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PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL.

The Second Department determined Family Court did not ensure that the party subject to an order of protection proceeding knowingly and intelligently waived his right to counsel:

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A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii]), but may waive that right provided that he or she does so knowingly, intelligently, and voluntarily … . In order to determine whether a party is validly waiving the right to counsel, the court must conduct a “searching inquiry” to ensure that the waiver is knowing, intelligent, and voluntary … . ” While there is no rigid formula to the court’s inquiry, there must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel'” … , and it is the “better practice” for the court to inquire about the litigant’s ” age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … .

Here, the record was inadequate to demonstrate that the appellant validly waived his right to counsel … . Accordingly, the order must be reversed, and the matter remitted to the Family Court, Kings County, for a new hearing at which the appellant shall either appear with counsel or knowingly, voluntarily, and intelligently waive his right to counsel, and a new determination on the petition thereafter. Matter of Dixon v Marshall, 2017 NY Slip Op 05085, 2nd Dept 6-21-17

 

FAMILY LAW (PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/ATTORNEYS (FAMILY LAW, ORDER OF PROTECTION, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/RIGHT TO COUNSEL (FAMILY LAW, ORDER OF PROTECTION, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/ORDER OF PROTECTION (FAMILY LAW, RIGHT TO COUNSEL, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)

MOTHER’S PETITION FOR A DOWNWARD MODIFICATION OF CHILD SUPPORT SHOULD NOT HAVE BEEN DISMISSED BASED ON MOTHER’S PARAMOUR’S REFUSAL TO PROVIDE FINANCIAL DISCLOSURE.

The Fourth Department, reversing (modifying) Family Court, determined mother’s petition for a downward modification of child support should not have been dismissed based on the refusal of mother’s paramour to provide financial disclosure:

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… [T]he Support Magistrate erred in dismissing the mother’s cross petition for a downward modification of child support. The sole justification for that dismissal was the mother’s failure to provide financial disclosure from her paramour, a nonparty, who had filed an affidavit stating that he refused to provide financial disclosure to the court. “While certain penalties or sanctions may be appropriate for the individual conduct of [the mother] . . . , it is apparent that the actions of a nonparty weighed heavily in the decision to invoke the ultimate penalty’ “… . Under the circumstances of this case, we conclude that the court erred in dismissing the cross petition based on a nonparty’s refusal to disclose financial information voluntarily … . We therefore modify the order … by granting the mother’s objection in part and reinstating the mother’s cross petition for a downward modification of child support, and we remit the matter to Family Court for a new hearing on the cross petition. Matter of Deshotel v Mandile, 2017 NY Slip Op 04972, 4th Dept 6-16-17

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FAMILY LAW (CHILD SUPPORT, MOTHER’S PETITION FOR A DOWNWARD MODIFICATION OF CHILD SUPPORT SHOULD NOT HAVE BEEN DISMISSED BASED ON MOTHER’S PARAMOUR’S REFUSAL TO PROVIDE FINANCIAL DISCLOSURE)/CHILD SUPPORT (FAMILY LAW,  MOTHER’S PETITION FOR A DOWNWARD MODIFICATION OF CHILD SUPPORT SHOULD NOT HAVE BEEN DISMISSED BASED ON MOTHER’S PARAMOUR’S REFUSAL TO PROVIDE FINANCIAL DISCLOSURE)

MOTHER’S REQUEST FOR A CONTINUANCE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING SHOULD HAVE BEEN GRANTED.

The Fourth Department determined Family Court abused its discretion when it refused mother’s stress-related request for a continuation in this termination of parental rights proceeding:

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We agree with the mother that the court abused its discretion in denying her counsel’s request for a continuance when, due to emotional distress, the mother was unable to appear in the afternoon on the final day of her hearing. The determination whether to grant a request for an adjournment for any purpose is a matter resting within the sound discretion of the trial court … . Under the circumstances presented here, including that the issue is the termination of parental rights, we conclude that it was an abuse of discretion to deny the mother’s request for a continuance. We therefore vacate the order and remit the matter to Family Court to allow the mother to present evidence at a reopened fact-finding hearing… . Matter of Destiny G. (Laricia H.), 2017 NY Slip Op 04965, 4th Dept 6-16-17

FAMILY LAW (MOTHER’S REQUEST FOR A CONTINUANCE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, MOTHER’S REQUEST FOR A CONTINUANCE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING SHOULD HAVE BEEN GRANTED)

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CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED.

