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Saturday, January 11, 2020

Recent Decisions and Legislation January 1, 2020


January 1, 2020



The October 2019 update to my 9 volume treatise, Law and The Family New York, 2d has been released and is available on the Thomson Reuters website bookstore.

​​​Law and the Family York Forms, my 5 volume legal form set, has been released in a softcover edition, and is now titled Law and the Family New York Forms, 2019 Edition. It is available on the Thomson Reuters website bookstore.


Recent Legislation

Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section 358-a


            Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089  as well as of the Social Services Law section 358-a, to require an agency with which a child has been placed, either voluntarily or as a result of an abuse or neglect finding, or to whom guardianship and custody has been transferred as a result of the child being freed for adoption, to report to the attorney for the child not later than ten days in advance of any change in the child's placement status and not later than the next business day in any case in which an emergency placement change has been made. According to the memorandum in support of the legislation, first, it requires a report within five days of the date that any report of abuse or maltreatment is found to be indicated. Indicated reports include those naming the child and, where the subjects of the reports involve the person or persons caring for the child, reports naming other children in the home.  It contains an important proviso that such reports notify the recipients that the information shall be kept confidential, shall be used only in connection with the child protective, foster care or related proceedings under the Family Court Act and may not be re-disclosed except as necessary for such proceeding or proceedings and as authorized by law. Second, recognizing that fairness also dictates that such notifications be made to the attorneys for all parties, not simply the attorneys for the children, the measure requires that, except in cases involving children freed for adoption, both notices of changes in placement and indicated child maltreatment reports be conveyed to attorneys for the birth parents. Family Court Act §1017 was amended by adding a new subdivision 5. Family Court Act, §1055 (b)(E) was repealed. Family Court Act § 1055 was amended by adding a new subdivision (j). Family Court Act 1089 (d) 2 (vii) was amended by adding a new clause (H) and Social Services Law §358-a, subd. 3 was amended by adding a new paragraph (g).

Laws of 2019, Ch 716, enacted and effective December 20, 2019, amended Domestic Relations Law and the Civil Rights Law.


            Domestic Relations Law section 15 was amended to amend the
'Notice to Applicant', which appears on every application for a marriage license, to include language that informs those seeking a license that either or both spouses may elect to change their middle name to his or her current last name, any former last name he or she has had, or the last name of the other spouse. Domestic Relations Law section 14-a was amended to include the option of changing a middle name on the marriage license. Civil Rights Law section 65 was amended to provide that any person may elect to resume the use of a former middle name upon divorce or annulment and that the state shall not impose a fee to change the middle name on a state identifying document due to a change in marital status. The purpose of the amendments is to allow one or both parties to a marriage to elect to change their middle name on their marriage license. According to the memorandum in support of the legislation, many women and men are opting to change their last name upon marriage but want to keep their former last name in some capacity.  One popular way to accomplish this is to keep the former last name as a new or second middle name. Many states allow for such a change to occur with ease on the marriage license, but New York did not.


Laws of 2019, Ch 712 enacted and effective on December 20, 2019, amended Domestic Relations Law §11-a, subd. 1 a to allow the New York City clerk to designate additional staff members as he or she deems necessary to officiate marriages.


Laws of 2019, Ch 663, enacted on December 12, 2019, effective 90 days after it becomes a law, amended Family Court Act § 812, subd. 5, and Criminal Procedure Law § 530.11.

            Family Court Act § 812 and Criminal Procedure Law § 530.11, include protections for alleged victims of domestic violence. The statutes placed responsibility upon law enforcement, prosecutors and the courts to ensure by written notice that victims are made aware of their rights, of the expectations they may have to obtain assistance from both the civil and criminal justice systems and of the remedies and resources available to them. The notice must be in writing in both English and Spanish and must recite the statutory language verbatim. The required language in the notice was overly complex. Family Court Act § 812 and Criminal Procedure Law § 530.11 were amended substantially simplify the language contained in the notice while, at the same time, expanding the breadth of information it provides. The amendment also provides that the notice be made available, at minimum, in plain English, Spanish, Russian and Chinese.

