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Saturday, November 27, 2021

Recent Decisions and Legislation

 November 24, 2021

Family Court could exercise subject matter jurisdiction in this family offense proceeding notwithstanding that the offenses occurred out of state

In Matter of Phillip D.S. --- N.Y.S.3d ----, 2021 WL 5364714, 2021 N.Y. Slip Op. 06460 (1st Dept.,2021) the Appellate Division held that Family Court could exercise subject matter jurisdiction in this family offense proceeding notwithstanding that the offenses occurred out of state (see Opportune N. v. Clarence N., 110 A.D.3d 430, 430–431, 972 N.Y.S.2d 245 [1st Dept. 2013]; Matter of Jose M. v. Angel V., 99 A.D.3d 243, 246, 951 N.Y.S.2d 195 [2d Dept. 2012]).
Argument that the  father failed to establish a change in circumstances waived where mothers petition alleged that there had been such a change in circumstances’
In Allison v Seeley-Seek, --- N.Y.S.3d ----, 2021 WL 5410024, 2021 N.Y. Slip Op. 06524 (4th Dept.,2021) a proceeding to modify a prior custody order the Appellate Division rejected the mother’s argument that the  father failed to establish a change in circumstances sufficient to warrant an inquiry into whether a modification of the prior order is in the best interests of the children. It held that she waived that contention “ ‘inasmuch as [she] alleged in her own ... petition[s] that there had been such a change in circumstances’ ” (Fowler, 198 A.D.3d at ––––, ––– N.Y.S.3d ––––, 2021 N.Y. Slip Op. 05436).

November 17, 2021
   
A court may grant relief that is warranted by the facts plainly appearing on the motion papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.
 In Trazzera v Trazzera, --- N.Y.S.3d ----, 2021 WL 5226238, 2021 N.Y. Slip Op. 06208 (2d Dept.,2021) the parties stipulation of settlement dated December 31, 2018 which was incorporated in their September 19, 2019 judgment of divorce provided for  joint legal custody of their child, joint decision-making authority, and the defendant having residential custody of the child, subject to the plaintiff’s parental access.. The Appellate Division held that  Supreme Court erred by, in effect, granting, without a hearing,  defendant’s motion which was to modify the parties’ stipulation of settlement and judgment of divorce to award her sole legal custody of the child to the extent of awarding her final decision-making authority as to any major child-related issue about which the parties could not agree, and denying plaintiff’s cross motion  to modify the stipulation of settlement and judgment of divorce so as to award him sole legal custody. A court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.  Although the plaintiff contended that the court ruled sua sponte, the court had before it motions by both parties seeking sole legal custody. The award of final decision-making authority was not “dramatically unlike” the relief requested, as decision making is part and parcel to legal custody. However, the court erred in granting this award without a hearing. It remitted the matter to the Supreme Court  for a hearing .
       
A parent seeking custody or contesting a substantial infringement of her right to custody must be advised “before proceeding that she has the right to be represented by counsel of  her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the where she is financially unable to obtain the same

In Wondemagegehu v Edem, --- N.Y.S.3d ----, 2021 WL 5226212 (Mem), 2021 N.Y. Slip Op. 06213(2d Dept.,2021) the  parties were married in 2005, and had two children. In 2014, the plaintiff commenced the instant action for a divorce. Throughout this highly contested action, the parties engaged in extensive motion practice and appeared on multiple occasions before the Supreme Court, resulting in the issuance of several orders, oral rulings, and a judgment of divorce. The Supreme Court(1) directed the defendant to pay the plaintiff maintenance of $1,438.82 per month for 36 months, (2) awarded the plaintiff sole legal and residential custody of the parties’ two children, with certain parental access to the defendant, and (3) directed the defendant to pay the plaintiff child support of $1,774.67 per month.
The Appellate Division pointed out that the  parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child must be advised “before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same. A party may waive the right to counsel, provided he or she makes a knowing, voluntary, and intelligent waiver of that right. Here, the Supreme Court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se with regard to the hearing and determination of the defendant’s motions to modify and/or vacate the custody order. It modified the judgment of divorce by deleting the provision thereof awarding the plaintiff sole legal and residential custody of the children, without regard to the merits of the defendant’s position, and remitted the matter to the Supreme Court, for a determination of whether the defendant wishes to waive his right to counsel, the assignment of counsel if warranted, a new hearing and a new determination. It affirmed the support awards. 
Generally, a process server’s affidavit of service establishes a prime facie case as to the method of service and, therefore, gives rise to a presumption of proper service
In Matter of Reyes v Munoz, --- N.Y.S.3d ----, 2021 WL 5226157 (Mem), 2021 N.Y. Slip Op. 06176(2d Dept.,2021) the parties were the parents of a child, who was born in December 2009. In October 2019, the mother filed a petition seeking custody of the child.  The mother submitted an affidavit from a process server, accompanied by an affidavit of translation, attesting that the process server recognized the father personally, and on the process server’s third attempt, delivered the custody petition, motion for special findings, and notice of next court date to the father in Honduras. Family Court dismissed the petition for lack of jurisdiction over the father. The Appellate Division reversed and remitted for a hearing.  It pointed out that Service without New York State may be made in the same manner as service is made within the state (see Domestic Relations Law § 75–g[1][a]; CPLR 313). Proof of service outside the state shall be by affidavit of the individual who made the service. (Domestic Relations Law § 75–g[2]). Generally, a process server’s affidavit of service establishes a prime facie case as to the method of service and, therefore, gives rise to a presumption of proper service. It held that the affidavit of service of the mother’s process server constituted prima facie evidence of proper service of the custody petition on the father. The record did not contain a sworn denial by the father of receipt of service with specific facts to rebut the statements in the process server’s affidavit. Therefore, no hearing on the validity of process of service was necessary and the Family Court should not have dismissed the petition.

Although the mother did not specifically seek an upward modification based on an increase in the father’s income by 15% or more, it was proper to modify the father’s child support obligation on this basis, as the parties declined to opt out of Family Court Act § 451(3)(b).
In Giraldo v Fernandez, --- N.Y.S.3d ----, 2021 WL 5226159, 2021 N.Y. Slip Op. 06170(2d Dept.,2021) the parties  September 6, 2013, a stipulation regarding child support was incorporated in to their  February 7, 2014, judgment of divorce but did not merge. The judgment of divorce provided: “Each party has the right to seek a modification of the child support order upon a showing of (I) a substantial change in circumstances, or (II) that three years have passed since the order was entered, last modified or adjusted, or (III) there has been a change in either party’s gross income by 15 percent or more since the order was entered, last modified or adjusted; however, if the parties have specifically opted out of subparagraphs (II) or (III) of this paragraph in a validly executed agreement or stipulation, then that basis to seek modification does not apply. The parties have not elected to opt[ ] out of subparagraphs (II) or (III).” On May 23, 2019, the mother filed a petition in the Family Court, Nassau County, for an upward modification of the father’s child support obligation pursuant to the terms of the judgment of divorce. She alleged a change in circumstances in that the father “makes more money, our son is older and requires more.” She further alleged that “[t]he parties have not specifically agreed otherwise in a validly executed agreement or stipulation and three years have passed since the order was entered, last modified or adjusted.” In support of her petition, the mother submitted the father’s 2018 federal tax return, which demonstrated that the father’s total income was $117,316, a substantial increase from his $45,000 annual income at the time the stipulation was entered.
 
After a hearing, in a fact-finding order dated March 13, 2020, the Support Magistrate found that the mother “has met her burden of proving a substantial change in circumstances” in that the father’s income has increased by at least 15% since the entry of the judgment of divorce. The Support Magistrate determined that the mother and father have a respective child support obligation of 46% and 54%, and modified the father’s child support obligation to $522.55 biweekly. The father filed objections to the Support Magistrate’s order. Her alleged that the order granted relief based on a cause of action never alleged by the mother and granted relief that was not requested or supported by the record, and the support obligation was unjust and inappropriate.  Family Court denied the father’s objections. The Appellate Division affirmed. It noted that the court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances” (Family Ct Act § 451[3][a]). Additionally, unless the parties have specifically opted out, “[s]ection 451 of the Family Court Act permits a court to modify an order of child support where (1) either party’s gross income has changed by 15% or more since the order was entered or modified, or (2) three years or more have passed since the order was entered, last modified, or adjusted” (Family Ct Act § 451[3][b][I], [ii]). Although the mother did not specifically seek an upward modification based on an increase in the father’s income by 15% or more, it was proper for the Support Magistrate to modify the father’s child support obligation on this basis, as the parties declined to opt out of Family Court Act § 451(3)(b). In any event, the mother demonstrated a substantial change in circumstances and that three years had passed since the order was entered, last modified, or adjusted, warranting an upward modification of the father’s child support obligation. A substantial change in circumstances may be measured by comparing the parties’ financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued. The mother demonstrated her entitlement to an upward modification by providing the father’s 2018 federal income tax return, showing that his current income has more than doubled since the time the stipulation was entered. Additionally, the stipulation and the judgment of divorce were never modified or adjusted, and more than three years had passed, triggering review pursuant to Family Court Act § 451(3)(b)(I).
Where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken
 
In Weichman v Weichman, --- N.Y.S.3d ----, 2021 WL 5226234, 2021 N.Y. Slip Op. 06211 (2d Dept.,2021) the parties were married in 2005. There is one child of the marriage, born in 2006. The child was raised in accordance with the parties’ Orthodox Jewish Chasidic faith and attended an Orthodox Chasidic yeshiva from the age of two. In March 2015, the plaintiff commenced this action for a divorce. The plaintiff identified as a member of the LGBTQ community, and considers herself an Orthodox Jew. Supreme Court awarded the defendant sole custody of the child, with the plaintiff to have specified periods of parental access. The court imposed certain restrictions on the plaintiff’s periods of parental access, including a requirement that: “The [plaintiff] shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child’s Orthodox Jewish Chasidic Faith. Thus, the [plaintiff] shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square.” The Appellate Division vacated  Supreme Court’s direction that, during her periods of parental access, she “shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child’s Orthodox Jewish Chasidic Faith”. In the absence of a written agreement, the custodial parent may determine the religious training of a child. Courts may properly direct noncustodial parents, during periods of parental access, to respect the children’s religious beliefs and practices and make reasonable efforts to ensure the children’s compliance with their religious requirements. However, a court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. A religious upbringing provision “should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely. Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken. Here the provisions of the judgment which expressly require the plaintiff to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access and the breadth of the provision in forbidding her to “expose” the child to any activities which violate the child’s Orthodox Jewish Chasidic faith had the same effect as the provisions this Court struck down in Cohen v. Cohen, 182 A.D.3d at 547, 122 N.Y.S.3d 650 and Weisberger v. Weisberger, 154 A.D.3d at 53, 60 N.Y.S.3d 265. The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child’s faith during her periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements. The defendant’s testimony at the trial supported this conclusion.

