Recent Decisions and Legislation November 1, 2019

Appellate Division, Second Department

Forensic Report property admitted in custody case pursuant to 22 NYCRR 202.16(g)

            Comment: The Court of Appeals has held that forensic reports are not admissible in custody cases unless they are admitted pursuant to stipulation or upon consent of the parties. Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962). However, 22 NYCRR 202.16(g)(2) provides that in the discretion of the court, written expert reports may be used to substitute for direct testimony at the trial. The reports must be submitted by the expert under oath, and the expert must be present and available for cross-examination.  To be admissible the forensic report can not rely upon information other than that upon which an expert may properly base an opinion. see Jemmott v. Lazofsky, 5 A.D.3d 558, 772 N.Y.S.2d 840; Wagman v. Bradshaw, 292 A.D.2d 84, 86–87, 739 N.Y.S.2d 421).Matter of D'Esposito v Kepler, 14 AD3d 509, 788 N.Y.S.2d 169 (A.D. 2 Dept.2005)

            In Matter of Raymond v Raymond, 174 A.D.3d 625, 107 N.Y.S.3d 433, 2019 N.Y. Slip Op. 05546  (2d Dept., 2019) the mother filed a petition seeking sole custody of the parties’ only child, who resided with her. The father initially was awarded parental access every weekend. He subsequently filed a petition seeking increased parental access. Family Court granted the mother’s petition and denied the father’s petition. The Appellate Division agreed  with the Family Court’s determination to  admit the forensic report into evidence. The parties received access to the report well in advance of the scheduled hearing, the forensic evaluator testified and was cross-examined by the parties at the hearing, the parties had  the opportunity to rebut the forensic evaluator’s findings, and the conclusions in the report were based primarily on the forensic evaluator’s firsthand interviews rather than on hearsay statements made by nontestifying declarants.

Appellate Divison holds that test generally applied for setting combined parental income cap is whether child is receiving enough to meet his or her actual needs and the amount required to live an appropriate lifestyle

In Pandis v Lapas, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057564, 2019 N.Y. Slip Op. 07267(2d Dept.,2019) the parties were married in 1992. There were  two children of the marriage, S.P., born in 1999, and N.P., born in 2005. The plaintiff commenced this action for divorce on January 9, 2012. Supreme Court awarded the defendant sole custody of the children, and declined to direct any parental access between the plaintiff and the children. In terms of child support, the court set the combined parental income cap at $250,000. The court directed the plaintiff to pay child support of $3,593.75 per month, which was 69% of the basic child support for the two children. The court also directed the plaintiff to pay 69% of the children=s add‑on expenses, including private school tuition and college tuition.  The Appellate Division held, among other things, that Supreme Court did not err in setting the combined parental income cap for child support purposes at $250,000.  Where Athe combined parental income exceeds the [statutory cap], the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in [Domestic Relations Law ' 240(1Bb)(f)] and/or the child support percentage@ (Domestic Relations Law ' 240[1Bb][c][3]. The test generally applied is whether the child is receiving enough to meet his or her >actual needs and the amount required ... to live an appropriate lifestyle= @

Party must demonstrate Aexigent or compelling circumstances@ supporting request for an adjournment to obtain counsel at late stage in the hearing

            In Matter of Eckstein v Young, 2019 WL 5057835 (2d Dept., 2019) the Appellate Division affirmed an order which granted the mother custody and permission to relocate to Connecticut. The Appellate Division, inter alia,  rejected the fathers argument that he was denied the right to counsel. The right to be represented by counsel of one=s own choosing is qualified in the sense that a party may not employ such right as a means to delay judicial proceedings. Absent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a party=s request to substitute counsel made on the eve of or during trial if the party has been accorded a reasonable opportunity to retain counsel of his [or her] own choosing before that time. Family Court providently exercised its discretion in denying the father=s request for an adjournment to obtain new counsel When the father requested this adjournment, the hearing had been ongoing for three years; the father had finished presenting his case, including testifying on his own behalf and calling two witnesses, and the mother had completed most of her case, including testifying on her own behalf on six dates and calling two witnesses. The father failed to demonstrate that there were Aexigent or compelling circumstances@ supporting his request for an adjournment at this late stage in the hearing, and given that the father was represented for the first several years of the proceedings, there is no indication that he lacked Aa reasonable opportunity to retain counsel@ before the date on which he requested the adjournment.