Laws of 2019, Ch 627, enacted December 12, 2019, and effective immediately amended CPLR 3215 (b) to outline the procedure for an inquest on a default judgment.

            CPLR 3215 (b), as amended provides that a party entitled to judgment may be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or affirmations as proof of damages. However, if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or, after giving reasonable notice that it will do so, by written sworn statements of the witnesses. If the party seeking judgment gives such notice and submits proof by written sworn statements, he or she must make all of those witnesses available for cross-examination. 


Appellate Division, First Department

In proceeding to establish standing to assert parental rights in seeking visitation under Domestic Relations Law § 70, the court has the discretion to direct “more monied” party to pay the other party’s counsel fee

            In Kelly G v Circe H, --- N.Y.S.3d ----, 2019 WL 6869009 (1st Dept.,2019), the Appellate Division held, as a matter of first impression for the Court, that, in a proceeding to establish standing to assert parental rights in seeking visitation and custody under Domestic Relations Law § 70, the court has the discretion to direct the “more monied” party to pay the other party’s counsel and expert fees under Domestic Relations Law § 237 before that party has been adjudicated a parent. It affirmed the order granting respondent’s cross-motion for interim counsel fees to the extent of awarding her $200,000. The Appellate Division observed that Domestic Relations Law § 237(b), provides, in relevant part, that “upon any application ... concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires....” This statute, like Domestic Relations Law § 70, does not define the term “parent.” In holding that Domestic Relations Law § 70 “permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation” (Brooke S.B., 28 NY3d at 27), the Court of Appeals stressed that it “has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term ‘parent’ ” (Brooke S.B. at 24). Consonant with that approach, it found that highly inequitable results would flow in this case from permitting the party with far greater resources to seek custody as against the child’s primary parent without allowing that parent to seek counsel fees. Without determining that she is a parent for purposes beyond the application of Domestic Relations Law § 237(b), it found that Domestic Relations Law § 237(b) must be read to permit the court to direct the petitioner to pay respondent’s counsel fees as necessary “to enable [her] to ... defend the application ... as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.”
           
           
Appellate Division, Second Department


Supreme Court has the discretion to consider the application for counsel fees, made in opposition papers without a cross-motion

            In Ospina–Cherner, v. Daniel Cherner, --- N.Y.S.3d ----, 2019 WL 7160518 (2d Dept.,2019) the Appellate Division held that  Supreme Court had the discretion to consider the defendant’s application for an award of attorney’s fees, made in his opposition papers to the subject motion, even though he did not make a cross-motion under CPLR 2215 (see Fried v. Jacob Holding, Inc., 110 AD3d 56, 65).



Appellate Division, Fourth Department


22 NYCRR part 202 provisions do not apply to proceedings in the Family Court

            In Lopez v Lopez, --- N.Y.S.3d ----, 2019 WL 7044566 (4th Dept., 2019) the Appellate Division rejected the father’s challenges to the order of reference in this visitation proceeding. The father’s “ ‘argument that the court erred when it referred this matter to a referee( to hear and report ) in the absence of exceptional circumstances (see CPLR 4212) was waived, since the record established that [he] participated in the proceeding before the [R]eferee without objection. Contrary to the father’s further contention, the alleged failure of the order of reference to comply with 22 NYCRR 202.43(d) and 22 NYCRR 202.44(a) did not affect its validity because, with one exception not applicable here (see 22 NYCRR 202.16), “the provisions of 22 NYCRR part 202 apply only to ‘civil actions and proceedings in the Supreme Court and the County Court,’ not to proceedings in the Family Court” (McDuffie, 154 AD3d at 1309, quoting 22 NYCRR 202.1[a]; see Matter of McDermott v. Berolzheimer, 210 A.D.2d 559, 559–560 [3d Dept 1994] ). It also rejected the father’s contention that the order on appeal must be reversed because the court confirmed the Referee’s report before the expiration of the 15–day period set forth in CPLR 4403.