Equal Distribution of martial property appropriate in 32–year given the parties relatively advanced ages, and the plaintiff’s longtime indirect contributions to the businesses by supporting the defendant and affording him the time to manage the family enterprises.
In Silvers v Silvers, 197 A.D.3d 1195, 153 N.Y.S.3d 548, 2021 N.Y. Slip Op. 04987 (2d Dept.,2021) the plaintiff commenced this action for a divorce in 2012, following a 32–year marriage of the parties, whose two children were emancipated at the time of commencement. Supreme Court determined that the defendant, during the parties’ marriage, purchased from his father the family’s longtime insurance business, Ralph Silvers Agency, and that the Agency was marital property subject to equitable distribution. The court directed that $595,000, the stipulated value of the Agency, should be divided equally between the plaintiff and the defendant. The court determined that the defendant was the owner of a 10% interest in a real estate holding company known as JAVE Properties Corporation, which was marital property subject to equitable distribution, and its then unknown value should be divided equally between the parties. The court directed that upon the plaintiff’s request, the defendant may buy out her ownership interest in JAVE for the sum of $38,375. The court awarded the plaintiff a credit of $30,000 to offset the defendant’s wasteful dissipation of certain marital assets. The court awarded the plaintiff maintenance of $1,375 per month for a period of 13 years from the commencement of the action and the sum of $20,000 for attorneys’ fees and expenses incurred in connection with the defendant’s conduct in failing to timely provide disclosure, which resulted in unnecessary delay. The Appellate Division affirmed.
 
The Appellate Division held that Supreme Court providently exercised its discretion in determining that the defendant’s interest in the Agency was acquired during the marriage and that the Agency constituted marital property. The court, which was in the position to see the witnesses in person at trial and to assess the credibility of their testimony, found the defendant’s claim that he first received the Agency as a gift in 2008 to lack credibility, as it was belied by the defendant’s tax returns filed between 2000 and 2011, in which he repeatedly and unambiguously represented that he was the sole proprietor of the Agency. It also  providently exercised its discretion in determining that the defendant failed to meet his burden of demonstrating that JAVE was his separate property. The relevant tax returns demonstrated that the defendant had an interest in JAVE as a sole owner as far back as 2007, both before and after a purported stock surrender, and other documentary evidence undercut the defendant’s claim that JAVE constituted separate property.
The Supreme Court did not improvidently exercise its discretion in determining  that an equal distribution of the defendant’s interest in the Agency and JAVE was appropriate. Particularly given the 32–year duration of the parties’ marriage, the plaintiff’s and the defendant’s relatively advanced ages of 67 and 70, respectively, at the time of trial, and the plaintiff’s longtime indirect contributions to the businesses by supporting the defendant and affording him the time and energy to manage the family enterprises, and given that the defendant’s testimony concerning both the Agency and JAVE was found to lack credibility, the court’s award to each party of 50% of the defendant’s interest in the Agency and JAVE was proper.

Appellate Division, Fourth Department

Appellate Divison finds no basis to disturb the monthly payment of the distributive award  set by the court despite the unusual manner in which it calculated the interest.
In Mehlenbacher v Mehlenbacher, --- N.Y.S.3d ----, 2021 WL 5275369, 2021 N.Y. Slip Op. 06219 (4th Dept., 2021) the Appellate Division rejected defendant’s contention that the court abused its discretion in setting the monthly payment for the distributive award owed to her. Although the court determined that the $272,831 distributive award would be paid to her over 15 years in monthly installments at five percent interest, the figure for monthly payments awarded by the court, $1,590, was inaccurate if the interest is compounded monthly. Rather than compounding the interest monthly, the court divided the amount of the distributive award by the total number of months to arrive at an interest-free monthly payment of $1,515. Then, in determining the monthly payment owed to defendant, the court simply added five percent of $1,515 to each monthly payment to calculate the amount awarded. Based on the size of the distributive award, the nonliquid nature of plaintiff’s assets, and plaintiff’s ability to pay, there was no basis to disturb the monthly payment set by the court despite the unusual manner in which it calculated the interest.
 
The Appellate Division held that the court did not err in declining to award maintenance to her. The court did not abuse its discretion in light of the size of the distributive award. For the same reason, the court did not err in reducing plaintiff’s child support obligation from his pro rata share of the presumptively correct amount of child support 
In a proceeding to revoke an extra judicial surrender the determination that a best interests hearing was required following the revocation and that the situation was “no different than a private placement adoption” constituted error.
In Matter of Tony S.H., --- N.Y.S.3d ----, 2021 WL 5275507, 2021 N.Y. Slip Op. 06238 (4th Dept., 2021) a  guardianship and custody proceeding pursuant to Social Services Law § 383-c, the Appellate Division observed that the statute allows the birth parent to revoke an extra-judicial surrender within a specified period (§ 383-c [6] [a]). Here, it was undisputed that the birth mother timely revoked her extra-judicial surrender within the required 45-day period. Nonetheless, despite the arguments to the contrary raised by the birth mother the court initially determined that a best interests hearing was required by Social Services Law § 383-c and later reasoned that the situation was “no different than a private placement adoption” and, thus, Domestic Relations Law § 115-b applied, which required a best interests hearing following the revocation. It held that those determinations constitute error. First, the plain language of Social Services Law § 383-c (6) (a) mandates that a timely revocation shall render the extra-judicial surrender a nullity and that the child shall be returned to the care and custody of the authorized agency, and the statute contains no language providing for a best interests hearing in the event of such a timely revocation. Second, the court erroneously determined that the agency adoption as governed by Social Services Law § 383-c was indistinguishable from a private placement adoption as governed by Domestic Relations Law § 115-b. There is a critical difference between the statutes regarding the consequences that flow from a timely revocation. Where the adoptive parents in a private placement adoption oppose the birth parents’ timely and proper revocation of consent, the court must hold a best interests hearing to determine what disposition should be made with respect to the custody of the child (see Domestic Relations Law § 115-b [6] [d]). The statute governing revocations of extra-judicial surrenders in agency adoptions, by contrast, does not provide for a best interests hearing (see Social Services Law § 383-c [6]). Thus, the court here had no statutory basis for refusing to deem the surrender a nullity, denying the birth mother’s motion, and instead conducting a best interests hearing.
 
It rejected the argument that the court had a contractual basis for conducting a best interests hearing because the language of the surrender indicated that such a hearing might be required upon the birth mother’s timely revocation. Social Services Law § 383-c (5)—which sets forth the required form of surrenders does not provide that a revocation is effective only upon a determination after a best interests hearing (see § 383-c [5] [d] [ii]). New Hope deviated from the statute by inserting language in the surrender indicating that, even if the birth mother attempted to revoke the surrender within 45 days, a best interests hearing may be required. Inasmuch as that language contravened the governing statute, it did not provide a valid basis for the court’s refusal to give effect to the birth mother’s timely revocation. It held that the court erred in refusing to deem the surrender a nullity, denying the birth mother’s motion seeking that relief, and granting New Hope’s petition seeking approval of the surrender.

Appellate Division holds that the court erred in considering the mother’s motion, which was  mailed eight days before the return day  because it was untimely. (See CPLR 2214 (b))  
In Matter of Streiff v Streiff, --- N.Y.S.3d ----, 2021 WL 5275559, 2021 N.Y. Slip Op. 06252 (4th Dept., 2021) on January 29, 2020, which was eight days before the scheduled hearing on the petitions, respondent mother filed a motion seeking, inter alia, to preclude the father from offering into evidence certain materials.  A return date was not initially provided on January 29, 2020, but Family Court later advised the mother’s counsel that the motion would be returnable on February 6, 2020, which was the previously scheduled date for the hearing on the father’s petitions. The father did not respond to the motion. Prior to beginning the hearing, the court stated that the father had not responded to the motion. The father’s counsel replied that the motion was untimely. The mother’s counsel explained that she had mailed the motion to the father’s counsel on January 29, 2020, and the court suggested that the eight-day period between mailing and the return date was sufficient. The father responded that he had not received the motion papers until that Monday, i.e., February 3, 2020. The court rejected the father’s contention that the motion was untimely stating that it was “going to entertain the motion.” The father’s counsel addressed the merits of the motion. The court repeated that the father had not responded to the motion, and granted those parts of the motion seeking to preclude the materials and to strike the allegations in the petitions related thereto. Based on a request to withdraw the petitions by the father’s counsel following the court’s decision to grant the mother’s motion in part, the court dismissed the petitions, with prejudice. The Appellate Division held that the court erred in considering the mother’s motion because it was untimely. Pursuant to CPLR 2214 (b), “[a] notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard.” Although service is complete upon mailing, five days must be added to any relevant time period measured from the date of service when service is effected by mail (see CPLR 2103 [b] [2]). At the hearing, the mother’s counsel stated that she served the motion papers by mailing them on January 29, 2020, i.e., eight days before the return date on February 6, 2020. Adding five days to the typical eight-day period, the father’s counsel lacked adequate notice of the motion and that the court erred in considering it (see generally State Bank of Texas v. Kaanam, LLC, 120 A.D.3d 900, 901, 991 N.Y.S.2d 818 [4th Dept. 2014]).

November 11, 2021
Appellate Division, First Department
First Department holds that Family Court Act § 439(e)  is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it.
          In Matter of Liu v Ruiz, --- N.Y.S.3d ----, 2021 WL 5183560, 2021 N.Y. Slip Op. 06089 (1st Dept.,2021) on February 5, 2020, petitioner filed a child support violation petition in Family Court seeking to enforce child support arrears against the father. On October 15, 2020, after a hearing, the Support Magistrate issued findings of fact, concluding that the father did not willfully violate the child support order. On November 13, 2020, petitioner served her objections to the findings of fact and, on November 24, 2020, the father served his rebuttal. Pursuant to Family Court Act § 439(a), a ruling on the objections was required to be issued no more than 15 days later. However, a Family Court judge had not even been assigned to the matter when that period of time elapsed. On December 28, 2020, the mother commenced this proceeding by order to show cause, pursuant to CPLR 7803(1). The petition sought mandamus relief against Judge Jeanette Ruiz, in her official capacity as Chief Administrative Judge of the New York City Family Court (CAJ), to compel a decision on the mother’s objections, in compliance with Family Court Act § 439(e). The mother asserted that because the child, now 15 years old, was autistic and had more than $8,000 in monthly expenses, not receiving child support was “crushing.” Petitioner also sought reasonable counsel fees under CPLR 8601(a), including as “a catalyst to obtaining finally a decision on the objections.” The Appellate Division held that Family Court Act § 439(e) was violated in this instance. The statute is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it (see Rubin v. Della Salla, 107 A.D.3d 60, 67, 964 N.Y.S.2d 41 [1st Dept. 2013]. Because the CAJ responded to the mother’s petition by assigning a Family Court judge to rule on her objections, and because the CAJ offered no substantial justification for not having enforced Family Court Act § 439(e) before the petition was filed, the matter was remanded for an assessment of the mother’s attorneys’ fees under the State EAJA.
 