The Third Department, reversing Family Court, determined the child’s testimony alleged sexual abuse by father was not corroborated:

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A child’s mere repetition of an accusation to others, “however consistent and believable, is not sufficient to corroborate [his or her] prior out-of-court statements”… . “The corroboration requirement is not demanding and may be satisfied by any other evidence tending to support the reliability of the child’s previous statements” … . Nevertheless, “there is a threshold of reliability that the evidence must meet”… . Here, relative to the allegations that the father had sexual contact with the daughter, that threshold was not met.

This Court has found corroboration of a child’s out-of-court statements pertaining to sexual abuse in such evidence as medical indications of abuse … , expert validation testimony … , cross-corroboration by another child’s similar statements … , marked changes in a child’s behavior … , and sexual behavior or knowledge beyond a child’s years … . No such evidence was presented here. Instead, the undisputed testimony of all of the witnesses described the daughter as a social, highly verbal child with no medical evidence of abuse, no significant behavioral alterations, and no indications of inappropriate sexual knowledge or behavior. Matter of Lee-Ann W. (James U.), 2017 NY Slip Op 04920, 3rd Dept 6-15-17

 

FAMILY LAW (EVIDENCE, SEXUAL ABUSE, CORROBORATION, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/SEXUAL ABUSE (FAMILY LAW, CORROBORATION OF CHILD’S TESTIMONY,  CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/EVIDENCE (FAMILY LAW, SEXUAL ABUSE, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/CORROBORATION (FAMILY LAW, SEXUAL ABUSE, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)

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FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED.

The Second Department determined Family Court did not make sure appellant under stood the consequences of proceeding without counsel in this order of protection matter:

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A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel… . A party, however, may waive that right, provided that he or she does so knowingly, voluntarily, and intelligently … . To ensure that a party’s waiver of the right to counsel is valid, the Family Court must conduct a “searching inquiry”… . There is no rigid formula, but the record must demonstrate that the party has chosen to proceed without counsel despite being aware of and understanding the dangers and disadvantages of doing so … .

Here, when the appellant expressed his desire to proceed without counsel, the Family Court tried to explain the dangers and disadvantages of doing so. The record shows, however, that the appellant was confused by the colloquy and did not comprehend the court’s explanation. The court nevertheless permitted him to proceed without counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal without regard to the merits of the unrepresented party’s position … . Matter of Gugliara v Gugliara, 2017 NY Slip Op 04840, 2nd Dept 6-14-17

 

FAMILY LAW (RIGHT TO COUNSEL, ORDER OF PROTECTION, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/ATTORNEYS (FAMILY LAW, RIGHT TO COUNSEL, ORDER OF PROTECTION,  FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/ORDER OF PROTECTION (FAMILY LAW, RIGHT TO COUNSEL, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/RIGHT TO COUNSEL (FAMILY LAW, ORDER OF PROTECTION, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)

FATHER’S MOTION TO VACATE THE DEFAULT JUDGMENT IN THIS CUSTODY MATTER SHOULD NOT HAVE BEEN DENIED, FATHER DEMONSTRATED HE WAS ILL AND, BECAUSE CUSTODY WAS AWARDED TO A NON-PARENT IN HIS ABSENCE BASED UPON UNPROVEN ALLEGATIONS, HE HAD A MERITORIOUS DEFENSE.

The Third Department determined Family Court should have granted father’s motion to vacate a default judgment in a custody matter. Custody was awarded to a non-parent (aunt) by stipulation at the proceeding father didn’t attend. Father let his attorney know he was ill and his attorney appeared. Father demonstrated he was ill and, because custody was awarded to a non-parent in his absence based on unproven allegations, he had a meritorious defense:

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With these concerns in mind, we turn to the determination of the father’s motion to vacate the default order. “[A] party who seeks to vacate a default [order] must demonstrate a reasonable excuse for his or her failure to appear and a meritorious defense” … . We find that the father met this burden. The father furnished an affidavit in which he explained that he has suffered from four heart attacks since 2009, with the latest episode requiring hospitalization only five months before the trial date. At the time of the scheduled trial, he was under the care of a cardiologist and was taking four prescribed medications for the condition. On the day prior to the trial, he was experiencing severe chest pains and dizziness. In accordance with his physicians’ advice, he took two doses of nitroglycerine and became disoriented so, that night, the father left a message with his attorney reporting that he would not be able to attend the trial. He averred in his affidavit that he was unable to attend the trial due to this heart condition. Corroborating these representations are copies of medical records from his earlier hospitalization, which confirmed that he suffered from congenital heart disease and underwent open heart surgery as an infant. The records included the diagnoses of cardiomyopathy, high blood pressure and angina, identification of his attending physicians, a listing of his prescribed medications and printouts of his electrocardiograms. We find that Family Court’s rejection of proof that “plausibly supports” the father’s contention that he was ill on the day of the trial was an abuse of discretion … .