           
Although PAS is not routinely accepted as a scientific theory by New York courts the Court recognizes the effects of alienating behaviors by a parent

            In Matter of Krier v Krier, --- N.Y.S.3d ----, 2019 WL 7043498, 2019 N.Y. Slip Op. 09129 (4th Dept.,2019) the Appellate Division affirmed an order which granted the father sole legal and physical custody of the child. It concluded that the father established a sufficient “change in circumstances to warrant an inquiry into the best interests of the child” based on both the expert testimony that the child was demonstrating elements of parental alienation and “‘the continued deterioration of the parties’ relationship’. It concluded that there was a sound and substantial basis for the determination that an award of sole custody to the father was in the child’s best interests. The court properly weighed the relevant factors and found that all weighed in favor of placement with the father except the child’s wishes. Although the child was 15 years old at the time of the hearing, the court properly determined that his wishes were not entitled to great weight since the child was so profoundly influenced by his mother “that he cannot perceive a difference between” the father’s abandonment of the marriage and the father’s abandonment of him and that it was in the child’s best interests to reside with the father despite his wishes to the contrary.  Contrary to the contention of the mother and the AFC, the court did not improperly rely on the presence of “parental alienation syndrome” (PAS) in making its custody determination. The father’s expert did not conclude that PAS, as a diagnosis, existed in this case and rather testified that the type of conduct in which the mother engaged resulted in the child becoming alienated from the father. Although PAS is not routinely accepted as a scientific theory by New York courts (see Matter of Montoya v. Davis, 156 AD3d 132, 135 n 5 [3d Dept 2017]), the Court has repeatedly recognized the effects of alienating behaviors by a parent on children in custody and visitation determinations.

            The Appellate Division agreed with the mother and the AFC that the court exceeded its jurisdiction in suspending maintenance payments to the mother since the parties’ separation agreement setting forth that obligation is an independent contract. Family Court is a court of limited jurisdiction and cannot exercise powers beyond those granted to it by statute, and “[i]t generally has no subject matter jurisdiction to reform, set aside or modify the terms of a valid separation agreement” (Johna M.S., 10 NY3d at 366).


Fourth Department allows attorneys fees by affidavit holding “attorney’s fees should not be awarded without a hearing or requiring proof by affidavit substantiating the attorney’s fees requested”.    


            In Brinson v Brinson, --- N.Y.S.3d ----, 2019 WL 7043519 (4th Dept., 2019) the Appellate Division held that the court should have conducted an evidentiary hearing before granting respondent’s application for an award of his attorney’s fees since respondent failed to furnish sufficient documentation of the value of the services performed by the attorney. This issue was preserved since petitioner contested previous requests for attorney’s fees, at the final appearance respondent first requested the $3,000 in attorney’s fees but submitted no supporting documentation, and the petitioner was not afforded an adequate opportunity to dispute the same. It held that attorney’s fees should not be awarded without conducting a hearing or requiring proof by affidavit substantiating the attorney’s fees requested. (Moses v. Moses, 231 A.D.2d 850, 850 [4th Dept 1996]; see Matthews v. Matthews, 238 A.D.2d 926, 927 [4th Dept 1997]). An award for attorney’s fees is improper absent documentation of the submitted value of the services performed (see Johnston v. Johnston, 63 AD3d 1555, 1556 [4th Dept 2009]; Marshall v. Marshall, 1 AD3d 323, 324 [2d Dept 2003]; cf. Ackerman v. Midura, 145 AD3d 647, 648 [2d Dept 2016] ). Thus, it concluded that “it was an abuse of discretion to award the amount of counsel fees requested, without affording [petitioner] the opportunity to elicit further information on the reasonable value of those services” (Matter of Kobel v. Martelli, 112 A.D.2d 756, 757 [4th Dept 1985]). It modified the order and judgment by vacating the award of attorney’s fees and remitted the matter to Supreme Court for a determination regarding attorney’s fees based upon proper proof (see Matthews, 238 A.D.2d at 926; Moses, 231 A.D.2d at 850).





December 16, 2019

Announcement
I am pleased  to announce that commencing with the January 2, 2020 issue of the New York Law Journal I will resume writing my  "Law and the Family" column, which I wrote for the Law Journal for many years. The column will be a regular feature in the the Law Journal, appearing every other month.