Appellate Division, Second Department

Supreme Court improvidently applied a discount to the average appreciation value of the plaintiff’s minority interest in Long Island Plastic Surgical Group, due to his lack of control as a minority owner to transfer his interest, which far exceeded the 15–20% discount that both experts agreed was appropriate. It determined that a 20% discount should be applied
 
In Davenport v Davenport, --- N.Y.S.3d ----, 2021 WL 5099033, 2021 N.Y. Slip Op. 05946 (2d Dept.,2021)1 the parties were married on July 3, 2010, and had no children. The plaintiff was a surgeon with a minority interest in Long Island Plastic Surgical Group (hereinafter LIPSG). The defendant was a pediatric nurse practitioner who worked intermittently throughout the marriage. In April 2016, the plaintiff commenced the action for a divorce. Supreme Court, among other things, determined that the marital portion of the plaintiff’s interest in LIPSG was $500,000 and awarded the defendant 10% of this amount, awarded the defendant 10% of the stipulated value of business entities known as Portman, LLC, Big Bang Beverage, LLC, and TK Styles Properties, LLC, awarded the defendant 10% of the stipulated value of certain investment accounts with Pershing Advisors Solutions, LLC, and RM Stark Investment, awarded the defendant 25% of the stipulated value of certain bank accounts, and awarded the defendant 25% of the stipulated value of the marital residence after deducting the plaintiff’s separate property credit.
The Appellate Division held the Supreme Court providently determined that the methodology and valuations of the defendant’s forensic expert, Karl Jahnsen, were more objective than that of the court-appointed neutral forensic expert. The court also providently determined, based upon the expert testimony, that a discount should be applied to the average appreciation value of the plaintiff’s interest in LIPSG, due to his lack of control as a minority owner to transfer his interest, which results in a lack of marketability. However, in valuing the marital appreciation of the plaintiff’s interest in LIPSG at only $500,000, the court improvidently applied a discount to Jahnsen’s average appreciation value which far exceeded the 15–20% discount that both experts agreed was appropriate for this lack of marketability. It determined that a 20% discount should be applied, and valued the marital appreciation of the plaintiff’s interest in LIPSG at $1,344,686.50. In arriving at the value, it first subtracted the husbands experts calculation of the value of the plaintiff’s interest in LIPSG at the date of marriage pursuant to the relative unit method ($5,108,561), from his calculation of the value of the plaintiff’s interest in LIPSG at the date of commencement of the action pursuant to the relative unit method ($6,552,653), and then discounted that amount by 20%, which equaled $1,155,274. It then subtracted his  calculation of the value of the plaintiff’s interest in LIPSG at the date of marriage pursuant to the reasonable compensation method ($6,733,054), from his calculation of the value of the plaintiff’s interest in LIPSG at the date of commencement of the action pursuant to the reasonable compensation method ($8,650,678), and then discounted that amount by 20%, which equaled $1,534,099. It then added the values of both methods, and divided that sum by 2. It further held that it was not an improvident exercise of the Supreme Court’s discretion to award the defendant only 10% of the marital appreciation in the plaintiff’s interest in LIPSG, in light of the brief duration of the marriage and the defendant’s minimal contribution to the practice.
 
The evidence presented at trial did not indicate that the plaintiff’s involvement in certain business entities involved anything more than investing marital monies into the companies. Further, although certain investment accounts were actively managed, the plaintiff admitted that he only spoke to the manager every couple months. As such, it was improper to distribute these marital assets in the same manner as the plaintiff’s interest in LIPSG, instead of the same manner as the plaintiff’s bank accounts. The defendant was awarded 25% of the stipulated value of each of those entities and accounts.
 
The defendant was also awarded 40% of the stipulated value of the marital residence, taking into consideration her significant direct contributions to the construction, design, and decoration of the home, and that the plaintiff was to receive a significant separate property credit for any premarital money that he invested in the home.
 
Supreme Court providently exercised its discretion in awarding the plaintiff 1% of the value of defendant’s retirement accounts where she  made no contributions to the accounts, which accumulated funds while the parties were separated but prior to the commencement of this action.
In Cuomo v Moss, --- N.Y.S.3d ----, 2021 WL 5099014, 2021 N.Y. Slip Op. 05945 (2d Dept.,2021) the parties were married on October 5, 1996, and had no children. On February 27, 1997, the defendant and the plaintiff’s mother each acquired a one-half interest in certain real property in Suffolk County where the parties lived together (hereinafter the marital residence). The parties both made payments toward the mortgage on the marital residence until 2011, when the defendant left the marital residence to live in Tennessee for a job. After the defendant left the marital residence, the plaintiff solely paid the remaining balance due on the mortgage of $68,000. During the marriage, the defendant obtained a home equity line of credit (HELOC), which she solely paid after leaving the marital residence in 2011. In November 2017, the plaintiff commenced the action for a divorce. The Supreme Court, inter alia, (1) awarded the plaintiff 50% of the defendant’s interest in the marital residence, (2) declined to award the defendant a credit for payments she made toward the HELOC, (3) awarded the plaintiff a credit of $34,000 for payments he made toward the mortgage on the marital residence, and (4) awarded the plaintiff 1% of the value of the defendant’s retirement accounts.
The Appellate Division held that the Supreme Court providently exercised its discretion in awarding the plaintiff 1% of the value of the defendant’s retirement accounts. The court sufficiently took into account that the plaintiff made no contributions to the defendant’s retirement accounts, which accumulated funds while the parties were separated but prior to the commencement of this action, by awarding the plaintiff only 1% of the value of the defendant’s retirement accounts.
  However, the Supreme Court improvidently exercised its discretion in awarding the plaintiff a credit in the sum of $34,000 for payments he made toward the mortgage on the marital residence. Where a party has paid the other party’s share of what proves to be marital debt during the pendency of the action, including payments toward the mortgage on the marital residence, reimbursement is required. However, as a general rule, where the payments are made before either party is anticipating the end of the marriage, ... courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets” (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415)  Here, the plaintiff’s payments toward the mortgage, which was satisfied in October 2017, were made prior to the commencement of this action, and thus, the plaintiff was not entitled to a credit for those payments.
       
Where there was an agreement but no  custody order, the children were not being illegally detained by the mother, and the father could not establish a right to habeas corpus relief
  In Toussaint v Doucey, --- N.Y.S.3d ----, 2021 WL 5099056, 2021 N.Y. Slip Op. 05972 (2d Dept.,2021) the parties, who had two children together, were never married. For the summer of 2020, the mother and the children moved from New York to France, where the mother’s relatives resided. The father, who resided in Haiti, demanded that the mother send the children to New York for the month of July, where he had previously planned to visit with the children during that time. When the mother refused to do so, offering instead to pay for the father’s airfare to France to visit with the children, the father filed a petition for a writ of habeas corpus and custody of the parties’ children, arguing, that the mother had abducted the children to France. The Family Court dismissed the petition. The Appellate Division affirmed. It noted that a parental agreement executed by the parties in 2018 provided that the children would reside with the mother, and specifically contemplated the mother’s place of residence to be either in the United States or Europe, depending upon her place of employment. Thus, the father could not establish that he was unaware of the potentiality of the children’s move to Europe, as the parties’ agreement specifically provided for such a potentiality. As there was no other custody order in place, and the father had no greater right to the custody of the children than the mother, the children were not being illegally detained by the mother, and the father could not establish a right to habeas corpus relief (see Matter of Kiara B. v. Omar R., 147 A.D.3d 476, 46 N.Y.S.3d 417).
 
 
Improper to impute income to the father as the sole shareholder of a subchapter S corporation where Court utilized the gross receipts of the corporation to calculate the additional income, without accounting for returns and allowances or the cost of goods sold.
In Matter of Ho v Tsesmetzis, --- N.Y.S.3d ----, 2021 WL 5099025, 2021 N.Y. Slip Op. 05968 (2d Dept.,2021) the mother filed a child support petition pursuant to the Uniform Interstate Family Support Act. After a hearing, the Support Magistrate imputed income to the father from a subchapter S corporation of which he was the sole shareholder and granted the mother’s petition. The Appellate Division reversed and remitted for a new hearing. It observed that in the exercise of its considerable discretion, the court may impute income to a party based on the party’s past income or demonstrated future potential earnings .However, the court must provide a clear record of the source of the imputed income, the reasons for such imputation, and the resultant calculations. A determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. While the Support Magistrate properly determined that additional income should be imputed to the father as the sole shareholder of the subchapter S corporation the amount imputed was not supported by the record, as the Support Magistrate improperly utilized the gross receipts of the corporation to calculate the additional income to impute to the father, without accounting for the corporation’s returns and allowances or the cost of goods sold. The Support Magistrate should have used the corporation’s gross profits for its calculation of additional income to be imputed.

Supreme Court
Grandparent visitation was denied as not in theb est interest of the child where the  facts proved that the level of animosity between the grandparents and parents was stratospheric. 
In D.A.D. & P.C.D., v. D.A.S. & A.M.S., 2021 WL 5184295 (Table), 2021 N.Y. Slip Op. 51043(U) (Supreme Court, 2021) Supreme Court denied a  a petition by grandparents for visitation with their granddaughters. It found that under Wilson v. McGlinchey, 2 NY3d 375 (2004), “best interests” could not be established. The principle that emerged from the Court of Appeals decision was undeniable: “worsening relations between the litigants” when combined with “strenuous objections by the parents” precludes grandparent visitation because the child’s best interests can only be advanced “by shielding the child from the animosity and dysfunction between the parent and grandparents.” The Court of Appeals refined the test for grandparent visitation in E.S. v. P.D., 8 NY3d 150 (2007) in which the Court told trial courts that they should examine, as a factor, “the reasonableness” of a parent’s objection to grandparent access. In applying these tests, whether the denial of visitation was “reasonable” or whether the denial was based on elevated animosity that would preclude a finding that visitation was in the “best interests” of the grandchildren, the New York courts have examined a variety of factors. Here, the undisputed facts proved, beyond any reasonable criteria, that the level of animosity would never permit grandparent visitation. The level of animosity between the grandparents and parents in this instance was stratospheric and swamped any other factor in evaluating this petition. Under the Court of Appeals reasoning in Wilson v. McGlinchey and the associated case law, the petition could not be justified. 

       
Supreme Court held that under the doctrine of comity  a duly executed unacknowledged prenuptial agreement executed in a foreign nation in accordance with that nation’s laws was  valid and enforceable in New York. 
In Oleiwi v Shlahi, --- N.Y.S.3d ----, 2021 WL 5184166, 2021 N.Y. Slip Op. 21301(Sup Ct., 2021) the parties were married in Iraq and signed a Mahr which mandates certain payments from the husband to his wife at the time of marriage and thereafter, if a divorce occurs. The mahr was executed in accordance with the marriage laws of Iraq. After the husband commenced a divorce action in New York, the wife sought  to enforce the mahr and the husband argued that was not acknowledged in accordance with New York law and unenforceable. The Court observed that a mahr is a marriage agreement in accordance with Islamic law where the husband pledges to pay the wife a “deferred dowry” in the event of a divorce. Khan v. Hasan, 201 NY Misc Lexis 4673 (Sup. Ct. Nassau Cty 2021)  suggested that if the mahr were executed in New York but not properly acknowledged, then it is unenforceable in a matrimonial action.. Here the mahr was executed in Iraq and, in the Court’s view, the ruling in Khan v. Hasan applied only to mahrs executed in New York.  The Court observed that DRL §236(B)(3) provides: An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. The mahr in this case was signed by a witness and marked by the husband and wife and did not, on its face, satisfy the requirements of DRL §236(B)(3). See Matisoff v. Dobi, 90 NY2d 127 (1997); Galetta v. Galetta, 21 NY3d 186 (2013). The  Court found that the mahr was executed in Iraq and there was no dispute that the document was authentic and would be enforced in Iraq. New York has long held that comity should be extended to uphold the validity of foreign nuptial matters unless recognition of the judgment would do violence to a strong public policy of New York. Supreme Court held that under the doctrine of comity  a duly executed prenuptial agreement executed in a foreign nation in accordance with that nation’s laws will be found to be valid and enforceable in New York. The wife’s motion for a judgment declaring the mahr enforceable against the husband was granted.

