August 1, 2020
An article titled “Is there
a Domestic Relations Exception to Diversity Jurisdiction", by Judge George
B. Daniels of the United States District Court (SDNY), and Joel R. Brandes,
appears in the “Outside Counsel” column of the August 5, 2020 issue of the New
York Law Journal, at page 4. Click here to read the article.
Latest Executive Order
Executive Order
202.55,
signed on August 5, 2020 extends the
provisions tolling the Statute of Limitations until
September 4, 2020.
Appellate Division, Second Department
Court
must articulate an explanation of the basis for its calculation of child
support based on parental income in excess of the statutory cap
In Matter of
Glick v Ruland, 2020 WL 4197090 (2d Dept.,2020) the Appellate Division held
that where combined parental income exceeds the statutory cap, in fixing the
basic child support obligation on income over the ceiling, the court has the
discretion to apply the factors set forth in Family Court Act '
413(1)(f), or to apply the statutory percentages, or to apply both. The Family
Court must articulate an explanation of the basis for its calculation of child
support based on parental income in excess of the statutory cap. This
articulation should reflect a careful consideration of the stated basis for its
exercise of discretion, the parties= circumstances, and its reasoning why there should or should
not be a departure from the prescribed percentage. In addition to providing a
record explanation for deviating or not deviating from the statutory formula, a
court must relate that record articulation to the factors set forth in Family
Court Act ' 413(1)(f).
Respondents
failed to demonstrate the existence of an operative parent‑child relationship
between the child and Joseph T. only evidence was that the child called Joseph
T. Adaddy@ during weekly supervised visits, and that they were
affectionate with each other
In Matter of
Luis V v Laisha PT, 184 A.D.3d 648, 125 N.Y.S.3d 133 (2d Dept.,2020) in 2017
the petitioner, filed a petition for a declaration that he was the father of
the child, who was born in 2016, and an order for genetic testing. The attorney
for the child and the respondent mother did not dispute that the petitioner was
the biological father, but opposed the petition on equitable estoppel grounds.
Family Court denied the petition, finding that he was equitably estopped from
asserting paternity because it would not be in the child=s
best interests, as the child had an established parent‑child relationship with
the mother=s husband, the respondent Joseph T. The Appellate Division
reversed. It held that the doctrine of equitable estoppel may Apreclude
a man who claims to be a child=s biological father from asserting his paternity when he
acquiesced in the establishment of a strong parent‑child bond between the child
and another man. The doctrine protects the status interests of a child in an
already recognized and operative parent‑child relationship (Matter of Juanita
A. v. Kenneth Mark N., 15 N.Y.3d 1, 5, 904 N.Y.S.2d 293, 930 N.E.2d 214) and
has been applied in situations where an individual has assumed the role of a
father and where the petitioner putative father has neglected to assume such a
role. It found that the respondents
failed to demonstrate the existence of an operative parent‑child relationship
between the child and Joseph T. The only evidence of such a relationship came
from the child=s foster mother, with whom he had lived since he was one year
old. The foster mother testified that the child called Joseph T. Adaddy@
during weekly supervised visits, and that they were affectionate with each
other at the visits, Joseph T. never appeared in court on the petition and did
not testify at the hearing. Joseph T. and the child were not in a recognized
and operative parent‑child relationship. It held that the court should have
dismissed the equitable estoppel defense.
Family
Court
The
purpose of a forensic evaluation is not to evaluate the child=s mental health
In R.M. v. C.C., 2020 WL 4187263 (Table), 2020
N.Y. Slip Op. 50825(U)(Fam Ct.,2020) the Court observed that the purpose of a
forensic evaluation in court for purposes of therapeutic interventions C
that is the parents= responsibility. The purposes of a forensic evaluation is
solely to aid the court in making a best interests determination. See Salamone‑Finchum
v. McDevitt, 28 AD3d 670, 671 (2d Dept. 2006) (AThe
decision whether to direct a psychological or social evaluation in a child
custody dispute [to assist the court in addressing this issue] is within the
sound discretion of the [Family Court]@ (quoting Matter of Paul C. v. Tracy C., 209 AD2d 955, 955 (4th
Dept. 1994))); Pacheco v. Morales, 5 AD3d 387 (2d Dept. 2004)(APursuant
to Family Court Act '' 251 and 252, one of the tools that a court may use in
determining what is in the best interests of a child is a forensic evaluation
of any person within its jurisdiction or the parent of any child within its
jurisdiction.@).
July 16, 2020
Covid19
Update
On
July 6th, the Governor signed Executive Order 202.48 to continue the modification and suspension of
laws relating to the disaster emergency. The Executive Order extends the
provisions tolling the Statute of Limitations until August
5, 2020 and ends the suspension of several laws related to
criminal matters.
