UPON A PRIOR ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) WHICH IS NOT A DETERMINATION ON THE MERITS (SECOND DEPT))

ALTHOUGH CHILD RESIDED WITH NON-PARENT FOR A NUMBER OF YEARS, THE ARRANGEMENT WAS TEMPORARY TO ALLOW FATHER TO ATTEND LAW SCHOOL, NON-PARENT’S PETITION FOR CUSTODY PROPERLY DISMISSED WITHOUT A HEARING (SECOND DEPT).

The Second Department determined Supreme Court properly dismissed without a hearing a non-parent’s petition seeking custody of a child. Although the child resided with the petitioner for a significant period of time, there was evidence the arrangement was temporary to allow father, who was working full-time, to attend law school at night:

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The Court of Appeals has created a “two-prong inquiry for determining whether a nonparent may obtain custody as against a parent” … . “First, the nonparent must prove the existence of extraordinary circumstances such as surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time” … . “If extraordinary circumstances are established such that the nonparent has standing to seek custody, the court must make an award of custody based on the best interest of the child” … .

“A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the papers submitted”… .

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… [T]he period of time when the child resided primarily with the petitioner and not the father largely coincided with the period of time when the father was working full time and attending law school at night. During that period of time, the father contributed financially to the child’s support. The petitioner and the father completed certain forms designating the petitioner as the child’s caregiver for stated purposes, yet these forms were for a limited duration, and some of the forms contained notations to the effect that the father was not giving up his custodial rights. Matter of Schmitt v Troche, 2017 NY Slip Op 07732, Second Dept 11-8-17

 

FAMILY LAW (ALTHOUGH CHILD RESIDED WITH NON-PARENT FOR A NUMBER OF YEARS, THE ARRANGEMENT WAS TEMPORARY TO ALLOW FATHER TO ATTEND LAW SCHOOL, NON-PARENT’S PETITION FOR CUSTODY PROPERLY DISMISSED WITHOUT A HEARING (SECOND DEPT))/CUSTODY (FAMILY LAW, NON-PARENT, ALTHOUGH CHILD RESIDED WITH NON-PARENT FOR A NUMBER OF YEARS, THE ARRANGEMENT WAS TEMPORARY TO ALLOW FATHER TO ATTEND LAW SCHOOL, NON-PARENT’S PETITION FOR CUSTODY PROPERLY DISMISSED WITHOUT A HEARING (SECOND DEPT))/STANDING (FAMILY LAW, NON-PARENT, ALTHOUGH CHILD RESIDED WITH NON-PARENT FOR A NUMBER OF YEARS, THE ARRANGEMENT WAS TEMPORARY TO ALLOW FATHER TO ATTEND LAW SCHOOL, NON-PARENT’S PETITION FOR CUSTODY PROPERLY DISMISSED WITHOUT A HEARING (SECOND DEPT))/NON-PARENT (FAMILY LAW, CUSTODY, STANDING,  ALTHOUGH CHILD RESIDED WITH NON-PARENT FOR A NUMBER OF YEARS, THE ARRANGEMENT WAS TEMPORARY TO ALLOW FATHER TO ATTEND LAW SCHOOL, NON-PARENT’S PETITION FOR CUSTODY PROPERLY DISMISSED WITHOUT A HEARING (SECOND DEPT))

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BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT).

The Third Department determined criminal contempt charges were not precluded by the double jeopardy rule. As part of a neglect proceeding defendant admitted violating orders of protection. Although a 60-day period of incarceration was part of the disposition, it was repeatedly delayed as the court monitored defendant’s compliance (and was never imposed). Because the incarceration was deemed to induce compliance with Family Court’s orders, it was remedial, not punitive in nature. Therefore a subsequent prosecution for criminal contempt, arising from the violations of the orders of protection, did not violate the double jeopardy prohibition:

 

The double jeopardy protections of the US and NY Constitutions “shield a defendant from multiple criminal punishments arising from the same offense” … . Whether double jeopardy bars a criminal prosecution subsequent to a finding of contempt or similar violation of a court order depends not on the labels used to describe the previously imposed sentence, but on “the character and purpose” of that sentence … . In a contempt matter, the sentence imposed for violation of a court order is remedial if it was intended “to coerce compliance” with a court order … . By contrast, when “a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended — by the contemnor’s compliance with the law [or a court order], then the contempt is not remedial but punitive” … . Double jeopardy precludes “a subsequent prosecution where a prior contempt sentence serves a punitive rather than remedial purpose” … . However, if the imposed sentence was remedial, double jeopardy does not apply … . People v Lamica, 2017 NY Slip Op 07646, Third Dept 11-2-17

 

FAMILY LAW (ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/CRIMINAL LAW (FAMILY LAW, ORDERS OF PROTECTION, CONTEMPT, DOUBLE JEOPARDY, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/CONTEMPT (FAMILY LAW, ORDERS OF PROTECTION, CONTEMPT, DOUBLE JEOPARDY, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/DOUBLE JEOPARDY (FAMILY LAW, ORDERS OF PROTECTION, CRIMINAL CONTEMPT, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))

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