Appellate Division, Third Department
An appeal from a custody award was rendered moot and dismissed where  neither party presently resided in New York. Under Domestic Relations Law 76a [1][b] the courts of this state were divested of jurisdiction and could not make a determination that would directly affect any interest or right of the parties. 
In Matter of Richard Y v Victoria Z.,     N.Y.S.3d     , 2021 WL 4994146, 2021 N.Y. Slip Op. 05899 (3d Dept.,2021) Family Court granted the father sole legal and physical custody of the children, affording the mother supervised parenting time to be exercised in New York. The mother appealed. Although not raised by the parties or the attorneys for the children, the Appellate Division dismissed the appeal as moot. Where a court in this state has made a custody determination, it retains exclusive, continuing jurisdiction over the determination until ... a court of this state or a court of another state determines that the child, the childs parents, and any person acting as a parent do not presently reside in this state (Domestic Relations Law 76a [1][b]). Here, the mother continued to reside in New Mexico and, since entry of Family Courts August 2019 custody order, the father relocated with the children to Florida where the Circuit Court for the Sixth Judicial Circuit in Pinellas County, Florida determined that Florida is the children’s home state for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law art 5A), and the parties both made appearances, with counsel, in that court with respect to their competing petitions seeking modification of the extant custody order. As neither party presently resided in New York, the courts of this state were divested of jurisdiction and cannot now make a determination ... that would directly affect any interest or right of the parties. This appeal was rendered moot and, was dismissed.
 
Parties cannot be permitted to assert positions in legal proceedings that are contrary to declarations made under the penalty of perjury on income tax returns. By claiming lottery winnings as income on their joint tax returns, the parties represented that such winnings were not a gift.
In Hughes v Hughes, --- N.Y.S.3d ----, 2021 WL 4896914, 2021 N.Y. Slip Op. 05765 (3d Dept.,2021) the parties were married in 1991. In 2018, the husband filed for divorce. Following a nonjury trial, Supreme Court determined, among other things, that money received by the wife after her mother purchased a winning lottery ticket was marital property, the marital residence and a vacation home were marital property that should be sold and divided 45% to the husband and 55% to the wife, and the husband was not required to pay the wife any spousal maintenance. 
The Appellate Division affirmed. It rejected the wife’s argument that the lottery winnings that her mother shared with her were not marital property because they were a gift. Whether a particular asset is marital or separate property is a question of law that a trial court must initially address to ascertain the marital estate. Property acquired during marriage is presumed to be marital unless the presumption is rebutted by the party asserting the separate property claim. It was undisputed that the wife’s mother purchased a scratch-off lottery ticket that won a grand prize of $7.5 million. Documentary evidence and testimony credited by Supreme Court established that the mother shared her winnings with her five children, with each of the six individuals receiving an equal pretax share of $1.25 million. State Gaming Commission documents showed that all six were considered winners, a giant check for publicity purposes listed all six names as winners, all six appeared at a public event at which the giant check was presented to them, each received a separate certificate of payment, an IRS form W–2G was issued by the Gaming Commission to each winner indicating that $1.25 million in gambling winnings was paid and the amount of taxes withheld, and equal direct deposit payments of the after-tax amount were issued to all six winners simultaneously. The wife’s mother did not file any gift tax returns related to the lottery winnings received by her children. The husband and the wife claimed the $1.25 million as income on their 2014 joint federal and state income tax returns, specifically denoting that it was gambling winnings. The Appellate Division pointed out that the Internal Revenue Code specifies that, for income tax purposes, “[g]ross income does not include the value of property acquired by gift” (26 USC § 102[a]). Courts “cannot, as a matter of policy, permit parties to assert positions in legal proceedings that are contrary to declarations made under the penalty of perjury on income tax returns” (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422, 881 N.Y.S.2d 369 [2009). By claiming the lottery winnings as income on their joint tax returns, the husband and the wife necessarily represented that such winnings were not a gift. Therefore, Supreme Court properly determined that the lottery winnings were not a gift to the wife, so they were not her separate property but were marital property subject to equitable distribution.
 
         The wife testified that she has been employed in the same position for 10 years. She testified that she worked full time for the first seven years and is able to work full time now, but starting in 2016 she chose to work only 20 to 24 hours per week. Under the circumstances, including that the wife failed to provide copies of her recent pay stubs to verify her pay rate, Supreme Court reasonably imputed income to her in an amount that was slightly less than double her part-time annual income. Using that imputed income when applying the statutory formula, the court properly calculated the guideline amount of postdivorce maintenance to be zero dollars (see Domestic Relations Law § 236[B][6][c][2]). The court did not abuse its discretion in declining to award maintenance to the wife.
Supreme Court properly precluded report and testimony of tax expert on tax implications of maintenance award where husband failed to file  written report in a timely fashion, waiting until a few days before trial and the wife was prejudiced
 
In Headwell v Headwell, --- N.Y.S.3d ----, 2021 WL 4897585, 2021 N.Y. Slip Op. 05752 (3d Dept.,2021) the Plaintiff ( wife) and defendant ( husband) were married in 1994 and had three children (born in 1995, 2000 and 2002). The wife commenced this divorce action in 2018. The parties placed a stipulation on the record that resolved the issues of grounds, child custody and equitable distribution. Supreme Court awarded the wife maintenance of $2800 a month for nine years and child support. Supreme Court further directed the husband to maintain health insurance for the children until they reached the age of 21 or, if in college, until graduation. 
The Child support award was vacated and remitted. Supreme Court failed to articulate the factors it considered in electing not to include income over the statutory cap ... in its final child support award,” and it was required to do so. It also erred in directing the husband to maintain health insurance for the parties’ children until they graduated from college, even if they graduated after they reached the age of 21 and his child support obligation otherwise terminated..
  
The Appellate Division rejected the husband’s contention that Supreme Court abused its discretion in precluding the report and testimony of his expert on the implications that recent enactments would have on the tax treatment of that maintenance award. The husband failed to file the expert’s written report in a timely fashion, waiting until a few days before trial (see 22 NYCRR 202.16[g][2]). The wife was prejudiced by that belated disclosure, as she was deprived of the opportunity to retain her own expert to review the report and request that the husband, who was in a far superior financial position, pay for that review. Supreme Court properly granted the wife’s application to preclude the report and potential testimony as untimely, further indicating that it saw no need for expert proof on a legal issue that it was capable of understanding without assistance. Supreme Court has “broad discretion in controlling discovery and disclosure,” including the power to preclude the use of a belatedly filed expert report where the delay was willful or caused prejudice to the opposing party, and the foregoing satisfied the court that there was no abuse of that discretion here (CPLR 3101[d][1][I]; 22 NYCRR 202.16[g][2]. 
Supreme Court found that the husband would earn at least $300,000 a year . Supreme Court imputed annual income to the wife of $58,800 to reflect the amount that she would be able to earn if she began working full time at her longstanding part-time job, a reasonable expectation given that her role as the primary caregiver for the parties’ children was easing as their youngest child neared adulthood .Having set forth a basis for imputation that was supported by the record and then articulating how the statutory factors justified an amount of maintenance that was an upward adjustment from the guideline obligation for a period within the guideline range, there was no abuse of discretion in its maintenance award.
In a footnote the Court pointed out that Supreme Court remains obliged to make an award of postdivorce maintenance “upon application by a party,” continuing the longstanding rule that the award becomes effective upon the initial request for maintenance (Domestic Relations Law § 236[B][6][a], as amended by L 2015, ch 269, § 4). The nine-year period accordingly began to run, by operation of law, on the date that the wife commenced this action and first requested maintenance in her summons and complaint.
The determination as to whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court . Although an AFC should not have a particular position or decision in mind at the outset of the case before gathering evidence, after an appropriate inquiry, it is entirely appropriate. 
 
In  Matter of Amanda YY. ,v. Faisal ZZ.,  --- N.Y.S.3d ----, 2021 WL 4897205, 2021 N.Y. Slip Op. 05750 (3d Dept.,2021) a custody case, the Appellate Division noted that pursuant to 22 NYCRR 217.1(a), Family Court must appoint an interpreter for “an interested parent ... of a minor party” if the court determines that the parent “is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings.” “The determination as to whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive an individual of his or her constitutional rights. The father did not request an interpreter. He testified that, although his native language is Urdu, he had lived in the United States for 20 years, had passed the citizenship test and was awaiting the oath ceremony, his children speak only English, he single-handedly ran his own restaurant for approximately 10 years and he understood 98% of the English spoken in the courtroom, including the questions asked by both his counsel and the mother’s counsel. He stated that he would “speak up” if he could not understand what was going on at the hearing, and a few times he indicated that he did not understand, resulting in questions being reframed. Under the circumstances, Family Court did not abuse its discretion by failing to sua sponte appoint an English language interpreter.
The Appellate Division also held that although an AFC should not have a particular position or decision in mind at the outset of the case before the gathering of evidence, after an appropriate inquiry, it is entirely appropriate, indeed expected, that an AFC form an opinion. As it is the role of the AFC to advocate for the children, taking a position contrary to one of the parents is not an indication of bias. The AFC had strong opinions from the outset of these proceedings arising from his role and service as AFC for the father’s older children in prior custody proceedings. It was not inappropriate for the AFC to form opinions from evidence of the father’s parenting style and abilities that he gleaned from those prior proceedings.

Absence of proper service of a motion in accordance with CPLR 2103(b) deprives the court of jurisdiction to entertain the motion
In Matter of Regina R v Frederick S, --- N.Y.S.3d ----, 2021 WL 4897280, 2021 N.Y. Slip Op. 05749  (3d Dept.,2021) the Appellate Division affirmed an order which  denied the father’s motion to vacate his default in this custody proceeding. It found that the father failed to comply with the service requirements of CPLR 2103. CPLR 2103(b) provides that, “[e]xcept where otherwise prescribed by law or order of court, papers to be served upon a party in a pending [proceeding] shall be served upon the party’s attorney.” The father’s motion to which was filed by the father’s attorney, was served only on the mother herself and not her attorney, in contravention to CPLR 2103(b). Nor was the attorney for the child served with the motion. Absence of proper service of a motion deprives the court of jurisdiction to entertain the motion. The father’s failure to properly serve the mother’s attorney and the attorney for the child deprived Family Court of jurisdiction to entertain the motion.

