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New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Kindle ebook editions and epub ebook editions in our website bookstore. The electronic edition is the perfect “assistant” to bring into the courtroom on your tablet or laptop for a contested matrimonial trial. It places the substantive law and the rules of evidence at your fingertips. You can quickly find what you need to know to lay a foundation for the introduction of evidence, and grounds for objecting to evidence offered by your adversary. Counsel never has to worry about what questions to ask a witness in a difficult situation. There are thousands of suggested questions for the examination of witnesses and cross-examination of expert witnesses dealing with very aspect of the matrimonial trial.

The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore, Amazon Kindle, Barnes & Noble and Goodreads.

The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents


Monday, September 17, 2018

Recent Decisions, Legislation and Trends since July 1, 2018


September 16, 2018


Recent Legislation


Laws of 2018, Chapter 218, Amended CPLR 2305
 
          Chapter 218 amended CPLR 2305, effective August 24, 2018 to add a new subdivision (d) which gives counsel the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. Existing subdivision 2 provides: “Any person may comply with a subpoena duces tecum for a trial, hearing or examination by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.”

    
          CPLR 2305(d) provides as follows:

(d) Subpoena duces tecum for a trial; service of subpoena and delivery for records.  Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith.

            The amendment was effective immediately and applies to all actions
   pending on or after such effective date.


Laws of 2018, Chapter 217 added CPLR 4540-a

   
            Chapter 217 added CPLR 4540-a effective January 1, 2019 to eliminate the authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure.

            According to the Legislative memorandum in support of the legislation the genuineness of a document or other physical object must be established as a prerequisite to its admissibility when the relevance of the item depends upon its source or origin. But evidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court's time and an unnecessary burden on the proponent of the evidence.


            New CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. The presumption recognized by the statute applies only to the issue of authenticity or genuineness of the item. A party is free to assert any and all other objections that might be pertinent in the case, such as lack of relevance or violation of the best evidence rule. The Legislative memorandum noted that the adoption of the proposed new CPLR 4540-a would not preclude establishing authenticity by any other statutory or common law means. See CPLR 4543 ("Nothing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the
rules of evidence at common law.").

            CPLR 4540-a, effective January 1, 2019 reads as follows:

 Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party.  Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an
adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.


Laws of 2018, Chapter 235 adds new privileged communications

            Chapter 235 amended judiciary law section 498, effective August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new subdivision 2 that deems communications between a consumer of legal services and a legal or lawyer referral service to be privileged, similar to the attorney-client privilege.
 
            Judiciary Law §498, new subdivision 2 reads as follows:

 2. The communications between a member or authorized agent of an association or society of attorneys or counselors at law and any person, persons or entity communicating with such member or authorized agent for the purpose of seeking or obtaining a professional referral shall be deemed to be privileged on the same basis as the privilege provided by law for communications between attorney and client. Such privilege may be waived only by the person, persons or entity who has furnished information to the association or society, its members or authorized agents.



Appellate Division, First Department


Adoption Subsidy Should Be Considered as A Resource of The Child When Determining Child Support

            In Barbara T v Acquinetta T, --- N.Y.S.3d ----, 2018 WL 3789133, 2018 N.Y. Slip Op. 05736 (1st Dept., 2018), a support proceeding, the Appellate Division held that Family Court erred in determining that the Children’s Law Center (CLC) which had been appointed as attorney for the child with no limitations on the scope of its representation did not have standing to file objections in Family Court. It rejected the argument that Family Court Act § 439(e) restricts the filing of objections to a “party or parties.” That section does not prohibit children’s attorneys, where appointed, from filing or rebutting objections to a Support Magistrate’s order. It found that the child’s attorney had standing to file objections to the Support Magistrate’s order. CLC also had standing to bring the appeal. The final order of a Support Magistrate is appealable after objections have been reviewed by a judge (FCA § 439[e]). In addition, the Court has discretion to entertain an appeal of any Family Court order other than an order of disposition (FCA § 1112).
           
            The child was born on December 21, 2000. In or about 2010, he was removed from his birth mother’s home and placed in non-kinship foster care with respondent Acquinetta M. (mother or Ms. M), who thereafter adopted him. When the adoption became final she began to receive a monthly adoption subsidy for him, which was administered by the Administration for Children’s Services (ACS). On December 2, 2015, the petitioner in the proceeding, the child’s godmother, Barbara T. (guardian or Ms. T), filed a petition for guardianship and in or about February 2016, the child began living with her full-time. Ms. M did not contest the petition, and it was granted on March 28, 2016. In March 2016, Ms. M advised ACS that the child was no longer living with her and that she wished to stop receiving the subsidy. Based solely on her request, ACS issued a notice to the mother stating that the subsidy had been “suspended” effective April 14, 2016 at her request. On March 31, 2016, the child’s guardian filed a petition seeking child support from Ms. M.

            The Appellate Division held, inter alia, that Family Court properly determined that an adoption subsidy should be considered as a resource of the child when determining child support. The Court observed that foster parents apply for the subsidy prior to adoption (18 NYCRR 421.24 [b], [c][1]), and sign a contract with ACS (18 NYCRR 421.24[c][3]). The minimum provisions of such contracts are set by regulation (18 NYCRR 421.24[c][3]). The applicable regulations further provide that the written agreement “will remain in effect until the child’s 21st birthday. No payments may be made if [ACS] determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents. Such written agreement must state that it will be the responsibility of the adoptive parent(s) to inform the appropriate State or local official when they are no longer legally responsible for the child or no longer providing any support to the child” (18 NYCRR 421.24[c][5]). Similarly, the Social Services Law provides that, once approved, subsidy payments “shall be made until the child’s twenty first birthday” (SSL § 453 [1][a] ) and that payment of the subsidy may only be suspended if ACS “determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents” (SSL § 453[1][c]; see also 42 USC § 673[a][4][A][ii], [iii] ). The Appellate Division held that Family Court erred in determining that receipt of the subsidy, once the contract is entered into, is at the adoptive parent’s election or that the subsidy terminates when the adoptive parent “opts” not to receive it.  The mother’s claim that she was no longer eligible to receive the subsidy once the child no longer resided with her was contrary to the applicable statutes and regulations and the required language of the adoption subsidy agreement.