Position Wanted

We are looking to establish an “of counsel” relationship with a Manhattan law firm.

Recent Legislation
          Laws of 2019, Ch 623, enacted December 12, 2019 amended the Family Court Act § 657(c) to include non-parents with lawful orders of custody as persons who may make medical decisions for minors in their care.

Laws of 2019, Ch 623, amended the Family Court Act § 657(c) to add persons possessing a lawful order of custody as persons who have the right and responsibility, alongside the current provision of those possessing a lawful order of guardianship, to make medical decisions and necessary consents regarding the child in their care. It also amended Public Health Law Section 2504(4) to include non-parents with lawful orders of custody along with parents and guardians as persons whose consent is not needed for the provision of medical, dental, health and hospital services when in the

            Family Court Act § 657 (c) provides:
                           

     (c) Notwithstanding any other provision of law to the contrary,
   persons possessing a lawful order of guardianship or custody of a child
   shall have the right and responsibility to make decisions, including
   issuing any necessary consents, regarding the child's protection, educa-
   tion, care and control, health and medical needs, and the physical
   custody of the person of the child. Provided, however, that nothing in
   this subdivision shall be construed to limit the ability of a child to
   consent to his or her own medical care as may be otherwise provided by
   law.



      Laws of 2019, Ch 62, enacted December 12, 2019 and effective immediately amended CPLR 3215 (b) to outline the procedure for an inquest on a default judgment.

            A defendant who defaults in appearing concedes only liability. Therefore, the defaulting defendant may still contest damages at an inquest.      In Rokina Opt. Co. v Camera King, , 63 N.Y.2d 728, 730 supra, the Court of Appeals held that "judgment against a defaulting party may be entered only upon application to the court along with notice to the defaulting party and 'a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages'."

            As amended, CPLR 3215 (b) provides that a party entitled to judgment may be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or affirmations as proof of damages. However, if the defaulting party gives reasonable notice that it will appear  at  the  inquest, the party seeking damages may submit any  proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or, after  giving  reasonable  notice  that  it  will  do  so, by written sworn statements of the witnesses. If the party seeking judgment gives such notice and submits proof by written sworn statements, he or she must make all of those witnesses available for cross-examination. 


            CRPL 3215(b) was amended to read as follows:

     (b)  Procedure before court.  The court, with or without a jury, may
   make an assessment or take an account or proof, or may direct a refer-
   ence.  The party entitled to judgment may be permitted to submit, in
   addition to the proof required by subdivision (f) of this section, prop-
   erly executed affidavits or affirmations as proof of damages, provided
   that if the defaulting party gives reasonable notice that it will appear
   at the inquest, the party seeking damages may submit any such proof by
   oral testimony of the witnesses in open court or, after giving reason-
   able notice that it will do so, by written sworn statements of the
   witnesses, but shall make all such witnesses available for cross-exami-
   nation.  When a reference is directed, the court may direct that the
   report be returned to it for further action or, except where otherwise
   prescribed by law, that judgment be entered by the clerk in accordance
   with the report without any further application. Except in a matrimonial
   action, no finding of fact in writing shall be necessary to the entry of
   a judgment on default. The judgment shall not exceed in amount or differ
   in type from that demanded in the complaint or stated in the notice
   served pursuant to subdivision (b) of rule 305 of this chapter.
  

Appellate Division, Second Department


Motion to modify parties’ apportionment of responsibility for AFC’s fees should not have been decided without evidentiary hearing

           In Lee v Rogers, 2019 WL 6334018 (2d Dept.,2019) after the Court of Appeals reversed the Appellate Divisions order, rejecting the adequate relevant information standard, and determined that an evidentiary hearing was required (see S.L. v. J.R., 27 N.Y.3d 558, 36 N.Y.S.3d 411, 56 N.E.3d 193) the AFC moved, in effect, for an award of attorney’s fees. The plaintiff opposed the motion and moved to modify the parties’ apportionment of responsibility for the fees for the AFC. Supreme Court denied the plaintiff’s motion for modification, and directed an evidentiary hearing on the reasonableness of the AFC’s fees. Following the hearing, the court found that the fees were reasonable, and entered an order awarding the AFC compensation of $34,624.65, payable in equal shares by the parties.