Where a party seeks modification of custody an evidentiary hearing should be conducted unless the party fails to make a sufficient evidentiary showing to warrant a hearing, or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests.
In  Matter of Sarah OO., v. Charles OO,  2021 WL 4897582 (3d Dept.,2021) the Appellate Division restated the rule that the threshold inquiry in any custody modification proceeding is whether there has been a change in circumstances since entry of the prior custody order that, if established, warrants a review of the issue of custody to ensure the continued best interests of the child. While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, an evidentiary hearing is generally necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests. In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner.
 
       
It was error in the context of a motion for violation of an order of supervision for Family Court to find that respondents were in “technical” compliance with the order but were nonetheless in violation of the order.
In  Matter of Nicholas L,. --- N.Y.S.3d ----, 2021 WL 4896912, 2021 N.Y. Slip Op. 05746 (3d Dept.,2021) the Family Court found the children to be neglected, placed them in foster care and ordered respondents to comply with the terms and conditions of the order of supervision and the orders of protection that were made a part of the January 2018 order. In June 2018 after a hearing, Family Court found that respondents violated the order of supervision and the orders of protection and that good cause existed to extend the order of supervision and continue the children’s placement. Family Court found that even though respondents were in “technical” compliance with the order of supervision, they willfully violated the order on the theory that “[p]arents are expected to actually gain insight and modify their behaviors to ensure compliance with a [c]ourt’s order of supervision” and respondents “have failed to acknowledge the trauma their actions have caused the children,” “have failed to comprehend the risks associated with maintaining contact with [the partner]” and have “openly continu[ed] a relationship with a person [who] has been [c]ourt ordered to have no contact with their children.” Family Court found that “compliance with an order of supervision pursuant to Family Ct Act §§ 1052 [and] 1055 both require more than mere participation in services allowing a parent to simply check off the term as done, i.e., technical compliance,” and that respondents lacked insight into the reasons why the terms and conditions were ordered. The Appellate Division held that it was error in the context of a violation motion for Family Court to find that respondents were in “technical” compliance with the order of supervision but were nonetheless in violation of said order. The quantum of proof required to establish a willful violation of a court order pursuant to Family Ct Act § 1072 is clear and convincing evidence, which was not established here. Family Court’s determination that respondents willfully violated the order of supervision was an abuse of discretion.
Increase in mother’s income by more than 15% entitled father to modification of the parties’ respective basic child support obligations, irrespective of whether any decrease in the father’s income was an apparent result of his own voluntary actions 
In Matter of Castelli, v Maiuri-Castelli, --- N.Y.S.3d ----, 2021 WL 4763261, 2021 N.Y. Slip Op. 05558(2d Dept.,2021) the judgment of divorce entered in 2017, directed the father to pay basic child support to the mother of $768.59 per week, as well as 100% of the children’s health insurance premiums, unreimbursed medical and dental expenses, child care, and life insurance premiums. In 2019, the father’s weekly basic child support obligation was increased to $854 pursuant to a cost of living adjustment. The father filed a petition in, 2020, for a downward modification of his child support obligation, alleging that the mother’s income had increased by more than 15% since entry of the judgment of divorce. The father also requested a commensurate decrease in his pro rata share of the “add-ons”. At a hearing the father submitted evidence that the parties’ respective existing child support obligations were calculated based upon a gross income of $0 for the mother, who was unemployed at the time of entry of the judgment of divorce, and a gross income of $175,269.25 for the father, who was employed as an attorney. He also submitted evidence that the mother had obtained employment and that, in 2019, she earned a gross salary of $44,366. The father testified that he had been suspended from the practice of law on July 1, 2015, prior to entry of the judgment of divorce, and introduced evidence that, in 2019, he earned a gross salary of $58,038.38. The Support Magistrate granted the father’s petition to the extent of directing that the father would be responsible for 77% and the mother responsible for 23% of the children’s health insurance premiums, unreimbursed medical and dental expenses, child care, and life insurance premiums, and otherwise denied the petition. The Support Magistrate acknowledged in his findings of fact that the mother’s income had “increased substantially” since entry of the judgment of divorce, but denied the father’s petition for a  downward modification of his basic child support obligation, explaining that “[b]ecause the [father’s] loss of income is an apparent result of his own voluntary actions, it would be impermissible, under current case law, to grant his request to reduce his ongoing child support obligation.”
The Appellate Division remitted for a new determination. It held that the Family Court should have granted the father’s objections . His evidence demonstrated that the mother’s income had increased by more than 15% since entry of the judgment of divorce, which warranted a new determination of the parties’ respective child support obligations (see Family Ct Act § 451[3][b][I], [ii]). Contrary to the finding of the Support Magistrate, the increase in the mother’s income entitled the father to new determination of the parties’ respective basic child support obligations, irrespective of whether any decrease in the father’s income could also properly be considered (see Matter of Vetrano v. Vetrano, 177 A.D.3d at 892, 115 N.Y.S.3d 104).
Biological parent whose parental rights have been terminated is not entitled to seek custody of the child, including where parental rights have been terminated voluntarily
In Mehmeti v Dautaj, --- N.Y.S.3d ----, 2021 WL 4764204 (Mem), 2021 N.Y. Slip Op. 05569 (2d Dept.,2021) following the petitioner’s incarceration she voluntarily surrendered her parental rights and the children were adopted by the respondents. After she  was released from prison she commenced a proceeding for custody of the children. Family Court dismissed the petition for lack of standing. The Appellate Division affirmed. It held that a  biological parent whose parental rights have been terminated is not entitled to seek custody of the child, including where parental rights have been terminated voluntarily. At the time the petitioner commenced this proceeding, she was not a person entitled to seek custody of the children
Error for Court to grant sua sponte relief which is “dramatically unlike” the relief requested by the attorney 
 
In Matter of M.T. v. DeSabato, --- N.Y.S.3d ----, 2021 WL 4763181, 2021 N.Y. Slip Op. 05574 (2d Dept.,2021) a custody modification proceeding the child. After the father petitions were dismissed and the  mother’s petition was settled the court stated that it understood that the petition filed by attorney for the child sought temporary relief, all counsel declined the opportunity to make additional arguments, and the court marked the petition “submitted.” Thereafter, the court determined the petition filed by the attorney for the child by awarding sole legal and residential custody of the child to the mother and supervised therapeutic parental access to the father. The mother’s second modification petition, seeking sole custody of the child, was subsequently withdrawn. 
The Appellate Division reversed. It held that the relief granted by the Family Court was “dramatically unlike” the relief requested by the attorney for the child. While the attorney for the child requested an award of temporary custody to the mother and a temporary suspension of the father’s parental access, the court issued an order that “superceded [sic]” the prior order of custody and any orders that incorporated the prior order of custody, and awarded sole legal and physical custody of the child to the mother and supervised therapeutic parental access to the father. The petition filed by the attorney for the child sought temporary relief, and as such, the father was not on notice that the court would issue a final custody determination on this petition. The court erred in, sua sponte, granting such relief.
At dispositional stage of proceeding to terminate parental rights, there is no presumption that  interests of child will be served best by a return to the biological parent
  In Matter of Lee D., --- N.Y.S.3d ----, 2021 WL 4763138, 2021 N.Y. Slip Op. 05559 (2d Dept., 2021) the Appellate Division held that at the dispositional stage of a proceeding to terminate parental rights, the court focuses solely on the best interests of the child” (Family Ct Act § 631) The factors to be considered in making the determination include the parent or caretaker’s capacity to properly supervise the child, based on current information and the potential threat of future abuse and neglect. At disposition, there is no presumption that those interests will be served best by a return to the biological parent. 

Proper to calculate child support based on parents income as of the completion of the hearing, rather than claimed prior earnings, where based on credibility determinations and supported by the record 
In Matter of Aslam v Younas, --- N.Y.S.3d ----, 2021 WL 4763155, 2021 N.Y. Slip Op. 05555 (2d Dept.,2021) the Appellate Division held that, the Support Magistrate providently exercised his discretion in calculating the father’s child support obligation based upon the father’s income as of the completion of the hearing. The Support Magistrate’s determination to consider the father’s income as of the completion of the hearing, rather than his claimed prior earnings, was based on credibility determinations and supported by the record, and thus, should not be disturbed.

October 1, 2021

Appellate Division, First Department

       

International Travel with Children to Non-Hague Convention Country not permitted in absence of showing it was in best interests of young children.
In Matter of Naamye Nyarko B., v. Goodwin Edwin C., --- N.Y.S.3d ----, 2021 WL 4733960 (Mem)  (1st Dept., 2021) the Appellate Division reversed an order which permitted respondent father to travel with the subject children internationally on 60 days upon written notice to petitioner mother. It held that Family Court erred in granting the father’s request to modify the custody and visitation order to permit him to travel internationally with the children, particularly to Ghana, which is not a party to the Hague Convention on Civil Aspects of International Child Abduction, as there was no sound and substantial basis in the record to support a finding that such unrestricted international travel was in the best interests of the young children.
Appellate Division, Second Department
     
Where a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court.
In Matter of Schoepfer v Colon, --- N.Y.S.3d ----, 2021 WL 4561106 (Mem), 2021 N.Y. Slip Op. 05344 (2d Dept.,2021) the Appellate Division held that where a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court. The criminal court has authority to determine whether its order of protection is subject to subsequent orders pertaining to custody and parental access, and can decline to amend an order of protection to so provide. Where  the temporary orders of protection that were entered in the criminal action did not state that they were subject to subsequent court orders pertaining to custody and parental access and had not been vacated or modified, an order of the Family Court awarding parental access would have countermanded the provisions of the temporary orders of protection. Therefore, no hearing was necessary to deny the mother’s motion, in effect, for supervised parental access with the children.

CSSA does not permit court to determine a party’s income for child support purposes by averaging a party’s earnings over several years. Court may impute income to a party when it is shown that the marital lifestyle was such that, there is a basis to conclude that the party’s actual income and financial resources were greater than what he or she reported.
In Koutsouras v Mitsos-Koutsouras, --- N.Y.S.3d ----, 2021 WL 4558397 (Mem), 2021 N.Y. Slip Op. 05328(2d Dept, 2021) the parties were married in 2009, and had two children born in 2013. In 2015, the plaintiff commenced the action for a divorce. The parties agreed that the Supreme Court would determine retroactive and prospective child support based upon their submissions. The court directed the plaintiff to pay the defendant $343.56 per week in child support. The Appellate Division reversed. It pointed out that the Child Support Standards Act does not permit the court to determine a party’s income for child support purposes by averaging a party’s earnings over several years. It noted that the court may impute income to a party based on the party’s employment history, future earning capacity, educational background, resources available to the party, including ‘money, goods, or services provided by relatives and friends or when it is shown that the marital lifestyle was such that, under the circumstances, there is a basis for the court to conclude that the party’s actual income and financial resources were greater than what he or she reported on his or her tax return.  It held that  Supreme Court improperly determined the parties’ income by averaging their reported earnings over the preceding four years. Furthermore, under the circumstances of this case, where the plaintiff was employed by his family and his tax returns showed substantial downward fluctuations in income, the court should have conducted an analysis as to whether to impute income to the plaintiff. The matter was remitted to the Supreme Court  for a hearing to determine the parties’ income for the purpose of calculating the plaintiff’s child support obligation, and a recalculation of that obligation.