            The Appellate Division held that although the statute does not presently permit anyone other than an adoptive parent to receive the subsidy on the child’s behalf, there is no statutory or regulatory requirement that the child continue to reside with the adoptive parent in order for the subsidy to continue. Accordingly, Family Court erred when it determined that it is “inappropriate, if not illegal, for a person to apply for and receive adoption subsidies for a minor who is not in said person’s care.” The subsidy may be considered in determining whether the non-custodial parent’s statutory child support obligation is “unjust or inappropriate” (FCA § 413 [1][f]). Adoptive parents, just like biological parents, remain legally responsible for the support of their children until they are 21 (FCA § 413[1][a]). The adoption subsidy (see 18 NYCRR 421.24) is not income that can be imputed to the adoptive parent (see A.E. v. J.I.E., 179 Misc. 2d 663, 686 N.Y.S.2d 613).

            However, Family Court erred in determining that a deviation based on the subsidy would be improper because it would “force” the mother to take steps to undo the subsidy’s suspension. Awarding child support in the amount of the subsidy is not unlike awarding support based on a parent’s historic earning potential, which similarly requires the parent to do what the court has determined he or she is capable of doing based on past performance. Family Court further erred in failing to properly consider the 10 factors set forth in FCA § 413(1)(f) to determine whether the mother’s basic child support obligation is unjust or inappropriate.” Considering these factors, it found that awarding child support in at least the amount of the subsidy for so long as the mother was eligible to receive it on the child’s behalf was an appropriate deviation from the basic child support obligation (see Smith, 75 A.D.3d 802, 903 N.Y.S.2d 758).  However, it was not clear from the record whether the mother may obtain the subsidy retroactive to the date on which it was suspended and remanded for further proceedings.


To Extent Defendant Promised Plaintiff, In Contemplation of Marriage, That She Would Raise Any Children They Had as Vegetarians, The Promise Is Not Binding

          In Kesavan v Kesavan, 162 A.D.3d 445, 78 N.Y.S.3d 345, 2018 N.Y. Slip Op. 04088 (1st Dept., 2018) in the parties parenting agreement, the parties agreed to jointly determine all major matters with respect to the child, including “religious choices.” The 24–page agreement did not otherwise mention the child’s religious upbringing and made no reference at all to dietary requirements. Although the parenting coordinator found that the child’s diet was a day-to-day choice within the discretion of each party, the trial court explicitly determined that the child’s diet was a religious choice, and dictated the child’s diet by effectively prohibiting the parties from feeding her meat, poultry or fish. The Appellate Division held that this was an abuse of discretion (see De Arakie v. De Arakie, 172 A.D.2d 398, 399, 568 N.Y.S.2d 778 [1st Dept. 1991]). To the extent defendant promised plaintiff, in contemplation of marriage, that she would raise any children they had as vegetarians, the promise is not binding (Stevenot v. Stevenot, 133 A.D.2d 820, 520 N.Y.S.2d 197 [2d Dept. 1987]), particularly in view of the parenting agreement, which omits any such understanding. Nor was there support in the record for a finding that a vegetarian diet is in the child’s best interests.



Appellate Division, Second Department


In proceeding pursuant to FCA § 661(a) there is no express statutory fingerprinting requirement, or express requirement to submit documentation to OCFS.

            In Matter of A v P , 161 A.D.3d 1068, 78 N.Y.S.3d 189, 2018 N.Y. Slip Op. 03674 (2d Dept., 2018)   the mother commenced a proceeding pursuant to Family Court Act article 6 to be appointed guardian of the child for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status ( SIJS) pursuant to 8 USC § 1101(a)(27)(J). The mother also moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Family Court denied the mother’s motion without a hearing and dismissed the guardianship petition for “failure to prosecute,” respectively.

            The Appellate Division reversed. It held that in a proceeding such as this pursuant to Family Court Act § 661(a) for “[g]uardianship of the person of a minor or infant,” there is no express statutory fingerprinting requirement, or any express requirement to submit documentation pertaining to the Office of Children and Family Services. Further, under the circumstances of this case, the court erred in dismissing the petition and denying the motion for “failure to prosecute” based upon the mother’s failure to submit documentation regarding, inter alia, the child’s enrollment in school. Since the Family Court dismissed the guardianship petition and denied the mother’s motion without conducting a hearing or considering the child’s best interests, it remitted the matter to the Family Court for a hearing and a new determination thereafter of the petition and the motion.



Second Department Holds that cases such as Matter of Angelo O., 41 A.D.3d 605, 836 N.Y.S.2d 421 should no longer be followed. Family Court’s Determinations Following A Permanency Hearing Must Be Made ‘In Accordance with The Best Interests and Safety of The Child

            In Matter of Victoria B, --- N.Y.S.3d ----, 2018 WL 3748220, 2018 N.Y. Slip Op. 05675 (2d Dept., 2018) after issuing the order of fact-finding of neglect and disposition, the Family Court held a permanency hearing. In a permanency hearing order dated August 30, 2017, the court changed the permanency goal from reunification to placement for adoption and continued the child’s placement in the custody of the Commissioner until the completion of the next permanency hearing or pending further order of the court. The order also directed the filing of a petition to terminate the father’s parental rights.

            The Appellate Division held that the father’s appeal was academic insofar as the permanency hearing order dated August 30, 2017, continued the child’s placement with the Commissioner. This portion of the order had already expired. However, it concluded that the portions of the August 30, 2017, permanency hearing order which changed the permanency goal from reunification to placement for adoption and directed the filing of a petition to terminate the father’s parental rights was not academic. It agreed with the First and Third Departments that since the permanency goal was changed so as to alter the objectives to be sought by the petitioner in the course of future permanency proceedings from working toward reunification to working toward permanent placement and termination of parental rights, any new orders would be the direct result of the order appealed from, and the issue of whether the order appealed from was proper will continue to affect the father’s rights (see Matter of Jacelyn TT. [Tonia TT. —Carlton TT.], 80 A.D.3d 1119, 1120, 915 N.Y.S.2d 732; see also Matter of Justyce HH. [Andrew II.] 136 A.D.3d 1181, 26 N.Y.S.3d 376; accord Matter of Alexander L. [Andrea L.], 109 A.D.3d 767, 972 N.Y.S.2d 229). To the extent that cases such as Matter of Angelo O., 41 A.D.3d 605, 836 N.Y.S.2d 421 are to the contrary, they should no longer be followed.

