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EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT.

The Fourth Department determined father’s petition to modify custody should not have been denied without a hearing. The evidence that mother had been arrested for a drug offense, in addition to allegations of corporal punishment by mother’s boyfriend, were enough to warrant a hearing:

We  … agree with the father that he made a sufficient evidentiary showing of a change in circumstances to require a hearing with respect to certain remaining allegations in the amended petition. It was undisputed that the mother was facing prosecution for criminal possession of a controlled substance in Georgia. Although the mother submitted a negative drug test in support of her motion, the drug test was performed on a hair follicle sample that she submitted well after her arrest, and the assertions by the mother’s attorney regarding how far back such a test could detect drug use raises an issue to be resolved at an evidentiary hearing, not on a motion to dismiss. Considering the mother’s history of drug and alcohol addiction, as acknowledged by the parties in the parenting agreement, we conclude that the allegation that the mother was arrested and being prosecuted for criminal possession of a controlled substance is sufficient to warrant a hearing … , inasmuch as such conduct, including the mother’s possible unlawful use of a controlled substance, “is plainly relevant to her fitness as a parent” … . Matter of Farner v Farner, 2017 NY Slip Op 05545, 4th Dept 7-7-17

FAMILY LAW (CUSTODY, EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT)/CUSTODY (FAMILY LAW, EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT)

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PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Egan, determined that the Interstate Compact on the Placement of Children (ICPC) does not allow the placement of a child in another state absent that state’s permission, even when the placement is with a relative (custody, Family Ct Act article 6) and does not involve placement in foster care (neglect, Family Ct Act article 10). Here the grandmother, who lives in North Carolina, sought custody of the child with mother’s consent. The North Carolina authorities, however, determined placement with grandmother would not be appropriate because she was caring for three other children:

Here, DSS argues that the pending Family Ct Act article 10 proceeding against the child’s mother mandated that DSS, as the child’s custodian, comply with the ICPC in the first instance; therefore, the argument continues, absent approval from the appropriate authorities in North Carolina, Family Court was statutorily barred from placing the child with the grandmother in that state. The grandmother, on the other hand, contends the ICPC does not apply at all because custody of the subject child is being sought in the context of a Family Ct Act article 6 proceeding (rather than in conjunction with the related Family Ct Act article 10 neglect proceeding against the mother). Specifically, the grandmother argues that the statute — on its face — is limited to foster care situations or other similar instances in which the receiving state would bear some responsibility for providing aid or services to the subject child. Asserting that she is fully prepared to assume financial responsibility for the child, the grandmother contends that the statutory goals/concerns are not implicated and, therefore, notwithstanding the fact that North Carolina did not recommend the requested placement, the ICPC should not bar placement of the child with her.

The case law interpreting the ICPC is limited and is complicated by both the interplay between related and often (as is the case here) contemporaneous proceedings brought under Family Ct Act articles 6 and 10 … and the overarching desire to effectuate an appropriate placement for a child — particularly in those situations where the relevant statutory scheme may be more of an impediment than an aid in achieving a placement that is consistent with the child’s best interests. Here, although there is no question that the grandmother’s efforts to seek custody of the child were well-intentioned, the fact remains that, at the time that the grandmother’s custody petition was filed, DSS had custody of the child in the context of the then-pending Family Ct Act article 10 proceeding … . To that end, “[w]here the custody of a child who is under the supervision of [DSS] is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply” … — even where, as here, there is a pending Family Ct Act article 6 petition for custody … . Matter of Dawn N. v Schenectady County Dept. of Social Servs., 2017 NY Slip Op 05482, 3rd Dept 7-6-17

 

FAMILY LAW (PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) (PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/CUSTODY (FAMILY LAW, PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)/NEGLECT (FAMILY LAW, PURSUANT TO THE INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) A CHILD CAN NOT BE PLACED IN ANOTHER STATE ABSENT THAT STATE’S PERMISSION, EVEN IF PLACEMENT IS WITH A RELATIVE WITH PARENTAL CONSENT 3RD DEPT)

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HEARING NECESSARY ON MOTHER’S PETITION TO CHANGE THE SURNAME OF ONE OF THE CHILDREN, MATTER REMITTED.