Support Magistrate properly calculated father’s income from employment based upon his most recent tax return. Although Support Magistrate had discretion to consider the father’s recent pay increase, which took effect approximately one month before the hearing, it was not required to do so.
In Matter of Remsen v Remsen, --- N.Y.S.3d ----, 2021 WL 4561330, 2021 N.Y. Slip Op. 05342 (2d Dept.,2021) a child support proceeding the Appellate Division held that the Support Magistrate providently exercised its discretion in determining to impute annual income to the mother based upon her ability to work full time for minimum wage The record established that, although the mother had worked only part time during the course of the parties’ marriage, the mother had a college degree. She offered no evidence to support her assertions that she was unable to work full time because she was needed to care for her elderly parents and the parties’ younger child, and because of undisclosed health limitations. 
The Support Magistrate also providently exercised its discretion in determining to impute income to the mother for monthly housing costs paid by her brother-in-law. In imputing income to a party for the purpose of calculating support obligations under the CSSA, a court may consider, inter alia, money received from relatives or friends. Although such contributions may properly be excluded where the obligor party refuses to provide support during the pendency of the proceedings here, the father had consistently made voluntary support payments to the mother since the parties’ separation in 2015.
 
The Support Magistrate did not err in failing to impute income to the father on the ground that he lived in an uncle’s home with no obligation to pay rent. The evidence demonstrated that the father was living in his uncle’s home in exchange for having assisted the uncle with refinancing the home and acted as a cosigner for the new mortgage loan without taking an interest in the real property.
 
The Support Magistrate properly calculated the father’s income from employment based upon his most recent tax return (see Family Ct Act § 413[1][b][5][i]). While the Support Magistrate had the discretion to consider the father’s recent pay increase, which took effect approximately one month before the hearing, it was not required to do so.

Appellate Division, Third Department

       

Improper to rely on hearsay testimony in Fact Finding portion of Neglect proceeding where only competent, material and relevant evidence may be admitted
In the Matter of Aiden J. ,197 A.D.3d 798, 151 N.Y.S.3d 558, 2021 N.Y. Slip Op. 04637 (3d Dept.,2021) neglect proceedings against respondent stemming from allegations that he left the middle and youngest children in the mother’s care while knowing that the mother was highly intoxicated Family Court found, inter alia,  that respondent neglected the middle and youngest children. The Appellate Division reversed. It pointed out that at a hearing to establish neglect, “only competent, material and relevant evidence may be admitted” (Family Ct Act § 1046[b][iii]). The  record disclosed that at respondent’s hearing, which the mother was not a party to, petitioner’s caseworker testified as to what the mother had told her based upon their conversations. The caseworker stated that the mother told her that, while the middle and youngest children were with her, she had been drinking heavily, that the mother believed that she may have assaulted one of the children and that, after respondent took the children for a while, he came back to her with some vodka, which she drank. It held that Family Court improperly relied on this hearsay testimony – i.e., what the mother told the caseworker – in reaching its determination and the error in doing so was not harmless (compare Matter of Jack NN. [Sarah OO.], 173 A.D.3d 1499, 1503 [2019]).
 
Parent seeking modification of custody order who alleges change of circumstances in own petition waives contention that the other parent failed to establish a change of circumstances in support of his own petition 
In Matter of Fowler v Rothman, --- N.Y.S.3d ----, 2021 WL 4704210, 2021 N.Y. Slip Op. 05436 (4th Dept., 2021) a custody modification proceeding, the Appellate Division held that the mother waived her contention that the father failed to establish a change of circumstances warranting an inquiry into the best interests of the children inasmuch as she alleged in her own petition that there had been such a change in circumstances.
 
An agency generally does not need to establish diligent efforts when a court is determining whether to revoke a suspended judgment.  Lapses on the part of petitioner do not excuse the failure to comply with the terms of the suspended judgment.
In  Matter of Christina S., --- N.Y.S.3d ----, 2021 WL 4704056 (Mem), 2021 N.Y. Slip Op. 05430 (4th Dept., 2021) the Appellate Division affirmed an order that, inter alia, granted petitioner’s motion to revoke a suspended judgment that had been entered upon the father’s admission to permanently neglecting the child and freed the child for adoption. Although the father placed the blame for his failure to comply on lapses by petitioner agency and its supervisory obligations and its failure to consult with an expert, even lapses by an agency during a suspended judgment do not relieve a parent of his or her duty to comply with the terms of the suspended judgment. The father’s further contention regarding petitioner’s purported failure to establish that it exercised diligent efforts to encourage and strengthen his parental relationship with the child lacked merit. An agency generally does not need to establish diligent efforts when a court is determining whether to revoke a suspended judgment.  Any lapses on the part of petitioner do not excuse the failure to comply with the terms and conditions of the suspended judgment.

Supreme Court

In-person parental access by defendant denied as not in the child’s best interests, where he refused to be vaccinated against Covid-19
In C.B.,  v. D.B., Defendant, --- N.Y.S.3d ----, 2021 WL 4696606, 2021 N.Y. Slip Op. 21268 (Sup. Ct.,2021) the Court found that  in-person parental access by defendant was not in the child’s best interests, where he refused to be vaccinated against Covid-19, and there were exceptional circumstances that supported granting plaintiffs motion for temporary suspension of visitation in person. It found that requiring defendant and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing to be in the child’s best interests

Failure to specifically request equitable distribution is not a waiver of claim for equitable of marital property where pleading requests “such other and further relief.”
In N.O. v T.F. O, 2021 WL 4448980 (Sup. Ct., 2021) an action for a judgment of divorce, the answer filed by the husband demanded a judgment of divorce and “such other and further relief as to the Court may seem just and proper.” Supreme Court  rejected the wife’s claim that the failure to specifically request equitable distribution, particularly when he did request “such other and further relief,” constituted a waiver of the husband’s claim for equitable of marital property. Because this matter was a matrimonial matter, it seemed reasonable that “the other and further relief” requested would include all financial and other issues that arise in a divorce action, including equitable distribution and support. Schiller v. Weinstein, 45 Misc. 591 (Sup. Ct App. Term 1904)(nature of the relief asked in a decree must be such as could bring it within the meaning of “other and further relief,”). 
Numerous errors by Trial Court Require Remittal for New Determinations
In Kiani v Kiani, --- N.Y.S.3d ----, 2021 WL 4185717, 2021 N.Y. Slip Op. 04971 
--- N.Y.S.3d ----, 2021 WL 4185717, 2021 N.Y. Slip Op. 04971(2d Dept.,2021) the plaintiff and the defendant were married in Pakistan on October 29, 2006. They had two children of the marriage, one born in 2008 and the other in 2011. The parties separated in June 2012, and the plaintiff commenced the action for a divorce in 2014 . Following the trial, he court, inter alia, determined that the defendant was obligated to pay to the plaintiff $1,961.83 per month for child support and $14,250 per year for maintenance, determined that the plaintiff was entitled to $42,018.55 in attorney’s fees, a credit of $22,000 for payments already made to reduce a mortgage and an award of 50% of the defendant’s credit accounts and 401(k) accounts, and determined that the defendant was required to return the plaintiff’s jewelry or pay her $5,000. 
The Appellate Division held that  Supreme Court erred in calculating the defendant’s child support obligation based on testimony regarding his yearly income instead of his most recent tax return. “The Child Support Standards Act requires the court to establish the parties’ basic child support obligation as a function of the ‘gross (total) income’ that is, or should have been, reflected on the most recently filed income tax return (Family Ct Act § 413[1][b][5][I])”.
The amount and duration of a maintenance award are a matter within the sound discretion of [the] Supreme Court, and the award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered. The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance. Here, the court offered no explanation for its award of maintenance.
The Appellate Division further held that the Supreme Court improperly calculated the parties’ pro rata shares of the plaintiff’s attorney’s fees. The income imputed by the Supreme Court to the parties to determine their pro rata shares of the plaintiff’s attorney’s fees was not supported by the record.. It further held that  Supreme Court erred in valuing the plaintiff’s jewelry at $5,000, as no evidence existed in the record to support that valuation. 
Finally, the Supreme Court failed to explain which, if any, factors it considered in reaching its conclusion concerning equitable distribution of the defendant’s credit accounts and 401(k) accounts.
 
The Appellate Division modified the judgment of divorce and the matter was remitted to the Supreme Court for a new determination of the amount of the defendant’s child support obligation, a new determination, with explanation, as to the amount, if any, of the defendant’s maintenance obligation,  a new determination as to the amount, if any, to be awarded to the plaintiff for her attorney’s fees, a determination as to the value of the plaintiff’s jewelry and a new determination, with explanation, as to the equitable division of the defendant’s credit accounts and 401(k) accounts.

Agency must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination for custodial statements of juvenile to be admissible. Issue is determined upon an inquiry into the totality of the circumstances
  In Matter of Tyler L, 150 N.Y.S.3d 747 (2d Dept.,2021) the Presentment Agency filed a petition alleging that the appellant, who was then 15 years old, committed acts which, if committed by an adult, would have constituted crimes with respect to his 11–year–old sister. Upon arrest, the appellant was interviewed by law enforcement officials in the presence of his grandfather. During the 35–minute interview, which was videotaped, the appellant made certain incriminating statements. The appellant moved to suppress his statements to law enforcement officials. After a hearing, the Family Court denied the appellant’s motion. The Appellate Division held that Family Court properly denied the appellant’s motion to suppress his statements to law enforcement officials. The Presentment Agency must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination for custodial statements to be admissible (see People v. Cleverin, 140 A.D.3d 1080, 1081, 34 N.Y.S.3d 136). “Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation, including the defendant’s age, experience, education, background, and intelligence, and ... whether he [or she] has the capacity to understand the warnings given him [or her], the nature of his [or her] Fifth Amendment rights, and the consequences of waiving those rights”. Here, the videotape showed that the appellant and his grandfather were brought into an interview room of a police precinct, where Miranda warnings for juveniles were read and  written copies of the warnings were given to the appellant and his grandfather. The videotape also showed that, while the written Miranda form was never signed, both the appellant and his grandfather waived the appellant’s Miranda rights after the rights had been read. The videotape demonstrated that the Miranda warnings were read in a manner that was clear and deliberate, and that the appellant and his grandfather understood those rights and voluntarily waived them. The appellant’s expert stated that the appellant had a basic comprehension and understanding of Miranda rights at the time of his testing consistent with other 15–year–old adolescents of comparable abilities. The conclusion of the appellant’s expert that the appellant could not have made an intelligent, knowing, and voluntary waiver of his Miranda rights during police questioning was undermined by evidence of the appellant’s completion of a test that required answers to 189 written questions in 20 minutes. Thus, the Family Court’s determination that the appellant’s Miranda waiver was voluntary, knowing, and intelligent was supported by the evidence. The absence of a signed waiver form required no different result.


Appellate Division, Third Department
Where plaintiff spouse seeks an annulment based upon fraud in the inducement, the fraud must be proven by clear and convincing evidence. 
 