            The Appellate Division held that contrary to the plaintiff’s contention, the difference in opinion between it (see Matter of Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360) and the Appellate Division, Third Judicial Department (see Redder v. Redder, 17 A.D.3d 10, 792 N.Y.S.2d 201), as to whether attorneys for children may be compensated directly by the children’s parents, rather than by the State, did not give rise to a constitutional claim under the equal protection clauses of the state and federal constitutions.

            The Appellate Division held that  contrary to the plaintiff’s contention, it was appropriate for the AFC to make reasonable use of associates and support staff to conduct legal research and other work, under the AFC’s direct supervision, in connection with the appeal of the prior custody determination before the Court and the Court of Appeals (see 22 NYCRR 36.4[c][5] ). It agreed with the Supreme Court’s hearing determination finding that the fees requested by the AFC were reasonable.

            It held that plaintiff’s motion to modify the parties’ apportionment of responsibility for the AFC’s fees should not have been decided without an evidentiary hearing. Because the affidavits submitted by the parties provided sharply conflicting reports on the parties’ finances (see Anjam v. Anjam, 191 A.D.2d 531, 532, 594 N.Y.S.2d 822) and there was “no evidence in the record that the financial circumstances of the parties [had] ever been considered, an evidentiary hearing should have been conducted before the motion was decided.

            It remitted the matter to the Supreme Court for an evidentiary hearing on the parties’ respective finances, and a new determination thereafter of the plaintiff’s motion.


Not error for the Support Magistrate to impute to father the income of the father’s current spouse

            In Matter of Fanelli v Orticelli, 2019 WL 6519694 (2d Dept.,2019) the Appellate Division observed, that a support magistrate may impute income to a party based on resources available to the party, including “money, goods, or services provided by relatives and friends” (Family Ct. Act § 413[1][b][5][iv][D]). In affirming an order which increased the fathers child support obligation it held that it was not error for the Support Magistrate to impute to the father the income of the father’s current spouse in the support calculation (see Matter of Ladd v. Suffolk County Dept. of Social Servs., 199 A.D.2d 393, 394, 605 N.Y.S.2d 318; see also LiGreci v. LiGreci, 87 A.D.3d 722, 726, 929 N.Y.S.2d 253; Matter of Collins v. Collins, 241 A.D.2d 725, 727, 659 N.Y.S.2d 955).


Appellate Division, Third Department


Custody order reversed despite Family Court’s order being supported by the current record, where the lack of an AFC prejudiced the child’s interests

            In Matter of Marina C, v Dario D., --- N.Y.S.3d ----, 2019 WL 6331446, 2019 N.Y. Slip Op. 53953 (3d Dept.,2019) despite Family Court’s order being supported by the current record, the Appellate Division reversed and remitted for further proceedings conducted with the involvement of an AFC. The Court pointed out that it had  previously noted that the “appointment of an [AFC] in a contested custody matter remains the strongly preferred practice,” while acknowledging that “such appointment is discretionary, not mandatory” (Matter of Keen v. Stephens, 114 A.D.3d 1029, 1031, 981 N.Y.S.2d 174 [2014]. It has also “emphasized] the contributions competent [AFCs] routinely make in contested matters; they not only protect the interests of the children they represent; they can be valuable resources to the trial court”. While advocating for the child, an AFC may provide a different perspective than the parents’ attorneys, including through the presentation of evidence on the child’s behalf, and may “recommend alternatives for the court’s consideration.” Even absent a request, a court may appoint an AFC on its own motion (see Family Ct Act § 249[a]). It noted that Family Court had appointed an AFC for this child in connection with a previous proceeding that resulted in a stipulated order made less than two months before the commencement of this modification proceeding yet Family Court inexplicably did not appoint the same or another AFC to protect the child’s interests. The Court found that the lack of an AFC prejudiced the child’s interests. For example, the mother called the child’s therapist as a witness and no objection was raised when the therapist testified regarding information that the child had disclosed in therapy. Had an AFC been appointed, that attorney presumably would have sought to protect the private and confidential nature of the child’s discussions in therapy, rather than let the parents use the child’s statements and therapist as weapons to support their own goals. The father also testified regarding statements made by the child; an AFC could have objected to those hearsay comments. Further, an AFC could have called additional witnesses, asked questions of the witnesses called by the parties or presented other evidence to elicit information that would support the child’s position. It held that under the circumstances Family Court improvidently exercised its discretion by failing to appoint an AFC, and such failure prejudiced the child. It remitted for a new fact-finding hearing on the mother’s modification petition, with the appointment and participation of an AFC.