The Fourth Department, reversing Supreme Court, determined a hearing should have been held on mother’s petition to change the surname of one of their children. The petition was opposed by father:

“Civil Rights Law § 63 authorizes an infant’s name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change” … . With respect to infants, the statute provides in relevant part, that, if the court is “satisfied . . . that the petition is true, . . . that there is no reasonable objection to the change of name proposed, and . . . that the interests of the infant will be substantially promoted by the change,” the court may grant the petition (§ 63). With respect to the interests of the infant, “the issue is not whether it is in the infant’s best interests to have the surname of the mother or father, but whether the interests of the infant will be promoted substantially by changing his [or her] surname” … . Such a determination “requires a court to consider the totality of the circumstances” … .

Contrary to petitioner’s contention, respondent raised reasonable objections to the petition … . Petitioner is seeking to change the sons’ names to a surname that is not used by either parent or the sons’ half-sibling … . While “neither parent has a superior right to determine the surname of the child,” we have stated that “a father has a recognized interest in having his child bear his surname” … . Respondent also contends that an order granting the petition will have a deleterious effect on his relationship with his sons … . Although petitioner contends that the sons desire the name change, that contention is based on hearsay, and respondent challenges that contention. Inasmuch as the court did not conduct an in camera interview with them, we cannot resolve that disputed issue on this record. In any event, the sons are now of sufficient age and maturity to express their preference for a particular surname, and they have a right to be heard … . Matter of Niethe (McCarthy–DePerno), 2017 NY Slip Op 05371, 4th Dept 6-30-17

 

THE RECORD DID NOT SUPPORT THE AWARD OF PRIMARY PHYSICAL CUSTODY TO MOTHER, FAMILY COURT REVERSED, ALTHOUGH THE CHILD WISHED TO STAY WITH MOTHER, THAT FACTOR WAS AFFORDED LITTLE WEIGHT DUE TO THE CHILD’S YOUNG AGE.

The Fourth Department, reversing Family Court, determined there was not a sound and substantial basis in the record for awarding primary physical custody to the mother. Although the child wished to stay with mother, the Fourth Department accorded that factor little weight because of the child’s young age and mother’s permissive parenting style:

It is well settled that, in determining the child’s best interests, a court should consider “(1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) [the] quality of the child’s home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the child’s emotional and intellectual development; (4) the financial status and ability of each parent to provide for the child; (5) the individual needs and expressed desires of the child; and (6) the need of the child to live with siblings” … . Additionally, a preexisting custody arrangement established by agreement is ” a weighty factor,’ ” but is not absolute … .

… With respect to the first factor, although the mother has been the child’s primary caretaker since birth, her living arrangements were unstable. The mother and the child had lived in seven different residences over the three years preceding the hearing, which resulted in the child changing schools every year. As the court recognized in its decision, the father is the more stable parent.

Concerning the quality of the home environment, the father and his wife own a home where the child has his own room, his own bed, and age-appropriate toys. In contrast, the mother’s chaotic living arrangements have put the child in regular contact with a half-sister who abuses drugs and have resulted in the child living in a home that was infested with fleas. Concerning the child’s emotional and intellectual development, the father ensures that the child attends school regularly and completes his homework. The record established that, since the father began playing a larger role in the child’s life, the child’s attendance and performance in school has improved dramatically. Also, the father facilitates the child’s participation in activities such as karate and swimming, encourages him to read for 20 minutes a day, and has adjusted his diet to address his medical needs. In contrast, the mother has shown a lack of concern for the child’s attendance and performance in school, shields him from experiences and foods that he finds unpleasant, and prefers that he play video games and eat fast food. Concerning the parents’ relative financial status, the father’s household income is significantly higher and his job is stable. In contrast, although the mother had difficulty affording her expenses and was evicted from prior residences, she continued to bounce from one part-time job to another and testified that she sees no need to work more than 28 hours a week. Matter of Braga v Bell, 2017 NY Slip Op 05348, 4th Dept 6-30-17

 

TERMINATION OF PARENTAL RIGHTS PROCEEDING REMITTED FOR AGE-APPROPRIATE CONSULTATION CONCERNING THREE OF THE CHILDREN TO DETERMINE THEIR WISHES.