In Travis A v Vilma B.,  2021 WL 4200934 (3d Dept.,2021) the Plaintiff (husband), a United States citizen, and defendant ( wife), a citizen of the Philippines, met online in February 2018 and got engaged in June 2018, during the first of the husband’s two trips to the Philippines. In April 2019, the wife entered the United States on a K–1 (fiancée) visa and moved in with the husband. Several weeks later, on June 8, 2019, the parties were married. However, the marriage rapidly deteriorated, with the wife moving out of the marital home less than two weeks after the wedding. In July 2019, the husband commenced this action seeking an annulment based upon the wife’s alleged fraud in the inducement. The husband alleged that the wife married him “with the sole purpose of becoming a U.S. [c]itizen.” The wife denied the husband’s allegation of fraud in the inducement and asserting that the husband had perpetrated acts of domestic violence against her and that she “removed herself from the marital premises for her own safety.” Supreme Court found that the wife had fraudulently induced the husband to marry her to obtain citizenship and that the husband was entitled to an annulment. The Appellate Division reversed. It observed that where the plaintiff spouse seeks an annulment based upon fraud in the inducement, the fraud must be proven by clear and convincing evidence. The husband’s case of fraud in the inducement was premised upon his claim that the wife induced him to marry through false representations of love and affection for the sole purpose of obtaining an immigration benefit. The husband, however, failed to prove that claim at trial, as his proof fell far short of demonstrating a fraudulent premarital intent on the part of the wife. Supreme Court erred by not holding the husband to his burden of proof, relying too heavily upon the wife’s belated filing of a family offense petition in another county and taking a negative inference against the wife for purportedly exploring relief under the Violence Against Women Act. 

Appellate Division, Fourth Department
Unilateral Relocation nunc pro tunc permitted where mother alleged a  “continuous and relentless cycle of domestic violence” perpetrated by the father causing her to fear for her safety
In Matter of Robert C. E., v. Felicia,197 A.D.3d 100, 151 N.Y.S.3d 301, 2021 N.Y. Slip Op. 04306 (4th Dept.,2021) a prior order of custody and visitation awarded the mother sole custody of the child with visitation to the father. That order included a provision prohibiting either parent from permanently removing the child from Monroe County without the written consent of the other parent or a court order. Despite that provision, the mother unilaterally relocated to Arizona with the five-year-old child. Approximately one year later, the father discovered the mother’s whereabouts and commenced this proceeding by way of petition seeking custody of the child. The mother filed a cross petition seeking permission to relocate nunc pro tunc. She asserted that she relocated due to a “continuous and relentless cycle of domestic violence” perpetrated by the father. At a hearing on the petition and cross petition, the mother testified about instances of domestic violence perpetrated by the father. As a result of incidents of domestic violence causing her to fear for her safety the mother and her fiancĂ© decided to move cross-country in order to ensure her safety and that of the child. She chose a location in Arizona based on the quality of the schools, affordability, and relative closeness to family in California. She did not inform the father or request permission of the court out of fear of retaliation from the father. The father denied the allegations of domestic violence, . He did not have a job or a driver’s license. He lived with his brother in exchange for providing child care. He had never paid child support. If he were awarded custody of the child, he would rely on his brother to pay for and transport the child to private school. The trial court found the father’s testimony not to be credible. The mother, in contrast, “gave honest and truthful testimony,” particularly concerning instances of domestic violence perpetrated by the father in the child’s presence and threats made towards the mother. The child’s maternal grandmother, who corroborated portions of the mother’s testimony at the hearing, gave “exceptionally credible” testimony. The court found that the mother’s fear of the father “was not feigned or pre-textual,” and that her decision to relocate without informing him was not to deprive him of visitation, but to protect her own safety. Although the court stated that her conduct in doing so “cannot be condoned,” it denied the father’s petition for custody due to his own “fundamental unfitness,” granted the mother’s cross petition for permission to relocate with the child, and awarded visitation to the father in Monroe County. 
The Appellate Division affirmed. It held that although the unilateral removal of the child from the jurisdiction is a factor for the court’s consideration an award of custody must be based on the best interests of the child and not a desire to punish a recalcitrant parent. In determining the best interests of the child, the court is free to consider and give appropriate weight to all of the factors that may be relevant to the determination” (Matter of Tropea v. Tropea, 87 N.Y.2d 727). Courts place considerable weight on the effect of domestic violence on the child, particularly when a continuing pattern of domestic violence perpetrated by the child’s father  compels the mother to relocate out of legitimate fear for her own safety, or where the father minimized the past incidents of domestic violence. Where domestic violence is alleged in a petition for custody, the court must consider the effect of such domestic violence upon the best interests of the child. In making its determination, the court appropriately considered the fact that the mother unilaterally removed the child from the jurisdiction, determining that the mother did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence. Although the court did not countenance the mother’s decision to relocate without permission, it was the father’s violent conduct that prompted her move to Arizona in the first instance and triggered the resulting disruption of his relationship with his daughter. Furthermore, although the court did not expressly engage in the analysis required under Tropea, there was a sound and substantial basis in the record supporting the court’s determination that relocation would enhance the child[’s life] economically, emotionally, and educationally, and that the child’s relationship with the father could be preserved through a liberal parental access schedule including, but not limited to, frequent communication and extended summer and holiday visits.
Recent Legislation
Laws of 2021, Ch 509, §1 amended Domestic Relations Law §236 (B)(5)(d), effective October 25, 2021
Laws of 2021, Ch 509, §1 amended Domestic Relations Law §236 (B)(5)(d), effective October 25, 2021 to renumber subparagraph 14 as subparagraph 15, and add a new subparagraph 14 is added to require that courts consider the best interest of companion animals when awarding possession of the animal during divorce or separation proceedings. 
This provision applies where it is determined that the companion animal is marital property. 
The rationale for the amendment appears in the sponsors memorandum in support of the legislation. It states that custody decisions involving pets in divorce proceedings are not uncommon. Courts typically deal with pets in divorce proceedings as they do with personal property such as cars and furniture. For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce. It observed that in "2017, Alaska became the first state in the country to require courts to consider the welfare of household pets when determining custody of such pets in divorce proceedings. It is now time for New York to pass similar legislation." It appears that the sponsors believed that if it is good for Alaska, it is good for New York.  
While companion animals have come to be considered “a special category of property  “and the Appellate Division has pointed out in dicta that “the courts have recognized the “cherished status” accorded to pets in our society”   under New York law dogs and cats are still considered personal property. Dogs  and cats are chattels.    as are other animals. That is why Courts “deal with pets in divorce proceedings as they do with personal property.” The effect of Domestic Relations Law §236 (B)(5)(d) (14) is to require the courts to take into consideration the best interests of personal property when awarding its possession to either spouse. That appears to be a task that courts are not equipped to handle. Following Domestic Relations Law §236 (B)(5)(d) (14) to its logical or illogical conclusion, it appears that the parties to a matrimonial action involving a companion animal may be required to provide pre-trial disclosure under CPLR 3101(d)(i) of the identity of pet experts and the subject matter on which each expert is expected to testify and permit the parties to call experts at trial to testify as to the best interests of their dog or cat.  
Domestic Relations Law §236 (B)(5)(d) (14) requires courts to consider the “best interest of companion animals” when awarding possession of the animal during divorce or separation proceedings. The best interest analysis in dog custody case has been rejected for good reasons by some lower courts. The Supreme Court in New York county has said that “…the wholesale application of the practices and principles associated with child custody cases to dog custody cases is unworkable and unwarranted. …[I]t is impossible to truly determine what is in a dog's best interests. …, Too, there is no proven or practical means of gauging a dog's happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag. The subjective factors that are key to a best interests analysis in child custody…are, for the most part, unascertainable when the subject is an animal rather than a human…[I]t is highly questionable whether significant resources should be expended and substantial time spent on such endeavors. It is no secret that our courts are overwhelmed with child custody cases, cases in which the happiness and welfare of our most precious commodity, children, are at stake. To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children. Such a drain of judicial resources is unthinkable.   
Domestic Relations Law §236 (B)(5)(d)(14) and (15), effective October 25, 2021 read as follows:
     (14) whether either party has committed an act  or  acts  of  domestic
   violence,  as  described  in  subdivision  one  of  section four hundred
   fifty-nine-a of the social services law, against the other party and the
   nature, extent, duration and impact of such act or acts; 
     (15) in awarding the possession of a companion animal, the court shall
   consider the best interest of such animal. "Companion animal", as  used
   in this subparagraph, shall have the same meaning as in subdivision five
   of section three hundred fifty of the agriculture and markets law; and
     (16)  any other factor which the court shall expressly find to be just
   and proper.
Laws of 2021, Ch 437, §1 amended the Domestic Relations Law to add Domestic Relations Law § 240-d.
Laws of 2021, Ch 437, §1 amended the Domestic Relations Law to add Domestic Relations Law § 240-d. Support orders for certain adult dependents, effective  October 8, 2021 to provide that  a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse and certain other professionals.
The purpose of this  legislation is to aid families and dependent adults who have surpassed the age of majority for child support, but have developmental disabilities that necessitate a living allowance. This award amount would be at the discretion of the Court, where the individual has a diagnosis of a developmental disability, as defined in the Mental Hygiene Law, resides with the person seeking the support, and is principally dependent on the  person for maintenance. (See 2021 NY Legis Memo 437)
 
 
Domestic Relations Law  § 240-d provides:
1. Notwithstanding any other law, a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined in subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under title eight of the education law, and acting within their lawful scope of practice.
 
2. Upon petition brought by such person, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one-b of section two hundred forty of this article. In addition to the provisions of subdivision one-b of section two hundred forty of this article, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.
 
3. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such adult dependents, as well as to enforce or modify orders or judgments.
4. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “exception trust” as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause (iii) of subparagraph two of paragraph (b) of subdivision two of section three hundred sixty-six of the social services law, and section 7-1.12 of the estates, powers and trusts law if such direction would assist in maximizing assistance to the child.
5. Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities.  (Added L.2021, c. 437, § 1, eff. Oct. 8, 2021.)
 
Laws of 2021, Ch 437 amended the Family Court Act, to add Family Court Act § 413-b effective October 8, 2021
Laws of 2021, Ch 437 amended the Family Court Act, to add Family Court Act § 413-b effective October 8, 2021 to provide that  a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse and certain other professionals
Family Court Act § 413-b provides:
§ 413-b. Support orders for certain adult dependents
1. Notwithstanding any other law, a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under title eight of the education law, and acting within their lawful scope of practice.
 2. Upon petition brought by the parent or kinship caregiver of an adult child with a disability, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one of section four hundred thirteen of this part. In addition to the provisions of subdivision one of section four hundred thirteen of this part, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the child support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.
 3. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such dependents, as well as to enforce or modify orders or judgments.
 4. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “exception trust” as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause (iii) of subparagraph two of paragraph (b) of subdivision two of section three hundred sixty-six of the social services law, and section 7-1.12 of the estates, powers and trusts law if such direction would assist in maximizing assistance to the child.
 5. Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities. (Added L.2021, c. 437, § 2, eff. Oct. 8, 2021.)
Laws of 2021, Ch 442 enacted the "Blind  persons right to parent act" which amended the Domestic Relations Law and Family Court Act
Laws of 2021, Ch 442 enacted the "Blind  persons right to parent act" which 
amended the Domestic Relations Law and Family Court Act to prohibit  the making of decisions concerning guardianship, custody or visitation or adoption petitions solely on the basis of a parent's, guardian's or custodian's blindness; prohibit the department of social services from denying, deciding or opposing a petition or request for guardianship, custody or visitation solely because the petitioner is blind and prohibit the department of social services from taking actions solely because a parent, custodian or guardian is blind. Became a law October 8, 2021. Effective 90 days after it became a law.
    