Turning to the father’s proffer of a meritorious defense, we note that, “absent surrender, abandonment, persistent neglect, unfitness, disruption of custody over a prolonged period of time or the existence of other extraordinary circumstances,” a parent has a superior claim of custody of his or her children … , and, in a custody case, “[t]he nonparent bears the heavy burden of establishing extraordinary circumstances” … . Family Court accepted the unproven allegations of the petition and the stipulation by the aunt and the mother, none of which provided a factual basis for the custody determination. We also note that, in regard to the best interests of the child analysis, Family Court was not presented with evidence “to enable it to undertake a comprehensive independent review of the children’s best interests”… . Mindful that the ultimate issue in this case is the best interests of the children … , and that visitation with a noncustodial parent is presumed to be in their best interests … , we find that the father’s challenges to the amended petition constitute meritorious defenses. Accordingly, these findings lead us to conclude that Family Court improvidently exercised its discretion in denying the father’s motion to vacate the default order.  Matter of Hannah MM. v Elizabeth NN., 2017 NY Slip Op 04504, 3rd Dept 6-8-17

 

FAMILY LAW (CUSTODY, DEFAULT, FATHER’S MOTION TO VACATE THE DEFAULT JUDGMENT IN THIS CUSTODY MATTER SHOULD NOT HAVE BEEN DENIED, FATHER DEMONSTRATED HE WAS ILL AND, BECAUSE CUSTODY WAS AWARDED TO A NON-PARENT IN HIS ABSENCE BASED UPON UNPROVEN ALLEGATIONS, HE HAD A MERITORIOUS DEFENSE)/CUSTODY (FAMILY LAW, DEFAULT, FATHER’S MOTION TO VACATE THE DEFAULT JUDGMENT IN THIS CUSTODY MATTER SHOULD NOT HAVE BEEN DENIED, FATHER DEMONSTRATED HE WAS ILL AND, BECAUSE CUSTODY WAS AWARDED TO A NON-PARENT IN HIS ABSENCE BASED UPON UNPROVEN ALLEGATIONS, HE HAD A MERITORIOUS DEFENSE)

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A HEARING IS NECESSARY TO DETERMINE WHETHER A POSTNUPTIAL AGREEMENT IS UNCONSCIONABLE, CRITERIA EXPLAINED.

The Second Determined a hearing was necessary to determine whether a postnuptial agreement, which appeared to strip the wife of her assets, was unconscionable. The court explained the relevant law:

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Postnuptial agreements are contracts which require consideration … . Although postnuptial agreements are generally subject to ordinary principles of contract law … , the parties, as husband and wife, have a fiduciary relationship to each other … .To warrant equity’s intervention, no actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching … . A motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face… .

Here, it cannot be said that the agreement is fair on its face. It appears from the record that the defendant has received no benefit from the agreement. It also appears that she relinquished all assets of the marriage, along with her inheritance rights and right to spousal support. Where an agreement appears to be so one-sided and unfair that no rational person exercising common sense would make it, and no fair and honest person would accept it, there should be a hearing to determine whether the agreement is unconscionable in substance … . Further, the circumstances under which the agreement was executed must be examined … A reviewing court examining a challenge to a postnuptial agreement will view the agreement in its entirety and under the totality of the circumstances… . Without a hearing to determine the totality of the circumstances, including the extent of the parties’ assets, and the circumstances surrounding the execution of the agreement, it cannot be determined on this record whether equity should intervene to invalidate the parties’ agreement. Barclay v Barclay, 2017 NY Slip Op 04414, 2nd Dept 6-7-17

 

FAMILY LAW (POSTNUPTIAL AGREEMENT, A HEARING IS NECESSARY TO DETERMINE WHETHER A POSTNUPTIAL AGREEMENT IS UNCONSCIONABLE, CRITERIA EXPLAINED)/CONTRACT LAW (FAMILY LAW, POSTNUPTIAL AGREEMENT, A HEARING IS NECESSARY TO DETERMINE WHETHER A POSTNUPTIAL AGREEMENT IS UNCONSCIONABLE, CRITERIA EXPLAINED)/POSTNUPTIAL AGREEMENT (UNCONSCIONABLE, A HEARING IS NECESSARY TO DETERMINE WHETHER A POSTNUPTIAL AGREEMENT IS UNCONSCIONABLE, CRITERIA EXPLAINED)

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AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED.