The Third Department determined Family Court did not engage in an age-appropriate consultation concerning three of the children to determine their wishes in this “termination of parental rights” proceeding. The matter was remitted for that purpose:

Contrary to the argument by the attorney for the three younger children, the mere participation at the hearing and the giving of a closing statement, without more, by the attorney who represented Dawn, Summer and Samantha do not satisfy the age-appropriate consultation requirement of Family Ct Act § 1089 (d). The closing statement by the attorney for the three younger children was devoid of any statement indicating the preferences of Dawn, Summer or Samantha … .. Nor does the attorney for the three younger children point to any other evidence in the record that reflects their wishes. We are mindful that the court is ultimately guided by the best interests of the children … . The Legislature, however, has made it explicitly clear that a permanency hearing “shall” include an age-appropriate consultation … , carry significance and cannot be lightly overlooked. Given that the record does not disclose the wishes of Dawn, Summer or Samantha, the matter must be remitted so that Family Court may conduct the age-appropriate consultation under Family Ct Act § 1089 (d) with respect to these children. Matter of Dawn M. (Michael M.), 2017 NY Slip Op 05282, 3rd Dept 6-29-17

 

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FATHER TOLD THE COURT HE HAD RETAINED COUNSEL BUT COUNSEL COULD NOT ATTEND THE PETITION-TO-RELOCATE HEARING THAT DAY, COURT WENT AHEAD WITH THE HEARING, FATHER DEPRIVED OF HIS STATUTORY RIGHT TO COUNSEL.

The Second Department, reversing Family Court, determined father had been deprived of his right to counsel in mother’s relocation-petition proceeding. Father appeared for the hearing and told the court he had retained an attorney but the attorney could not attend that day. The court went ahead with the hearing:

After the court granted assigned counsel’s request to be relieved, it adjourned the hearing until June 24, 2016, so that the father could retain counsel. On June 24, 2016, the father told the court that he had retained an attorney but that the attorney could not be in court that day. The court, however, proceeded with the hearing after stating that it had no choice but to proceed.

We agree with the father’s contention that he was deprived of his statutory right to counsel … . Under the circumstances, instead of ordering the hearing to proceed, the Family Court should have granted an adjournment … . Accordingly, reversal is required, without regard to the merits of the father’s position, and we remit the matter … for a new hearing and new determination thereafter … . Matter of Charbonneau v Charbonneau, 2017 NY Slip Op 05221, 2nd Dept 6-28-17

 

SUPREME COURT IMPROPERLY AWARDED CUSTODY TO FATHER, RELIEF WHICH HAD NOT BEEN REQUESTED BY FATHER, WITHOUT A BEST INTERESTS HEARING, AFTER MOTHER ASKED TO APPEAR AT A HEARING BY TELEPHONE.

The Second Department, reversing Supreme Court, determined the award of custody to father, which father had not requested, when mother asked to appear at a hearing by telephone was improper. The hearing was to determine father’s allegation mother had violated the visitation provisions of the consent order awarding custody to her. The child had appealed. The best interests of the child are paramount and don’t appear to have been considered by the court:

The paramount concern in any custody or visitation determination is the best interests of the child … . “In order to modify a consent order granting sole custody to a parent, there must be a showing of a change [in] circumstances such that modification is required to protect the best interests of the child'” … . “Custody determinations should generally be made only after a full and plenary hearing and inquiry. This general rule furthers the substantial interest, shared by the State, the [child], and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interests of the child” … . Reversal or modification of an existing custody order “should not be a weapon wielded as a means of punishing a recalcitrant” or contemptuous parent … . Moreover, where no party has moved for a change in custody, a court may not modify an existing custody order in a non-emergency situation absent notice to the parties, and without affording the custodial parent an opportunity to present evidence and to call and cross-examine witnesses … .

Here, the Supreme Court improperly modified the consent order by changing custody from the mother to the father without the father having sought that relief in the petition, and without any apparent consideration of the child’s best interests … . The court’s award of custody to the father under the circumstances of this case also was improper in light of the father’s statements during the proceedings that he did not have a steady place to live with the child and that he did not wish to make an application for custody. Accordingly, we reverse the order and remit the matter to the Supreme Court … , for further proceedings on the father’s violation petition. We caution the Supreme Court to be mindful that determining the best interest of a child is a weighty responsibility, and that it ordinarily should not make such a determination without conducting an evidentiary hearing. Matter of Noel v Melle, 2017 NY Slip Op 05226, 2nd Dept 6-28-17

 

THE RECORD SUPPORTED A NEGLECT FINDING BASED UPON FATHER’S ABUSE OF MOTHER, FAMILY COURT REVERSED.