 Laws of 2021, Ch 442, § 3 amended the domestic relations law by  adding  a  new section. Domestic Relations Law § 75-m to read as follows:
    
 §  75-m.  Consideration  of  blindness during guardianship, custody or
   visitation proceedings.  1. The court may not deny or decide a  petition
   for  guardianship,  custody  or  visitation solely on the basis that the
   petitioner is blind. The blindness of the petitioner shall be considered
   relevant only to the extent that the court finds, based on  evidence  in
   the  record,  that the blindness affects the best interests of the child
   whose guardianship, custody or visitation is the subject  of  the  peti-
   tion.
     2. As used in this section, "blind" or "blindness" means:
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.
   
  Laws of 2021, Ch 442, § 4 amended the domestic relations law by  adding  a  new section. Domestic Relations Law § 111-d to read as follows:
     § 111-d. Consideration of blindness during  adoption  proceedings.  1.
   The  court  may not deny or decide a petition for adoption solely on the
   basis that the petitioner is blind.  The  blindness  of  the  petitioner
   shall  be  considered  relevant only to the extent that the court finds,
   based on evidence in the record, that the  blindness  affects  the  best
   interests of the child whose adoption is the subject of the petition.
     2. As used in this section, "blind" or "blindness" means:                                                               
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.
 
    Laws of 2021, Ch 442, §  5 amended the  family court act by adding a new section, Family Court Act §643 to  read as follows:
     § 643. Consideration of blindness during adoption proceedings. 1.  The
   court may not deny or decide a petition for adoption solely on the basis
   that the petitioner is blind. The blindness of the petitioner  shall  be
   considered  relevant  only  to the extent that the court finds, based on
   evidence in the record, that the blindness affects the best interests of
   the child whose adoption is the subject of the petition.
     2. As used in this section, "blind" or "blindness" means:
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.
 
    Laws of 2021, Ch 442, § 6 amended the family court act by adding a new  section, Family Court Act §  658  to    read as follows:
   
  §  658.  Consideration  of  blindness  during guardianship, custody or
   visitation proceedings. 1. The court may not deny or decide  a  petition
   for  custody  or  visitation  under this part or guardianship under part
   four of this article solely on the basis that the petitioner  is  blind.
   The blindness of the petitioner shall be considered relevant only to the
   extent  that  the court finds, based on evidence in the record, that the
   blindness affects the best interests of the  child  whose  guardianship,
   custody or visitation is the subject of the petition.
     2. As used in this section, "blind" or "blindness" means:
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.
   
  Laws of 2021, Ch 442, § 7 amended the social services law by adding a new section, social services law §393 to   read as follows:
  
   §  393.  Consideration  of  blindness  during guardianship, custody or
   adoption proceedings. 1. The department may not deny, decide or oppose a
   petition or request for guardianship, custody or visitation  under  this
   article  solely  on  the  basis that the petitioner, parent, guardian or
   custodian is blind. The blindness of the petitioner, parent, guardian or
   custodian shall be considered relevant  only  to  the  extent  that  the
   blindness  affects  the  best interests of the child whose guardianship,
   custody or visitation is the subject of the petition.
     2. The department shall not seek custody or guardianship  of  a  child
   solely  because  the child's parent, guardian or custodian is blind. The
   blindness of the parent, guardian or custodian shall be considered rele-
   vant only to the extent that the blindness affects the best interests of
   the child whose guardianship, custody or visitation is  the  subject  of
   the petition.
     3. As used in this section, "blind" or "blindness" means:
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.
 
Laws of 2021, Ch 456, amended Family Court Act§ 312.2 on October 8, 2021,  effective 60 days after that date, to add subdivision (3)
  Laws of 2021, Ch 456, amended Family Court Act§ 312.2 on October 8, 2021,  effective 60 days after that date, to added subdivision (3), in relation to execution of      warrants in juvenile delinquency cases when family courts are closed.
  The "raise the age" legislation enacted in 2017 requires accused juvenile delinquents to be brought before available accessible magistrates, designated by each Appellate Division, for pre-petition hearings during evening, weekend and holiday hours when Family Courts are not in session. See Family Court Act §§ 305.2(4), 307.3(4) L.  2017, c. 59, part www, §§ 63, 65. This legislation amends Family Court Act § 312.2 to include similar provisions for juvenile delinquents returned on warrants when Family Courts are not in session. The legislation requires juveniles in such cases to be brought before "the most accessible magistrate, if any, designated by the appellate division." The magistrates would determine whether the juveniles would be released or detained and would then set a date for the juvenile to appear in Family Court, i.e., no later than the next day the Family Court is in session if the juvenile is detained and within ten court days if the juvenile is released. In determining whether the juvenile should be released, with or without conditions, or detained, the magistrate must apply the criteria in and issue the findings required by section 320.5 of the Family Court Act. In order that Family Court would be alerted to expect the case, the order of the magistrate must be immediately transmitted to it. (See 2021 NY Legis Memo 456)
   
 
    Family Court Act §312.2 subdivision 3 reads as follows:
     3. A juvenile who is arrested pursuant to a warrant issued under  this
   section  must  forthwith and with all reasonable speed be taken directly
   to the family court located in the county in which the warrant had  been
   issued,  or, when the family court is not in session, to the most acces-
   sible magistrate, if any, designated by the appellate  division  of  the
   supreme  court  in  the  applicable department. If a juvenile is brought
   before an accessible magistrate, the magistrate shall set a date for the
   juvenile to appear in the family  court  in  the  county  in  which  the
   warrant  had  been issued, which shall be no later than the next day the
   court is in session if the magistrate orders the juvenile to be detained
   and within ten court days if the magistrate orders the  juvenile  to  be
   released.  In  determining whether the juvenile should be released, with
   or without conditions, or  detained,  the  magistrate  shall  apply  the
   criterion and issue the findings required by section 320.5 of this arti-
   cle.  The magistrate shall transmit its order to the family court forth-
   with.


 
Laws of 2021, Ch. 474, § 1, added amended the Family Court Act to add Family Court Act § 162-a, effective October  8, 2021
Laws of 2021, Ch. 474, § 1, added amended the Family Court Act to add Family Court Act § 162-a, effective October  8, 2021 to provide that except as otherwise provided in Family Court Act § 162-a, restraints on children under the age of twenty-one, including, but not limited to, handcuffs, chains, shackles, irons or straitjackets, are prohibited in the courtroom.
The legislation provides that restraints are prohibited and must presumptively be removed upon entry of a juvenile into the courtroom) unless Family Court determines and explains on the record why restraints are "necessary to prevent: (1) physical injury by the child to himself or herself or another person; (2) physically disruptive courtroom behavior, as evidenced by a recent history of behavior that presented a substantial risk of physical harm to the child or another person where the behavior indicates a substantial likelihood of current physically disruptive courtroom behavior by the child; or (3) the child's flight from the courtroom, as evidenced by a recent history of absconding from the Court." Particular restraints permitted must be the "least restrictive alternative" and, in order to ensure due process, the child must be given an opportunity to he heard regarding a request to impose restraints. The legislation further provides that, in cases where the exception is invoked, only handcuffs or footcuffs may be used and hand-
cuffs may not be joined to footcuffs. (See 2021 NY Legis Memo 474)
 
Restrictions upon use of mechanical restraints on adult offenders in
criminal trials has long been recognized as necessary to a fair trial. The US Supreme Court, in Deck v. Missouri, in rejecting routine shackling as a violation of due process, noted its origins in common law:
 
    Blackstone's 1769 Commentaries on the Laws of England noted
   that "it is laid down in our ancient books" that a defendant "must
   be brought to the bar without irons, or in any manner of shackled
   or bonds, unless there be evident dangers of an escape." 544 U.S. 622, 626 (2005). 
Following Deck, the New York Court of Appeals, in People v. Best, 39 N.Y.3d 739 (2012), criticized a defendant's shackling in a bench trial in the absence of a showing of necessity on the record, noting that "judges are human, and the sight of a defendant in restraints may unconsciously influence even a judicial factfinder," in
addition to harming the defendant and the public's perception of both the defendant "and of criminal proceedings generally." Chief Judge Lippman, dissenting from the majority's conclusion that use of restraints constituted harmless error, observed that "(t)he unwarranted shackling of defendants strikes at the very heart of the right to be presumed innocent.  Visible shackles give the impression to any trier of fact
that a person is violent, a miscreant, and cannot be trusted."  More recently, in United States v. Haynes, 729 F.3d 178, 188 (2nd Cir., 2013), the US Court of Appeals, Second Circuit, held that:
 
It is beyond dispute that a defendant may not be tried in shackles
unless the trial judge finds on the record that it is necessary to use such a restraint as a last resort to satisfy a compelling interest such as preserving the safety of persons in the courtroom. Arguments for restricting use of restraints upon adult offenders are
even more compelling with respect to children. Not only is use of shackles an infringement upon the presumption of innocence at the fact-finding (trial) stage, it also impedes the ability and willingness of youth to participate in court proceedings, including dispositional and permanency hearings, and to engage in planning for their futures. Juveniles are critical participants in such hearings.  See Family Court Act §§
341.2(1), 355.5(8), 756-a(d-1). (See 2021 NY Legis Memo 474)
The Legislation solely addresses courtroom appearances. A similar
presumption currently applies to use of restraints during transportation of juveniles from New York State Office of Children and Family Services facilities pursuant to an injunction issued in the class action case of  Matter of John F. v. Carrion, -Misc.3d-, N.Y.L.J., Jan. 27, 2010 (S.Ct., N.Y.Co., 2010). (See 2021 NY Legis Memo 474)
Family Court Act § 162-a provides:
(a) Use of restraints. Except as otherwise provided in subdivision (b) of this section, restraints on children under the age of twenty-one, including, but not limited to, handcuffs, chains, shackles, irons or straitjackets, are prohibited in the courtroom.
(b) Exception. Permissible physical restraint consisting of handcuffs or footcuffs that shall not be joined to each other may be used in the courtroom during a proceeding before the court only if the court determines on the record, after providing the child with an opportunity to be heard, why such restraint is the least restrictive alternative necessary to prevent:
(1) physical injury to the child or another person by the child;
(2) physically disruptive courtroom behavior by the child, as evidenced by a recent history of behavior that presented a substantial risk of physical harm to the child or another person, where such behavior indicates a substantial likelihood of current physically disruptive courtroom behavior by the child; or
(3) flight from the courtroom by the child, as evidenced by a recent history of absconding from the court.  (Added L.2021, c. 474, § 1, effective  Oct. 8, 2021.)