Mothers willful interference with fathers right to parental access] so inconsistent with the best interests of the child as to, warrant custody award to father, despite forensic evaluator recommending custody to mother

In Matter of Nieves v Nieves, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057657, 2019 N.Y. Slip Op. 07261 (2d Dept.,2019) Family Court, denied the mother=s petition for sole legal and physical custody of the parties= child and granted the father=s petition for sole legal and physical custody of the child. The Appellate Division affirmed.  In September 2016, a court‑appointed forensic evaluator prepared a forensic evaluation, noting extensive evidence that the mother and the stepfather had engaged in behavior intended to alienate the child from the father. Despite this evidence, as well as other concerns regarding the mother=s parenting, the forensic evaluator recommended against awarding custody to the father on the ground that it would be Adevastat[ing]@ to the child. Family Court concluded that despite the forensic evaluator=s recommendation, subsequent events warranted awarding sole custody to the father on the ground, among others, that he was better able to foster the child=s relationship with the noncustodial parent. The Appellate Division observed that >[w]illful interference with a noncustodial parent=s right to [parental access] is so inconsistent with the best interests of the child[ ] as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent=. The record was replete with evidence of the efforts of the mother and the stepfather to thwart the father=s parental access and alienate the child from the father. The mother and the stepfather appeared to be Apunish[ing the child] for having a relationship with [him]@ by, inter alia, forcing the child to take telephone and video calls with the father outdoors, even in inclement weather, taking a tablet that had been provided by the father to facilitate the video calls and that the stepfather claimed was Agarbage,@ and confiscating gifts from the father. The mother and the stepfather also repeatedly refused to cooperate with travel plans, and the father, among other things, had to seek a writ of habeas corpus to bring the child to the airport for a planned visit. Moreover, the mother and the stepfather disparaged the father and his family to the child and caused the child to worry that the mother would not permit him to continue a relationship with the father. This conduct was so inconsistent with the child=s best interests as to warrant awarding sole legal and physical custody to the father, notwithstanding the fact that the mother had been the primary custodian. Further, as the court observed, at the time the forensic evaluator made his recommendation that a change of custody would be detrimental to the child, the relationship between the father and the child was Aextremely tenuous,@ whereas, due to Athe extended visits,@ they subsequently developed a Asolid relationship.@

Recent Decisions and Legislation October 16, 2019

Appellate Division, Second Department

In 9-year, marriage 42-year-old wife, incapable of maintaining employment because of symptoms experienced as result of multiple sclerosis, awarded maintenance until age 67

            In Murphy v Murphy, --- N.Y.S.3d ----, 2019 WL 4656304, 2019 N.Y. Slip Op. 06780 (2d Dept.,2019) the parties were married on September 18, 2004, and had no children together. Prior to the marriage, the plaintiff was diagnosed with multiple sclerosis. On March 19, 2013, the plaintiff commenced the action for a divorce. The parties entered into a stipulation in which they resolved, inter alia, the issue of equitable distribution. At the time of trial, the plaintiff was 42 years old and the defendant was 47 years old. After the trial, the court determined, inter alia, that the plaintiff was incapable of maintaining employment because of the symptoms she experienced as a result of multiple sclerosis, and awarded the plaintiff maintenance of $10,760 per month commencing June 1, 2016, and terminating the first of the month after the plaintiff turns 67 years old. The Appellate Division affirmed. It was undisputed that the plaintiff was diagnosed with multiple sclerosis, which is a chronic and incurable autoimmune disease, as well as another autoimmune disorder, Hassimoto’s thyroiditis. At trial, the plaintiff’s evidence demonstrated that she experienced numerous symptoms as a result of multiple sclerosis and the treatment that she received for this disease, and that these symptoms interfered with her ability to work. The fact that the plaintiff wrote and self-published a book during the marriage, which took her 10 years to complete and for which she earned no income, did not warrant a different result. However, the Supreme Court should have directed that, in the event that either party dies or the plaintiff remarries during the period when the defendant is obligated to pay maintenance, that obligation terminates (see Domestic Relations Law § 236[B][1][a]).