Modified stay-away order of protection pursuant to Family Ct Act § 1061 must reflect a resolution consistent with best interests of the child and must be supported by a sound and substantial basis in the record.

            In Matter of Andreija N, --- N.Y.S.3d ----, 2019 WL 6331396, 2019 N.Y. Slip Op. 53957 (3d Dept.,2019) petitioner, inter alia, commenced an abuse proceeding alleging that respondent sexually abused the child. On July 20, 2018, Family Court) issued a temporary stay-away order of protection against respondent prohibiting any contact with the child (see Family Ct Act § 1029). This order of protection was extended several times. In August 2018, the mother filed a petition seeking sole legal and physical custody of the child. Thereafter, by consent of the parties, a forensic psychologist was ordered to conduct a forensic interview of the child in November 2018, and her report was submitted to the court. The psychologist then completed a second report in May 2019. In both reports, the psychologist concluded that there was no credible evidence that the father sexually abused the child and recommended implementing the custody order. On the first day of a combined fact-finding hearing on both petitions, both of the psychologist’s reports were received into evidence on consent. Without any testimony being taken, respondent, joined by the attorney for the child, then moved to vacate the stay-away order of protection. Both petitioner and the mother objected, and, after taking a brief recess, Family Court issued a ruling from the bench vacating the stay-away order of protection, without explanation. The court then issued a new temporary order of protection in May 2019 allowing respondent to exercise unsupervised visitation pursuant to a parenting schedule comparable to the custody order. The Appellate Division held that Family Court abused its discretion by modifying the stay-away order of protection pursuant to Family Ct Act § 1061. The modified order must reflect a resolution consistent with the best interests of the child after consideration of all relevant facts and circumstances and must be supported by a sound and substantial basis in the record” (Matter of Yosepha K. [Chana D.], 165 A.D.3d 932, 933, 85 N.Y.S.3d 583 [2018] Although Family Court failed to articulate its reasoning for vacating the stay-away order of protection, there were  several factors that led it  to conclude that the court did not have good cause to do so. The decision to vacate the stay-away order of protection was made on the first day of trial and, the record should have been further developed before a determination was made as to whether it was in the child’s best interests to allow respondent unsupervised, overnight parenting time. This was particularly so given respondent’s ongoing, threatening behavior towards the mother and others via text message and on social media. In a footnote the Court pointed out that during the course of this dispute, respondent threatened multiple judges, posted on social media prior to an appearance that he was “getting ready to f*** up some justice and go to jail tomorrow,” posted a photo of himself pointing a rifle equipped with a scope – in violation of the terms of the stay-away order of protection – and posted, the night before the child’s interview with the psychologist, “I know where and when so I’m packed up and ready to take back what’s mine tomorrow. Thoughts and prayers.” Then, on the day of the interview, respondent posted that he was “waiting at [the psychologist’s location]. Started at 11:00 got about 45 minutes to an hour until the sh** hits the fan. You all deserve what you get.”

            In her reports, the psychologist confirmed that she reviewed a series of emails and text messages between the parents and certain Facebook postings of respondent. The psychologist noted that the mother perceived respondent “as dangerous and threatening,” but did not produce any documentary proof of violence. The psychologist characterized respondent’s “behavior and statements [as] unconventional” and noted that “he has never been violent or caused harm to [the child] or [the mother].” The Courts concern with these observations was that domestic violence is not limited to physical violence. In its view, respondent’s behavior and threats were alarming and demonstrated a concerted effort to control and coerce the mother and others who were associated with this custody case. As such, it believed that respondent’s unabashed behavior evinced the hallmarks of domestic violence and should not have been diminished as simply “unconventional” (see e.g. www.opdv.gov/domestic-violence/what-is-domestic-violence.html; www.opdv.gov.publications/stalking-info guide). Given the need to further develop this record, it concluded that Family Court’s determination was premature and that good cause had not been shown to vacate the stay-away order of protection.