            In affirming the order upon its review, the Appellate Division observed that Article 10–A “establishes a system of ‘permanency hearings’ for children who have been removed from parental custody”. The hearings are “scheduled at six-month intervals” (see Family Ct Act § 1089[a][3]). “At the conclusion of each hearing, Family Court enters an order of disposition, schedules a subsequent hearing, and may also consider whether the permanency goal should be approved or modified”. Permissible permanency goals include returning the child to a parent or placing the child for adoption (Family Ct Act § 1089[d][2][i]). “At a permanency hearing, the petitioner bears the burden of establishing the appropriateness of a permanency goal, or a goal change, by a preponderance of the evidence” The Family Court’s determinations following a permanency hearing “must be made ‘in accordance with the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent’”



Appellate Division, Fourth Department


Family Court Does Not Have Authority to Compel Child to Participate in Permanency Hearing When Child Has Waived Right to Participate Following Consultation with Attorney

           In Matter of Shawn S, 163 A.D.3d 31, 77 N.Y.S.3d 824, 2018 N.Y. Slip Op. 042081(4th Dept., 2018), the Family Court, directed 14-year-old child to be present for any permanency hearing, despite the child’s waiver of right to participate in hearing. The Appellate Division reversed. It held that the Family Court does not have the authority to compel a child to participate in a permanency hearing when that child has waived his or her right to participate following consultation with his or her attorney (see Family Ct Act § 1090–a [a][2]). The question was one of statutory interpretation. Here, the statutory language was clear and unambiguous. Although the permanency hearing must include “an age appropriate consultation with the child” (Family Ct Act § 1090–a [a][1]), that requirement may not “be construed to compel a child who does not wish to participate in his or her permanency hearing to do so” (Family Court act§ 1090–a [g]). The choice belongs to the child.  “A child age fourteen and older shall be permitted to participate in person in all or any portion of his or her permanency hearing in which he or she chooses to participate” (§ 1090–a [b][1]). Moreover, “a child who has chosen to participate in his or her permanency hearing shall choose the manner in which he or she shall participate, which may include participation in person, by telephone or available electronic means, or the issuance of a written statement to the court” (§ 1090–a [c]). Although the court may limit the participation of a child under the age of 14 based on the best interests of the child (see § 1090–a [a][3]; [b][2] ), the court lacks the authority to compel the participation of a child who has waived his or her right to participate in a permanency hearing after consultation with his or her attorney (see § 1090–a [a][2]; [g] ).


September 1, 2018

Recent Legislation


Laws of 2018, Chapter 218, Amended CPLR 2305
 
          Chapter 218 amended CPLR 2305, effective August 24, 2018 to add a new subdivision (d) which gives counsel the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. Existing subdivision 2 provides: “Any person may comply with a subpoena duces tecum for a trial, hearing or examination by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.”

    
          CPLR 2305(d) provides as follows:

(d) Subpoena duces tecum for a trial; service of subpoena and delivery for records.  Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith.

            The amendment was effective immediately and applies to all actions
   pending on or after such effective date.


Laws of 2018, Chapter 217 added CPLR 4540-a

   
            Chapter 217 added CPLR 4540-a effective January 1, 2019 to eliminate the authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure.

            According to the Legislative memorandum in support of the legislation the genuineness of a document or other physical object must be established as a prerequisite to its admissibility when the relevance of the item depends upon its source or origin. But evidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court's time and an unnecessary burden on the proponent of the evidence.


            New CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. The presumption recognized by the statute applies only to the issue of authenticity or genuineness of the item. A party is free to assert any and all other objections that might be pertinent in the case, such as lack of relevance or violation of the best evidence rule. The Legislative memorandum noted that the adoption of the proposed new CPLR 4540-a would not preclude establishing authenticity by any other statutory or common law means. See CPLR 4543 ("Nothing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the
rules of evidence at common law.").

            CPLR 4540-a, effective January 1, 2019 reads as follows:

 Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party.  Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an
adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.


Laws of 2018, Chapter 235 adds new privileged communications

            Chapter 235 amended judiciary law section 498, effective August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new subdivision 2 that deems communications between a consumer of legal services and a legal or lawyer referral service to be privileged, similar to the attorney-client privilege.
 
            Judiciary Law §498, new subdivision 2 reads as follows:

 2. The communications between a member or authorized agent of an association or society of attorneys or counselors at law and any person, persons or entity communicating with such member or authorized agent for the purpose of seeking or obtaining a professional referral shall be deemed to be privileged on the same basis as the privilege provided by law for communications between attorney and client. Such privilege may be waived only by the person, persons or entity who has furnished information to the association or society, its members or authorized agents.



Appellate Division, First Department


Adoption Subsidy Should Be Considered as A Resource of The Child When Determining Child Support

            In Barbara T v Acquinetta T, --- N.Y.S.3d ----, 2018 WL 3789133, 2018 N.Y. Slip Op. 05736 (1st Dept., 2018), a support proceeding, the Appellate Division held that Family Court erred in determining that the Children’s Law Center (CLC) which had been appointed as attorney for the child with no limitations on the scope of its representation did not have standing to file objections in Family Court. It rejected the argument that Family Court Act § 439(e) restricts the filing of objections to a “party or parties.” That section does not prohibit children’s attorneys, where appointed, from filing or rebutting objections to a Support Magistrate’s order. It found that the child’s attorney had standing to file objections to the Support Magistrate’s order. CLC also had standing to bring the appeal. The final order of a Support Magistrate is appealable after objections have been reviewed by a judge (FCA § 439[e]). In addition, the Court has discretion to entertain an appeal of any Family Court order other than an order of disposition (FCA § 1112).
           
            The child was born on December 21, 2000. In or about 2010, he was removed from his birth mother’s home and placed in non-kinship foster care with respondent Acquinetta M. (mother or Ms. M), who thereafter adopted him. When the adoption became final she began to receive a monthly adoption subsidy for him, which was administered by the Administration for Children’s Services (ACS). On December 2, 2015, the petitioner in the proceeding, the child’s godmother, Barbara T. (guardian or Ms. T), filed a petition for guardianship and in or about February 2016, the child began living with her full-time. Ms. M did not contest the petition, and it was granted on March 28, 2016. In March 2016, Ms. M advised ACS that the child was no longer living with her and that she wished to stop receiving the subsidy. Based solely on her request, ACS issued a notice to the mother stating that the subsidy had been “suspended” effective April 14, 2016 at her request. On March 31, 2016, the child’s guardian filed a petition seeking child support from Ms. M.