Custody order reversed where attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child

            In Matter of David v LoPresti, --- N.Y.S.3d ----, 2019 WL 4849301, 2019 N.Y. Slip Op. 07066 (2d Dept.,2019) the mother and the father were divorced in 2015 and had one child, born in 2008. Pursuant to a stipulation the parties agreed to joint legal custody of the child with the mother having primary physical custody. In 2018, the mother moved to modify the stipulation so as to allow her to temporarily relocate with the child from Queens, New York, to New Orleans, Louisiana, for a period of two years, while she completed a fellowship program at Tulane University School of Medicine. Since the mother’s fellowship commenced prior to the hearing on the petition, she was constrained to move to Louisiana without the child, and the child stayed with the father in New York. Following the hearing, the Family Court, in effect, denied the mother’s petition and awarded physical custody of the child to the father and parental access to the mother. The Appellate Division reversed and remitted for a new hearing. It found that the record was insufficient to allow it to make a fully informed determination as to whether relocation was in the child’s best interests. Throughout the course of the proceedings on the petition, the attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child. The Rules of the Chief Judge (22 NYCRR 7.2[d]) require that, except in certain proceedings not relevant here, the attorney for the child “zealously advocate the child’s position. The Family [Court] Act identifies, as one of the primary obligations of the attorney for the child, helping the child articulate his or her position to the court” (Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093, 882 N.Y.S.2d 773; see Family Ct Act § 241). Moreover, despite the fact that it was not made aware of the child’s position through the attorney for the child, the court did not meet in camera with the child to aid it in determining her best interests. Under the circumstances of this case, including that the mother was the child’s primary caregiver since birth and that the relocation was temporary, the denial of the petition absent any indication of the child’s preferences was not supported by a sound and substantial basis in the record, and the record was insufficient to enable the Court to make its own determination of the petition. Additionally, the mother was improperly prevented by the Court Attorney Referee from presenting evidence on her petition relevant to, inter alia, the mother’s reasons for seeking the move and the impact the move would have on the child economically and educationally.

            The Appellate Division also found that the mother’s petition was for permission to relocate temporarily, and the father withdrew his cross petition for physical custody. Thus, there was no request pending before the court for a permanent change of custody, nor was there a showing that such a permanent change of custody would be in the child’s best interests.

Appellate Divison rejects mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.”

            In Matter of Liriano v Hotaki, --- N.Y.S.3d ----, 2019 WL 4849282, 2019 N.Y. Slip Op. 07071  (2d Dept.,2019) the Family Court denied in part the mothers petition to modify the custody order so as to require that the father’s parental access with the child be supervised and by conditioning the father’s right to parental access on his participation in therapy. The court also directed that the mother was “not to cancel the visit except for substantial medical reason involving the child.” The Appellate Division affirmed. It, among other things, rejected the mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.” The Appellate Division observed that this is a fairly standard limitation (see Parenting Plan, ¶ 2.12, available at www.nycourts.gov/forms/matrimonial/ParentingPlanForm.pdf [last accessed September 12, 2019]). It held that  the court’s determination that it was in the child’s best interests to limit the mother’s ability to cancel scheduled visits to instances of “substantial medical reason involving the child” was supported by a sound and substantial basis in the record (cf. Matter of Michael R. v. Aliesha H., 155 A.D.3d 1042, 1044, 66 N.Y.S.3d 39).

Appellate Divison holds it is an improvident exercise of discretion to direct that school, religious, or extracurricular activities of the children are always to take precedence over father’s parental access

            In Matter of Cuccia-Terranova v. Terranova, 174 A.D.3d 528, 107 N.Y.S.3d 28, 2019 N.Y. Slip Op. 05401 (2d Dept., 2019) the Appellate Division held that under the circumstances of this case, it was an improvident exercise of discretion to direct that the school, religious, or extracurricular activities of the children are always to take precedence over the father’s parental access, particularly since the mother was  permitted to unilaterally determine the children’s non-school activities without prior consultation with the father, and she had asserted that the children were so busy that establishing a fixed schedule would be difficult. In this context, the provision giving primacy to other activities could result in an undue curtailment of the father’s parental access. Similarly, it was an improvident exercise of discretion to preclude make-up parental access in the event that the father, or the children, were unable to participate in scheduled parental access for good cause.