            In a footnote the Appellate Division stated that it recognized that the record on appeal included petitioner’s order to show cause submission to it seeking a stay pending appeal, which included respondent’s text messages and Facebook postings. Respondent maintained that these documents were not presented to Family Court and should not be considered as outside the proper record on appeal (see CPLR 5526). The record was unclear as to whether these submissions were before Family Court. The Court pointed out that the general rule is that the Court may not consider matters outside the record, i.e., materials not presented to the trial court (see Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298, 361 N.Y.S.2d 140, 319 N.E.2d 408 [1974]). Respondent, however, acknowledged in his brief that “all the submissions ... were reviewed and considered by [the psychologist].” Correspondingly, the psychologist included a list of documents considered, including text messages and Facebook posts, and comments on certain of these items. Given this context, and the paramount issue of the child’s best interests, it held that it would consider this submission (see Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d at 298–299, 361 N.Y.S.2d 140, 319 N.E.2d 408; Callahan v. Cortland Mem. Hosp., 127 A.D.2d 921, 922, 512 N.Y.S.2d 281 [1987]).

Family Court


In dismissing Adult Adoption Petition, Family Court points out apparent inadequacy of the official forms promulgated for adult adoptions

In Matter of the Adoption of Jalyssa L.-J., 2019 WL 6711559 (Family Ct., 2019)
a proceeding for the adoption of an adult child by her aunt, the prospective adoptive parent submitted a “Petition for Adult Adoption” (Adoption Form 29a) and a “Consent to Adult Adoption by Adoptee” (Adoption Form 29b). The only other papers submitted in support of the adoption were  purported copies of the birth certificates for both the proposed adoptive parent and the adult adoptive child and a proposed Report of Adoption (Form DOH-1928) promulgated by the Department of Health to notify it of a completed adoption for the purpose of making a new birth certificate. See Public Health Law § 4138. Family Court dismissed the petition for failure to seek and obtain pre-certification as a qualified adoptive parent in accordance with Domestic Relations Law § 115-d, see DRL § 115(1)(b), and for failure to make any showing that the proposed adoption would be in the best interests of the child. Id. § 116(2). In dismissing the petition, the Court pointed out the apparent inadequacy of the official forms promulgated for adult adoptions. See Family Ct. Act § 214; Uniform Rules for the Fam Ct (22 NYCRR) § 205.7(a). It explained that while adult adoptions may be dealt with more liberally than child adoptions, they are subject to the same statutory law as other adoptions. Matter of Mazzeo, 95 AD2d 91, 92 (3d Dept 1983). The Court of Appeals has observed, “an adult adoption must still be in the best interests of the adoptive child and the familial, social, religious, emotional and financial circumstances of the adoptive parents which may be relevant must still be investigated. The Court explained that the only simplified statutory procedure for adult adoptions is the elimination of the requirement for the consent of the adoptive child’s legal parents and custodians. Matter of Anonymous, 106 Misc 2d 792, 797 (Fam Ct, Kings County 1981); see DRL § 111(4).  However, the adult adoption petition form does more than simply remove the references to parental consent that are found in the standard form petition. The form also removes references to (1) the religious faith and income of the adoptive parent(s); (2) the religious faith of the adoptive child; (3) the heritage, religious faith, education and general physical appearance of the birth parents; (4) the adoptive child’s medical history; (5) the child protective history of the adoptive child and the adoptive parent(s); and (6) the criminal history of the adoptive child and the adoptive parent(s). All of this information is required either directly or indirectly by statute and is necessary to determine the best interests of the adult adoptive child. See DRL § 115, 115-d; 116; see also DRL § 112(3); 115(11).

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