            The Appellate Division held, inter alia, that Family Court properly determined that an adoption subsidy should be considered as a resource of the child when determining child support. The Court observed that foster parents apply for the subsidy prior to adoption (18 NYCRR 421.24 [b], [c][1]), and sign a contract with ACS (18 NYCRR 421.24[c][3]). The minimum provisions of such contracts are set by regulation (18 NYCRR 421.24[c][3]). The applicable regulations further provide that the written agreement “will remain in effect until the child’s 21st birthday. No payments may be made if [ACS] determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents. Such written agreement must state that it will be the responsibility of the adoptive parent(s) to inform the appropriate State or local official when they are no longer legally responsible for the child or no longer providing any support to the child” (18 NYCRR 421.24[c][5]). Similarly, the Social Services Law provides that, once approved, subsidy payments “shall be made until the child’s twenty first birthday” (SSL § 453 [1][a] ) and that payment of the subsidy may only be suspended if ACS “determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents” (SSL § 453[1][c]; see also 42 USC § 673[a][4][A][ii], [iii] ). The Appellate Division held that Family Court erred in determining that receipt of the subsidy, once the contract is entered into, is at the adoptive parent’s election or that the subsidy terminates when the adoptive parent “opts” not to receive it.  The mother’s claim that she was no longer eligible to receive the subsidy once the child no longer resided with her was contrary to the applicable statutes and regulations and the required language of the adoption subsidy agreement.

            The Appellate Division held that although the statute does not presently permit anyone other than an adoptive parent to receive the subsidy on the child’s behalf, there is no statutory or regulatory requirement that the child continue to reside with the adoptive parent in order for the subsidy to continue. Accordingly, Family Court erred when it determined that it is “inappropriate, if not illegal, for a person to apply for and receive adoption subsidies for a minor who is not in said person’s care.” The subsidy may be considered in determining whether the non-custodial parent’s statutory child support obligation is “unjust or inappropriate” (FCA § 413 [1][f]). Adoptive parents, just like biological parents, remain legally responsible for the support of their children until they are 21 (FCA § 413[1][a]). The adoption subsidy (see 18 NYCRR 421.24) is not income that can be imputed to the adoptive parent (see A.E. v. J.I.E., 179 Misc. 2d 663, 686 N.Y.S.2d 613).

            However, Family Court erred in determining that a deviation based on the subsidy would be improper because it would “force” the mother to take steps to undo the subsidy’s suspension. Awarding child support in the amount of the subsidy is not unlike awarding support based on a parent’s historic earning potential, which similarly requires the parent to do what the court has determined he or she is capable of doing based on past performance. Family Court further erred in failing to properly consider the 10 factors set forth in FCA § 413(1)(f) to determine whether the mother’s basic child support obligation is unjust or inappropriate.” Considering these factors, it found that awarding child support in at least the amount of the subsidy for so long as the mother was eligible to receive it on the child’s behalf was an appropriate deviation from the basic child support obligation (see Smith, 75 A.D.3d 802, 903 N.Y.S.2d 758).  However, it was not clear from the record whether the mother may obtain the subsidy retroactive to the date on which it was suspended and remanded for further proceedings.


To Extent Defendant Promised Plaintiff, In Contemplation of Marriage, That She Would Raise Any Children They Had as Vegetarians, The Promise Is Not Binding

            In Kesavan v Kesavan, 162 A.D.3d 445, 78 N.Y.S.3d 345, 2018 N.Y. Slip Op. 04088 (1st Dept., 2018) in the parties parenting agreement, the parties agreed to jointly determine all major matters with respect to the child, including “religious choices.” The 24–page agreement did not otherwise mention the child’s religious upbringing and made no reference at all to dietary requirements. Although the parenting coordinator found that the child’s diet was a day-to-day choice within the discretion of each party, the trial court explicitly determined that the child’s diet was a religious choice, and dictated the child’s diet by effectively prohibiting the parties from feeding her meat, poultry or fish. The Appellate Division held that this was an abuse of discretion (see De Arakie v. De Arakie, 172 A.D.2d 398, 399, 568 N.Y.S.2d 778 [1st Dept. 1991]). To the extent defendant promised plaintiff, in contemplation of marriage, that she would raise any children they had as vegetarians, the promise is not binding (Stevenot v. Stevenot, 133 A.D.2d 820, 520 N.Y.S.2d 197 [2d Dept. 1987]), particularly in view of the parenting agreement, which omits any such understanding. Nor was there support in the record for a finding that a vegetarian diet is in the child’s best interests.



Appellate Division, Second Department


In proceeding pursuant to FCA § 661(a) there is no express statutory fingerprinting requirement, or express requirement to submit documentation to OCFS.

            In Matter of A v P , 161 A.D.3d 1068, 78 N.Y.S.3d 189, 2018 N.Y. Slip Op. 03674 (2d Dept., 2018)   the mother commenced a proceeding pursuant to Family Court Act article 6 to be appointed guardian of the child for the purpose of obtaining an order declaring that the child is dependent on the Family Court and making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status ( SIJS) pursuant to 8 USC § 1101(a)(27)(J). The mother also moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Family Court denied the mother’s motion without a hearing and dismissed the guardianship petition for “failure to prosecute,” respectively.

            The Appellate Division reversed. It held that in a proceeding such as this pursuant to Family Court Act § 661(a) for “[g]uardianship of the person of a minor or infant,” there is no express statutory fingerprinting requirement, or any express requirement to submit documentation pertaining to the Office of Children and Family Services. Further, under the circumstances of this case, the court erred in dismissing the petition and denying the motion for “failure to prosecute” based upon the mother’s failure to submit documentation regarding, inter alia, the child’s enrollment in school. Since the Family Court dismissed the guardianship petition and denied the mother’s motion without conducting a hearing or considering the child’s best interests, it remitted the matter to the Family Court for a hearing and a new determination thereafter of the petition and the motion.



Second Department Holds that cases such as Matter of Angelo O., 41 A.D.3d 605, 836 N.Y.S.2d 421 should no longer be followed. Family Court’s Determinations Following A Permanency Hearing Must Be Made ‘In Accordance with The Best Interests and Safety of The Child

            In Matter of Victoria B, --- N.Y.S.3d ----, 2018 WL 3748220, 2018 N.Y. Slip Op. 05675 (2d Dept., 2018) after issuing the order of fact-finding of neglect and disposition, the Family Court held a permanency hearing. In a permanency hearing order dated August 30, 2017, the court changed the permanency goal from reunification to placement for adoption and continued the child’s placement in the custody of the Commissioner until the completion of the next permanency hearing or pending further order of the court. The order also directed the filing of a petition to terminate the father’s parental rights.