The Second Department determined Family Court’s award of sole legal and physical custody to mother was not supported by the record. The court noted that the preference of the children was not adequately considered:

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“Since the Family Court’s custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record”… . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record”… .

In this case, the Family Court’s determination awarding the mother sole legal and physical custody of the children does not have a sound and substantial basis in the record. Specifically, the court’s finding that the mother was “better equipped to meet the physical, mental and emotional needs of the children” was not supported by the record. The record also fails to support the court’s determination that the father did not indicate a willingness to co-parent with the mother. In addition, while a child’s expressed preference in a custody proceeding is not determinative, it is some indication of what is in the child’s best interests, particularly where, as here, the court’s interview with the sons demonstrated their level of maturity and ability to articulate their preferences … . Here, although the children indicated a preference for living with the father, the court merely indicated that it understood their positions without explaining its reasons for rejecting them … . Matter of Tofalli v Sarrett, 2017 NY Slip Op 04125, 2nd Dept 5-25-17

 

FAMILY LAW (AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)/CUSTODY (FAMILY LAW, AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)/APPEALS (FAMILY LAW, AWARD OF SOLE CUSTODY TO MOTHER NOT SUPPORTED BY THE RECORD, PREFERENCE OF CHILDREN NOT ADEQUATELY CONSIDERED)

AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD.

The Third Department, reversing Family Court, determined: (1) the aunt did not have standing to seek visitation because there was a loving and responsible relationship between mother and child; and (2) awarding additional visitation to the grandparents was not supported by the record (no testimony taken from the grandparents):

Turning first to the merits of the aunt’s petition seeking visitation … , we find that Family Court erred in awarding visitation to the aunt inasmuch as the aunt does not have standing to seek such relief … . While the aunt and the attorney for the child contend that extraordinary circumstances exists to confer standing upon the aunt, such rule does not apply to this case … , especially where Family Court found that the mother was a “loving and responsible parent.” We further note that although the mother originally consented to the aunt having minimal visitation with the child, she later changed her position and orally moved to dismiss the aunt’s petition for visitation immediately prior to the commencement of trial … . Accordingly, Family Court erred in granting the aunt visitation with the child over the mother’s objections and the aunt’s petition should have been dismissed … . * * *

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… [W]e conclude that Family Court’s determination to award the grandparents increased visitation lacks a sound and substantial basis in the record. The increased visitation did not stem from the consideration of any documentary evidence or testimony but, instead, from Family Court’s own familiarity with the parties based upon prior petitions. Such information, however, is not part of the record … . Matter of Romasz v Coombs, 2017 NY Slip Op 04001, 3rd Dept 5-18-17

 

FAMILY LAW (AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD)/VISITATION (FAMILY LAW, AUNT DID NOT HAVE STANDING TO SEEK VISITATION, AWARDING ADDITIONAL VISITATION TO GRANDPARENTS NOT SUPPORTED BY THE RECORD)

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FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN.

The Second Department, reversing Family Court, determined, in the absence of a fact-finding proceeding, father should not have been deemed to have derivatively neglected his children based solely upon his guilty plea to endangering the welfare of one of his children:

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“A criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct” … . Family Court Act § 1012(f)(i) defines a neglected child as one “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care” … by, inter alia, “unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof.” Here, since the father’s conviction for endangering the welfare of a child was based upon the same acts alleged to constitute neglect, the father’s conviction established, prima facie, that Blima M. was a neglected child … . …

However, the Family Court erred in granting that branch of ACS’s [Administration for Children’s Services’] motion which was for summary judgment determining that the father derivatively neglected Hersh M., Jacob M., Aron M., Moshe M., and Dina M. While proof of the neglect of one child shall be admissible evidence on the issue of the neglect of any other child of, or the legal responsibility of, the respondent … , a finding of abuse or neglect as to one sibling does not mandate a finding of derivative abuse or neglect as to the other siblings … . Matter of Blima M. (Samuel M.), 2017 NY Slip Op 03954, 2nd Dept 5-17-17

 

FAMILY LAW (FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)/NEGLECT (FAMILY LAW, FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)/DERIVATIVE NEGLECT (FAMILY LAW, FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)/CRIMINAL LAW (ENDANGERING THE WELFARE OF A CHILD, FAMILY LAW, FATHER SHOULD NOT HAVE BEEN DEEMED TO HAVE DERIVATIVELY NEGLECTED ALL HIS CHILDREN BASED SOLELY ON HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF ONE OF HIS CHILDREN)

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