The Second Department, reversing Family Court, determined the record supported a neglect finding based upon domestic abuse witnessed or overheard by the children:

At the conclusion of the hearing, the Family Court credited the witnesses’ testimony, which the court found established that the father hit and choked the mother in the presence of two of the children, the eldest child was pushed by the father when he attempted to intervene, a third child was not in the room when the incident occurred but heard noise, and the three oldest children reported that they had witnessed the father engage in acts of domestic violence against their mother and had also witnessed the father under the influence of drugs. Nevertheless, the court dismissed the petitions on the ground that no physical impairment or risk of physical impairment of the children was established, nor was the mental state of the children explored. The petitioner appeals. * * *

Contrary to the Family Court’s conclusion, impairment or an imminent danger of impairment to the physical, mental, or emotional condition of the subject children could be inferred from the father’s conduct … . A single act of domestic violence in the presence of a child … , or within the hearing of a child … , may be sufficient for a neglect finding. In this case, there was evidence of repeated acts of domestic violence while the children were present in the household … , which the eldest child attributed to the father’s drug use. Furthermore, the father did not testify, warranting the “strongest negative inference” against him … .

Under these circumstances, the Family Court’s findings that the subject children were not neglected are not supported by the record. Accordingly, we reverse the order, reinstate the petitions, find that the children are neglected within the meaning of Family Court Act § 1012(f), and remit the matter to the Family Court, Kings County, for a dispositional hearing and determinations thereafter. Matter of Jihad H. (Fawaz H.), 2017 NY Slip Op 05224, 2nd Dept 6-28-17

 

MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD.

The First Department, in a full-fledged opinion by Justice Kapnick, concluded Family Court properly denied mother’s petition to relocate to Florida. Mother was not sure where she would live or work or how child care would be arranged. It did not appear father would be able to visit the child in Florida. The fact that father was behind in child support was not enough to show the relocation would be in the best interests of the child. Matter of Salena S. v Ahmad G., 2017 NY Slip Op 05172, 1st Dept 6-22-17

 

FAMILY LAW (MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD)/RELOCATION (FAMILY LAW, MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD)

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ATTORNEY’S FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY.

The Second Department noted that attorney’s fees greater that the amount awarded by the court cannot be sought unless the court awarded fees in an amount less than was demanded. The court further noted that a letter of engagement in a matrimonial matter is mandatory and quantum meruit relief is not available:

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An attorney is not precluded from seeking fees charged pursuant to a retainer agreement that are greater than the amount granted to the client by the court in the action where the circumstances warrant, such as where the fees awarded by the court are less than the amount demanded … . Here, the plaintiff obtained awards of the amounts demanded in both the Family Court and Supreme Court matters and, accordingly, was not entitled to additional fees.

With respect to the appellate work provided, there was no written retainer agreement, which is required by 22 NYCRR 1400.3, governing such work. While the existing retainer agreements were for “post judgment” matter, which could be understood as matter arising subsequent to the entry of the judgment of divorce, those agreements explicitly did not encompass appellate work. Therefore, the plaintiff was not entitled to payment for fees incurred for appellate work … .

Further, while in a nonmatrimonial matter the unintentional failure to provide a letter of engagement does not preclude an attorney from recovering the fair and reasonable value of his or her services pursuant to the doctrine of quantum meruit …,this case involves postjudgment relief in a matrimonial matter, for which a written retainer agreement is required … . In any event, the plaintiff did not assert a cause of action sounding in quantum meruit in the complaint, and there is no proof in this record of the fair and reasonable value of the plaintiff’s services on the appeal. No transcript of the trial has been provided, thus precluding review of that factual issue … . Hyman & Gilbert v Withers, 2017 NY Slip Op 05072, 2nd Dept 6-21-17

 

FAMILY LAW (ATTORNEY’S FEES, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/ATTORNEYS (FAMILY LAW, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/RETAINER AGREEMENTS (FAMILY LAW, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/LETTERS OF ENGAGEMENT (FAMILY LAW,  ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/QUANTUM MERUIT (FAMILY LAW, ATTORNEY’S FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)

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