            The Appellate Division held that the father’s appeal was academic insofar as the permanency hearing order dated August 30, 2017, continued the child’s placement with the Commissioner. This portion of the order had already expired. However, it concluded that the portions of the August 30, 2017, permanency hearing order which changed the permanency goal from reunification to placement for adoption and directed the filing of a petition to terminate the father’s parental rights was not academic. It agreed with the First and Third Departments that since the permanency goal was changed so as to alter the objectives to be sought by the petitioner in the course of future permanency proceedings from working toward reunification to working toward permanent placement and termination of parental rights, any new orders would be the direct result of the order appealed from, and the issue of whether the order appealed from was proper will continue to affect the father’s rights (see Matter of Jacelyn TT. [Tonia TT. —Carlton TT.], 80 A.D.3d 1119, 1120, 915 N.Y.S.2d 732; see also Matter of Justyce HH. [Andrew II.] 136 A.D.3d 1181, 26 N.Y.S.3d 376; accord Matter of Alexander L. [Andrea L.], 109 A.D.3d 767, 972 N.Y.S.2d 229). To the extent that cases such as Matter of Angelo O., 41 A.D.3d 605, 836 N.Y.S.2d 421 are to the contrary, they should no longer be followed.

            In affirming the order upon its review, the Appellate Division observed that Article 10–A “establishes a system of ‘permanency hearings’ for children who have been removed from parental custody”. The hearings are “scheduled at six-month intervals” (see Family Ct Act § 1089[a][3]). “At the conclusion of each hearing, Family Court enters an order of disposition, schedules a subsequent hearing, and may also consider whether the permanency goal should be approved or modified”. Permissible permanency goals include returning the child to a parent or placing the child for adoption (Family Ct Act § 1089[d][2][i]). “At a permanency hearing, the petitioner bears the burden of establishing the appropriateness of a permanency goal, or a goal change, by a preponderance of the evidence” The Family Court’s determinations following a permanency hearing “must be made ‘in accordance with the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent’”



Appellate Division, Fourth Department


Family Court Does Not Have Authority to Compel Child to Participate in Permanency Hearing When Child Has Waived Right to Participate Following Consultation with Attorney

           In Matter of Shawn S, 163 A.D.3d 31, 77 N.Y.S.3d 824, 2018 N.Y. Slip Op. 042081(4th Dept., 2018), the Family Court, directed 14-year-old child to be present for any permanency hearing, despite the child’s waiver of right to participate in hearing. The Appellate Division reversed. It held that the Family Court does not have the authority to compel a child to participate in a permanency hearing when that child has waived his or her right to participate following consultation with his or her attorney (see Family Ct Act § 1090–a [a][2]). The question was one of statutory interpretation. Here, the statutory language was clear and unambiguous. Although the permanency hearing must include “an age appropriate consultation with the child” (Family Ct Act § 1090–a [a][1]), that requirement may not “be construed to compel a child who does not wish to participate in his or her permanency hearing to do so” (Family Court act§ 1090–a [g]). The choice belongs to the child.  “A child age fourteen and older shall be permitted to participate in person in all or any portion of his or her permanency hearing in which he or she chooses to participate” (§ 1090–a [b][1]). Moreover, “a child who has chosen to participate in his or her permanency hearing shall choose the manner in which he or she shall participate, which may include participation in person, by telephone or available electronic means, or the issuance of a written statement to the court” (§ 1090–a [c]). Although the court may limit the participation of a child under the age of 14 based on the best interests of the child (see § 1090–a [a][3]; [b][2] ), the court lacks the authority to compel the participation of a child who has waived his or her right to participate in a permanency hearing after consultation with his or her attorney (see § 1090–a [a][2]; [g] ).





August 16, 2018

Appellate Division, Second Department


Second Department Holds That Request at Trial for Judgment for Arrears of Temporary Maintenance Must Be Made on Notice


In Cravo v Diegel, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3559159, 2018 N.Y. Slip Op. 05447 (2d Dept., 2018) in affirming the judgment of divorce, the Appellate Division held, inter alia, that Supreme Court did not improvidently exercise its discretion in failing to the husband him maintenance arrears accruing under a pendente lite order dated December 29, 2014, because he failed to make an application for such an award. A party to a matrimonial action may make an application for a judgment directing payment of maintenance arrears at any time prior to or subsequent to the entry of a judgment of divorce (see Domestic Relations Law ' 244). However, an application for a judgment directing payment of maintenance arrears must be made Aupon such notice to the spouse or other person as the court may direct@ (Domestic Relations Law ' 244). Here, the defendant made no such application (see Domestic Relations Law ' 244; Matter of Fixman v. Fixman, 31 A.D.3d 637, 637B638, 819 N.Y.S.2d 770).


Appellate Division, Fourth Department


Fourth Department Holds That Comity Requires Recognition of Property Rights Arising from Civil Union in Vermont

       In O=Reilly- Morshead v O=Reilly-Morshead, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3567116, 2018 N.Y. Slip Op. 05419 (4th Dept., 2018) Plaintiff and defendant were residents of New York who, on June 9, 2003, traveled to Vermont and entered into a civil union under the laws of that state. On June 9, 2006, they were married in Canada. In 2014, plaintiff commenced this action seeking dissolution of the marriage and defendant counterclaimed for, inter alia, dissolution of the civil union and the equitable distribution of property acquired during the civil union. The Appellate Division held that Supreme Court properly declined to treat the civil union as equivalent to a marriage for the purposes of the equitable distribution of property under the Domestic Relations Law. It observed that when the New York State Legislature enacted the Marriage Equality Act, it granted same‑sex couples the right to marry, but it did not grant those couples who had entered into civil unions the same rights as those who marry. The Domestic Relations Law provides that A[a] marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex@ (DRL' 10Ba [1]). While the word Amarriage@ is not defined in the Domestic Relations Law, the disposition of property in a matrimonial action is dependent on whether that property is A[m]arital property@ (DRL' 236[B][5][c]). The Domestic Relations Law defines A >marital property= @ as property acquired Aduring the marriage@ (DRL' 236[B][1][c]) and, as relevant here, Aseparate property@ is defined as Aproperty acquired before marriage@ (' 236[B][1][d][1]). The parties were married on June 9, 2006, and thus the property at issue was acquired prior to the parties= marriage.

