Recent Legislation
Domestic Relations Law §240 (1-c) (b) was amended by Laws of 2019, Ch 182 to add to subdivision (B) which provides that
There is a
rebuttable presumption that it is not in the best interests of the child to be
placed in the custody of or have unsupervised visits
with a person who has been convicted of a felony sex offense,
as defined in section
70.80 of the penal law, or convicted of an offense in
another jurisdiction which, if committed in this state, would constitute such a felony
sex offense, where the victim of
such offense was the child who is the subject of the proceeding. ►Laws of 2019, Ch 182, §1, effective September 22, 2019.
Family Court Act §651 (a) was amended by Laws of 2019, Ch 182, read as follows:
When referred from the supreme court or county court to
the family court, the family court has jurisdiction to determine, in accordance
with subdivisions one and one-c of section two hundred
forty of the domestic relations law and with the same powers possessed by the
supreme court in addition to its own powers, habeas corpus proceedings and
proceedings brought by petition and order to show cause, for the determination
of the custody or visitation of minors. Laws of 2019, Ch 182, §2, effective September 22, 2019.
Appellate Division, Fourth Department
Mother’s Refusal to Believe Child’s Disclosure of Sexual Abuse and Her
Continued Commitment to Alleged Abuser Rendered Her Unfit to Have Custody of
Child
In Matter of Edmonds v
Lewis, --- N.Y.S.3d ----, 2019 WL 3955058, 2019 N.Y. Slip Op. 06316 (4th
Dept., 2019) the Appellate Division affirmed an order which granted the fathers
motion to modify a prior joint custody
order so as to grant him sole custody of child and granted the mother
supervised visitation with child. The parties were the parents of a child born
in 2012. In October 2015, they stipulated to a joint custody order that granted
primary physical residence of the child to the father and visitation to the
mother. The mother’s visitation was suspended in May 2016, following the
child’s disclosure of sexual abuse by the mother’s boyfriend. After the mother
agreed to keep her boyfriend away from the child, Family Court granted the
mother supervised visitation. In December 2016, however, the court temporarily
suspended that visitation and, as of March 2017, the mother’s visitation had
not resumed. The Appellate Division found a sound and substantial basis in the
record to support the court’s determination. The mother’s refusal to believe
the child’s disclosure of sexual abuse and her continued commitment to the
alleged abuser rendered her unfit to have custody of the child. The quality of
the home environment of the father was superior to that of the mother inasmuch
as the mother resided in a one-bedroom apartment with the alleged abuser. The
record established that the father, who was attentive to the child’s
disclosures of abuse, was better able to provide for the child’s emotional and
intellectual development and that the court’s determination aligned with the
child’s desires. It rejected the mother’s contention that the court erred in
directing that her visitation be supervised. “Supervised visitation is a matter
left to the sound discretion of the court and will not be disturbed where ...
there is a sound and substantial basis in the record to support such
visitation”. Here, the record established that the mother repeatedly put the
child at risk by violating court orders and by permitting the alleged abuser to
have access to the child.
Fourth Department, Holds Request by Party to Waive Right to Counsel Places
in Issue Whether Court Fulfilled its Obligation to Ensure A Valid Waiver,
Which, As Subject of Contest Before the Court, Could Be Reviewed.
In Matter of DiNunzio v
Zylinski, --- N.Y.S.3d ----, 2019 WL 3955273, 2019 N.Y. Slip Op. 06337 (4th
Dept., 2019) after the mother
failed to return to courtroom following recess and did not appear for the remainder of hearing, the Family Court, found
the mother in default and entered an order granting father sole custody of
child. On appeal the Appellate Division held that the validity of the
mother's waiver of the right to counsel was the subject of contest before trial
court, and thus the mother was permitted to raise on appeal her contention that
trial court erred in failing to ensure that her waiver was knowing, voluntary,
and intelligent.
The Appellate Division
observed that New York State law recognizes that “[p]ersons involved in certain
family court proceedings have a constitutional right to counsel in such
proceedings” (Family Ct Act § 261). Parties entitled to counsel include, as
pertinent here, any person seeking custody of his or her child or “contesting
the substantial infringement of his or her right to custody of such child” (§
262[a][v]). When determining whether a party may properly waive the right to
counsel in favor of proceeding pro se, the trial court, “[i]f a timely and
unequivocal request has been asserted, ... is obligated to conduct a ‘searching
inquiry’ to ensure that the [party’s] waiver is knowing, intelligent, and
voluntary” (Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d
535, 953 N.E.2d 773 [2011] ). Such a request for relief triggers the obligation
of the court, which is permitted to grant the relief only upon “a showing on
the record of a knowing, voluntary and intelligent waiver of the [right to
counsel]” (Matter of Storelli v. Storelli, 101 A.D.3d 1787, 1788, 958 N.Y.S.2d
249 [4th Dept 2012]. For that reason, it held that a request by a party to
waive the right to counsel and proceed pro se, as the mother made here, placed
in issue whether the court fulfilled its obligation to ensure a valid waiver.
The record supported the conclusion that whether the mother validly waived her
right to counsel was a contested issue before the court. As the issue of the
mother’s waiver of the right to counsel was the subject of contest before the
court and, it could be reviewed by the Appellate Division.
The
mother, contended that the court erred in failing to ensure, in response to her
request, that her waiver of the right to counsel was knowing, voluntary, and
intelligent. The Appellate Division held that a showing on the record of a
knowing, voluntary and intelligent waiver of the right to counsel is a
prerequisite to the court’s grant of that relief. The first dissent’s assertion
that the mother was not aggrieved because she was permitted to represent
herself as she requested assumed that the mother made “a knowing, voluntary and
intelligent choice” in obtaining that relief. That issue was the subject of
contest before the court and was therefore reviewable on appeal from the orders
in appeal Nos. 1–5 (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10, 225
N.E.2d 741.
The majority rejected the
argument of the first dissent that the statutory aggrievement requirement in
CPLR 5511, which required the mother to move to vacate her default in order to
appeal from that order, precluded consideration of an order or judgment
“entered upon the default of an aggrieved party”. The dissent pointed out that
in circumventing the default, the majority relied on a purported exception that
permits the Court to review issues that were the subject of contest before the
appealing party’s default (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10,
225 N.E.2d 741). The first dissent did not agree that James created, via a mere
footnote, such a broad exception to the aggrievement requirement, and saw
nothing in that case to suggest otherwise. It noted that the relevant footnote
in James did nothing more than appropriately apply the aggrievement requirement
to the facts of that case.