However, the Appellate Division concluded that the court erred in denying defendant=s request to apply principles of comity to the civil union and recognize that both parties have rights with respect to property acquired during the civil union. In Debra H. v. Janice R., 14 N.Y.3d 576, 904 N.Y.S.2d 263, 930 N.E.2d 184 (2010) the Court of Appeals left open the question whether New York should extend comity to the civil union for purposes other than parentage. The Appellate Division concluded that comity does require the recognition of property rights arising from a civil union in Vermont. One of the consequences of the parties= civil union in Vermont was that they would receive Aall the same benefits, protections, and responsibilities under law ... as are granted to spouses in a civil marriage@ (Vt. Stat. Ann, tit. 15, ' 1204[a]), including rights with respect to Adivorce ... and property division@ (' 1204 [d]; see DeLeonardis v. Page, 188 Vt. 94, 101, 998 A.2d 1072, 1076 [2010]). That rule is consistent with the public policy of New York, inasmuch as the laws of Vermont and New York both Apredicate [] [property rights] on the objective evidence of a formal legal relationship,@ i.e., legal union between the parties. In other words, under the laws of both Vermont and New York, property acquired during a legal union of two people‑in Vermont a civil union or marriage, and in New York, a marriage‑is subject to equitable distribution under the governing statutes of the state. The relevant New York and Vermont statutes both provide similar factors for the court to consider when determining the equitable distribution of the property. It concluded that, under the principles of comity, the property acquired during the civil union and prior to the marriage is subject to equitable distribution, and such property will therefore be equitably distributed after trial, along with the property acquired during the marriage.


Terms of agreement are to be interpreted consistently corresponding statutory scheme

In Burns v Burns, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3569023, 2018 N.Y. Slip Op. 05411
(4th Dept., 2018) the parties settlement agreement pursuant to Domestic Relations Law ' 236(B)(3) which was incorporated into their judgment of divorce provided that  A[a]ll matters affecting interpretation of this [a]greement and the rights of the parties [t]hereto shall be governed by the laws of the State of New York.@ The agreement obligated the husband to pay Arehabilitative maintenance@ to the wife pursuant to a schedule, until November 30, 2010 but was silent  regarding the effect, if any, of the wife=s remarriage upon the husband=s maintenance obligation. The wife remarried in December 2015. In April 2016, the husband emailed the wife to inform her that he would stop paying maintenance as a result of her remarriage.  The wife then moved to, inter alia, recover a monetary judgment for the amount outstanding and hold the husband in contempt for ending the maintenance payments. The Appellate Division rejected the wiles= argument that  Aa plain reading of ... the agreement [] leads to only one conclusion: [the husband=s] rehabilitative maintenance obligation survives [her] remarriage.@because A[o]ther than November 30, 2020, no termination events are identified in the agreement.           

The Appellate Division held that when parties enter into an agreement authorized by or related to a particular statutory scheme, the courts will presumeCabsent something to the contraryCthat the terms of the agreement are to be interpreted consistently with the corresponding statutory scheme (Dolman v. United States Trust Co. of N.Y., 2 N.Y.2d 110, 116, 157 N.Y.S.2d 537, 138 N.E.2d 784 [1956]). The statutory scheme corresponding to the agreement in this case is Domestic Relations Law ' 236, which includes the following caveat: any maintenance award Ashall terminate upon the death of either party or upon the payee=s valid or invalid marriage@. As thus defined, the concept of maintenance is unequivocally limited to payments made to an unmarried ex‑spouse. And unless the parties contract otherwise, the statutory limitation is incorporated directly into a divorce settlement agreement Aas though it were expressed or referred to therein@. It rejected the wife=s argument that the statutory definition of maintenance embodied in Domestic Relations Law ' 236(B)(1)(a) is irrelevant simply because the parties chose to settle the terms of their divorce in a written agreement.  The concept of Amaintenance,@, is explicitly limited by statute to payments made to an unmarried payee.



August 1, 2018

Appellate Division, Second Department

Party Moving for Attorney=s Fees Must Make Prima Facie Showing of Substantial Compliance With 22 NYCRR 1400.2 And 1400.3

In Matter of Tarpey v Tarpey, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3371501, 2018 N.Y. Slip Op. 05178 (2d Dept., 2018) the Appellate Division reversed an order which granted the mother=s petition for an upward modification of child support and attorneys fees. It pointed out that an attorney may recover fees from a client or the client=s spouse only if the attorney has substantially complied with 22 NYCRR 1400.2 and 1400.3, which, inter alia, require counsel to provide the client with Awritten, itemized bills at least every 60 days@ (Gahagan v. Gahagan, 51 A.D.3d 863, 864, 859 N.Y.S.2d 218). The party moving for attorney=s fees must make a prima facie showing of substantial compliance with 22 NYCRR 1400.2 and 1400.3 (see Gottlieb v. Gottlieb, 101 A.D.3d 678, 679, 957 N.Y.S.2d 132). It held that the Support Magistrate erred in awarding the mother attorney=s fees, as the mother did not demonstrate, prima facie, substantial compliance with 22 NYCRR 1400.2 or 1400.3. The mother failed to submit appropriate evidence in support of her application for attorney=s fees
Recording Call Placed on Speaker at Request of Party to Conversation Is Not Eavesdropping 

            In Perlman v Perlman, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3371321, 2018 N.Y. Slip Op. 05212 (2d Dept., 2018) the Appellate Division, inter alai, affirmed an order denying defendant=s motion to preclude the plaintiff from offering a tape recording of a telephone call into evidence at trial. Generally, A[t]he contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury@ (CPLR 4506[1]). AA person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication@ (Penal Law ' 250.05).  It found that the plaintiff=s actions in recording a telephone call, which apparently took place between the defendant and the children after the defendant requested that the children place the call on speaker so that the plaintiff could hear what he had to say, did not constitute the crime of eavesdropping. The plaintiff=s actions did not amount to Amechanical overhearing of a conversation [,]@ as she was present at, and a party to, the conversation at issue (Penal Law ' 250.00[2]; cf. People v. Badalamenti, 27 N.Y.3d 423, 432, 34 N.Y.S.3d 360, 54 N.E.3d 32). Thus, the recordings of that conversation were admissible pursuant to CPLR 4506(1) (see CPLR 4506[1]; Penal Law '' 250.05, 250.00[1], [2]).



Provision of Postnuptial Agreement Waiving Right to Seek Attorney=s Fee Held Unenforceable

            In Maddaloni v Maddaloni, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3450169, 2018 N.Y. Slip Op. 05295 (2d Dept., 2018) the Appellate Division affirmed an order which, among other things, granted the plaintiffs motion for post judgment and interim appellate counsel fees. The parties= 1988 postnuptial agreement provided that in the event that either of the parties was unable or unwilling to continue the marriage arrangement, neither of the parties would be entitled to counsel fees. It observed that  A[t]he determination as to whether or not a provision waiving the right to seek an award of an attorney=s fee is enforceable must be made on a case‑by‑case basis after weighing the competing public policy interests in light of all relevant facts and circumstances both at the time the agreement was entered and at the time it is to be enforced@ (Kessler v. Kessler, 33 A.D.3d 42, 48, 818 N.Y.S.2d 571; see Abramson v. Gavares, 109 A.D.3d 849, 851, 971 N.Y.S.2d 538).  Here, based on the disparity between the financial positions of the parties, and all of the circumstances of this matter, the provision of the parties= postnuptial agreement waiving the right to seek an award of an attorney=s fee was unenforceable.


Appellate Division, Third Department


Net Loss on Rental Property Excluded from Income for Child Support Calculation


In DeSouza v DeSouza, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3383635, 2018 N.Y. Slip Op. 05237 (3d Dept., 2018) the Appellate Division held that where a net loss is sustained on rental property for a given year, such rental income is properly excluded from the calculation of the parties= total gross income for child support purposes (see Domestic Relations Law ' 240[1Bb] [b][5][ii]).


July 16, 2018

Rules of Professional Conduct amended effective June 1. 2018

The Judicial Departments of the Appellate Division of the New York Slate Supreme Court, amended Title 22 of the Official Compilation of Code, Rules, and Regulations of the State of New York Part 1200 (Rules of Professional Conduct, Rule 8.4[g) and Part 1210 (Statement of Client's Rights) to prohibit discrimination in the practice of law on the basis. of, gender identity. or gender expression, as follows:

Part 1200. Attorney Rules of Professional Conduct
•••
Rule 8.4. Misconduct
A lawyer or law firm shall not:
•••
(g) unlawfully discriminate in the practice of law, including in hiring, promoting or otherwise determining conditions of employment on the basis. of age, race, creed, color, national origin, sex, disability, marital status, sexual orientation, gender identity. or gender
expression. Where there is a tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a complaint based on unlawful discrimination shall be brought before such tribunal in the first instance. A certified copy of a determination by such a tribunal, which has become final and enforceable and as to which the right to judicial or appellate review has been exhausted, finding that the lawyer has engaged in an unlawful discriminatory practice shall constitute prima facie evidence of professional misconduct in a disciplinary proceeding.


Part 1210. Statement of Client’s Rights
§ 1210.1. Posting

Every attorney with an office located in! he State of New York shall insure that there is posted in that office, in a manner visible to clients of the attorney, a statement of client's rights in the form set forth below. Attorneys in offices that provide legal services without fee may delete from the statement those provisions dealing with fees. The statement
shall contain the following:

STATEMENT Of CLIENT' S RIGHTS •••

10. You may not be refused representation on the basis of race. creed. color. religion, sex, sexual orientation, gender identity, gender expression, age, national origin, or disability.


Statewide Practice Rules of the Appellate Division Amended and Local Rules Adopted

           
            22 NYCRR Part 1250, Statewide Practice Rules of the Appellate Division  were adopted by the four Judicial Departments of the Appellate Division on December 12, 2017 and revised by joint order on June 29, 2018, to take effect on September 17, 2018See: Joint Order of the Departments of the New York State Supreme Court, Appellate Division

            22 NYCRR Part 1250 applies to all matters that are commenced in the Appellate Division, or in which a notice of appeal to the Appellate Division is filed, on or after September 17, 2018. Unless otherwise ordered by the Court upon a showing that application of part 1250 to the matter would result in substantial prejudice to a party or would be manifestly unjust or impracticable under the circumstances, part 1250 applies to each matter pending in the Appellate Division on September 17, 2018.
Due to the differences inherent in practice among the four departments of the Appellate Division, each department has also adopted a set of local rules.

The Appellate Divison, First Judicial Department rescinded 22 NYCRR Part 600 and adopted a new 22 NYCRR Part 600 to supplement the statewide Practice Rules of the Appellate Division, effective on September 17, 2018.
The Appellate Division, Second Judicial Department rescinded 22 NYCRR Part 670 and adopted a new 22 NYCRR Part 670, effective September 17, 2018.
        The Appellate Division, Third Department rescinded 22 NYCRR Part 850 and adopted a new 22 NYCRR Part 850 effective September 17, 2018.
            The Appellate Division, Fourth Department repealed in its entirety 22 NYCRR Part 1000, governing practice before the Court and enacted a new 22 NYCRR Part 1000, effective September 17, 2018.
Appellate Division, Second Department
Mother Did Not Consent to Reference Merely by Participating in The Proceeding Without Requesting Judge to Hear Case

In Matter of Rose v Simon, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3131427, 2018 N.Y. Slip Op. 04736 (2d Dept.., 2018) the father filed a petition for sole physical custody of the child. During the pendency of the custody proceeding, the mother filed a family offense petition against the father. The matters were heard before a Court Attorney Referee, who, after a consolidated hearing, granted the father=s petition and dismissed the mother=s family offense petition. The Appellate Division observed that a referee derives authority from an order of reference by the court (see CPLR 4311, 4317). The order of reference did not authorize the Court Attorney Referee to hear and report or to hear and determine a contested family offense petition. The Court Attorney Referee therefore lacked jurisdiction to dismiss the mother=s family offense petition.

With respect to the determination of custody, the order of reference recited that, upon the parties= stipulation, a court attorney referee is authorized to hear and determine the parties= rights to custody of and visitation with the child, including the determination of motions and temporary orders of custody. A review of the record revealed that the parties had not stipulated to the reference in the manner prescribed by CPLR 2104, and, absent such stipulation, the Court Attorney Referee had the power only to hear and report her findings. It further found that the mother did not consent to the reference merely by participating in the proceeding without expressing her desire to have the matter tried before a judge. The order of reference was therefore deemed an order to hear and report. Thus, the Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect to the parties= respective rights of custody and visitation. The portion of the order, which determined custody and visitation, was deemed a report (see CPLR 4320[b]), and the custody matter was remitted for further proceedings pursuant to CPLR 4403 before a judge of the Family Court.


Attorney Sanctioned for Submissions Filled with Half Truths, Distortions of Facts, Facts Taken Out of Context, And Omissions of Material Facts and Relevant Decisions

            In Matter of Ermini v Vittori, --- N.Y.S.3d ----, 2018 WL 3295635, 2018 N.Y. Slip Op. 05038 (2d Dept., 2018) after Family Court, issued a final order of protection in favor of the mother and the children and against the father, the attorney for the children moved pursuant to Family Court Act § 842 to extend that order of protection. The father cross-moved, in effect, to enforce certain purported orders of an Italian Court pertaining to visitation, and to remove the attorney for the children. The attorney for the children cross-moved, inter alia, pursuant to 22 NYCRR 130–1.1 for an award of an attorney’s fee. The mother’s attorney made an application pursuant to 22 NYCRR 130–1.1 for an award of an attorney’s fee. Family Court, inter alia, granted the cross motion of the attorney for the children, and the separate application of the mother’s attorney, pursuant to 22 NYCRR 130–1.1 for an award of attorneys’ fees to the extent of directing the father’s attorney, to pay the sum of $2,000 to each attorney. On the issue of attorney’s fees pursuant to 22 NYCRR 130–1.1, the court concluded, in part, that the father’s “submissions are filled with half truths, distortions of facts, facts taken out of context, and most distressingly, omissions of material facts and relevant decisions” and that most of the father’s “submissions were an attempt to revise and re-litigate facts that were already decided.” The father and his attorney appealed from those portions of the order. The Appellate Division affirmed.

Appellate Division, Third Department
           
Procedures mandated by FCA § 1017 must be strictly followed. Placement order must be set aside if a failure to comply with statute prejudiced either the rights of a relative to seek placement or the child’s right to be placed with a suitable relative

            In Matter of Richard HH v Saratoga County of Social Services, --- N.Y.S.3d ----, 2018 WL 3276162, 2018 N.Y. Slip Op. 04990 2018 WL 3276162 (3d Dept., 2018) in September 2014, the children were removed from the mother’s care and placed in the custody of respondent (DSS) after neglect petitions were filed against the mother and the children’s father. In February 2015, Family Court issued an order finding the children to be neglected and continuing their placement in the custody of DSS. In October 2015, petitioner, the children’s maternal uncle, filed two petitions seeking custody of the children and for permission to intervene in the neglect proceedings pursuant to Family Ct. Act § 1035 (f). Family Court’s denial of the uncle’s motion to intervene was reversed on appeal and upon remittal, the uncle was joined and two permanency hearings were conducted with respect to the younger child. Following a trial on the uncle’s custody petition and a Lincoln hearing, Family Court dismissed the uncle’s petition. The Appellate Division reversed.

            The Appellate Division held that the uncle was  prejudiced by DSS’s failure to comply with Family Ct. Act § 1017, which provides, as relevant here, that when a court determines that a child must be removed from his or her home based on neglect, the court shall direct the local commissioner of social services to conduct an immediate investigation to locate relatives who may be a placement resource and to provide any such individuals with written notice of the pendency of the neglect proceeding and the opportunity to seek custody of the child (see Family Ct. Act § 1017[1][a] ). After the investigation is completed, the court must determine whether there is a relative with whom the child may appropriately reside (see Family Ct. Act § 1017[1][c]). If a suitable relative exists, the court is required to “either place the child with that relative or with the local commissioner of social services with directions to allow the child to reside with that relative pending his or her approval as a foster parent,” and, notably, only if no suitable relative can be located should Family Court consider another placement. The statute, in short, is intended to guard not only the rights of relatives of a child who is removed from his or her home, but also to protect the rights and interests of children to be placed with their relatives”. It accomplishes this purpose by requiring that the initial placement of children who must be removed from their homes be made, whenever possible, with a relative, thereby allowing them to form or maintain bonds with family members rather than with foster parents. A placement order must be set aside if a failure to comply with [Family Ct. Act § 1017] prejudiced either the rights of a relative to seek placement or the child’s right to be placed with a suitable relative.

             The Appellate Division found that the uncle testified that he received a single telephone call from DSS personnel approximately four months after the children were placed in DSS custody asking whether he would be a custodial resource if the mother’s parental rights were terminated, and that he responded affirmatively. He stated that DSS did not contact him again until after he filed the instant custody petition—more than one year after the children were first removed from the mother’s home—when it sent him the New York State Handbook for Relatives Raising Children. In its appellate brief, DSS admitted that it did not timely provide the uncle with the required information but criticized him for not sooner seeking custody. Notably, the statute did not impose a duty on the uncle to have affirmatively sought placement based solely upon DSS’s inquiry regarding his willingness to be a custodial resource if the mother’s parental rights were terminated and before he was advised of the procedures by which he could do so. Rather, the statute imposed a duty on DSS to “immediately” conduct an investigation to locate relatives and provide the required information, in writing (Family Ct. Act § 1017[1][a]).

            The Appellate Division found that the failure of Family Court and DSS to strictly follow the statutory mandate to seek initial placement with a relative in this case created the very harm the statute was intended to prevent—long-term placement in foster care rather than with a suitable relative. Not only did DSS fail to identify the uncle as a custodial resource and to provide him with the mandated information, it ignored his initial expression of willingness to serve as a custodial resource for the child. Moreover, when the uncle filed his custody petition, he was treated as an unwelcome interloper by both DSS and Family Court, which erroneously denied his motion to intervene in the Family Ct Act article 10 proceeding and contemplated staying an investigation regarding the uncle’s suitability as a custodial resource that was being conducted in Texas pursuant to the Interstate Compact on the Placement of Children (see Social Services Law § 374–a [hereinafter ICPC]). Family Court’s conclusion that “[h]ad the [u]ncle requested that [the child] be placed with him in September, 2014, when she was initially placed in foster care, DSS may very well have placed [the child] with the [u]ncle” ignored the fact that DSS failed to fulfill its statutory duty to inform the uncle of the methods by which he could seek placement of the child. These failures were especially egregious given that Family Court and DSS now agreed that the uncle and his wife were able to provide a good home for the child. The procedures mandated by Family Ct. Act § 1017 are to be strictly followed.