Appellate Division, First
Department
Former boyfriend who
voluntarily provided Sperm without any restriction or agreement not permitted
to raise defense to paternity of equitable estopped
In Matter of Claudia B v Darrin M, --- N.Y.S.3d ----,
2020 WL 3848213, 2020 N.Y. Slip Op. 03861(1st Dept.,2020) after the
parties relationship ended, petitioner asked respondent to donate sperm so that
she could conceive a child. In October 2009, petitioner sent respondent a draft
written agreement which stated that respondent would have no parental rights or
responsibilities as to the child and would not be named as the father on the
birth certificate, and that petitioner would not seek child support from
respondent. While they were still negotiating terms, respondent donated 17
vials of semen to a fertility center. Respondent contended that he stopped
participating in the endeavor, but took no further actions because he was
purportedly told by the fertility center that petitioner could not use his
semen samples. In March 2013, petitioner gave birth to a child. In April 2017,
petitioner filed a paternity petition seeking to have respondent declared the
father of her child. Respondent argued that petitioner was equitably estopped
from bringing the paternity claim because the parties intended that he be a sperm
donor only, without any legal rights or obligations to the child. The motion
court found that respondent’s estoppel claim was inconsistent with New York
law, and directed that he submit to DNA testing. After testing revealed
respondent to be the father of the child, the court entered an order of
filiation. On appeal, respondent argued that petitioner should be equitably
estopped from seeking to have him declared the father of the child. The
Appellate Division held that it need not decide whether, under New York law,
estoppel is available to foreclose a mother from asserting paternity as to a
known sperm donor, because even if it were, respondent’s claim would fail. To
prevail on estoppel grounds, the moving party bears the burden of proving, by
clear and convincing evidence, a right to the relief sought. Even assuming the
truth of respondent’s factual assertions, he failed to meet his burden.
Contrary to respondent’s contention, there was no binding enforceable oral or
written agreement between the parties, either before or after respondent
donated his sperm. It rejected Respondent’s reliance on Matter of Joseph O. v.
Danielle B., 158 A.D.3d 767, 71 N.Y.S.3d 549 [2d Dept. 2018] and Matter of
Christopher YY. v. Jessica ZZ., 159 A.D.3d 18, 69 N.Y.S.3d 887 [3d Dept. 2018],
lv denied 31 N.Y.3d 909, 2018 WL 2924972 [2018]. These cases involved
preconception agreements with reciprocal waivers of paternity and child support
claims between a same-sex married female couple, on the one hand, and a known
sperm donor on the other. The courts in those cases applied equitable estoppel
to thwart the donor’s paternity claims because they threatened to harm the
parent/child bonds that had developed, a fact pattern not presented here.
Neither case supported respondent’s claim that an unsigned, non-final
preconception agreement can be used to equitably estop a mother from asserting
paternity as to a known sperm donor.
First Department
holds it is proper to impute income based on access to parents vacation homes
In DeNiro v DeNiro, --- N.Y.S.3d ----, 2020 WL
3848156 (1st Dept.,2020) the Appellate Division held that Supreme
Court providently exercised its discretion in imputing income to the parties
based on its credibility determinations and evidence adduced at trial. The
court could consider defendants access to her father’s vacation homes, payment
of travel and entertainment expenses through work, and employment at her
father’s businesses in imputing income to her.
Appellate Division, Second
Department
Appellate
Division awards counsel fees for services rendered in pursuing counsel fee
application in light of the defendant’s persistent refusal to tender a
meaningful contribution to the plaintiff’s counsel fee obligations and his
retaliatory cross motion.
In
Marchese v Marchese, --- N.Y.S.3d ----, 2020 WL 3551814, 2020 N.Y. Slip Op.
03655 (2d Dept.,2020) a settlement was reached on the morning of the first day
of trial. The overall value of plaintiff’s agreed-upon equitable distribution
was over $4.6 million, inclusive of the value of the former marital residence,
valued at $500,000, The defendant’s equitable distribution was approximately
$10 million. The defendant agreed to pay taxable maintenance to the plaintiff
of $10,000 per month through February 2020, $15,000 per month thereafter
through February 2024, and $20,000 per month thereafter through February 28,
2027, at which time all maintenance would terminate. As of the time of the execution of the
agreement, the plaintiff had incurred counsel fees of approximately $516,000,
of which the defendant had paid $65,000 by court order. In contrast, the
defendant incurred counsel fees of more than $900,000, nearly doubling the fees
incurred by the plaintiff. The defendant had also paid more than $100,000 to a
court-appointed expert valuation firm. The plaintiff had retained her own
expert valuation firm and the defendant had paid that firm $25,000. Supreme
Court granted the plaintiff’s motion to the extent of awarding her counsel fees
in the sum of only $100,000 and failed to award her any expert fees.
The
Appellate Division held that denial of the plaintiff’s motion to compel the
defendant to pay for the entirety of her valuation expert (FRA) fees was not a sound exercise of discretion.
The defendant’s business interests were complicated and it was the plaintiff’s
burden, as the non-titled spouse, to establish the extent to which these
business interests constituted marital property and their value. While the
Supreme Court appointed a qualified expert firm to value the defendant’s
business interests, the record reflected that the plaintiff had valid reasons
to question aspects of the court-appointed expert’s report as well as to obtain
a lifestyle analysis. Given the complexity of the issues, the burden of proof
which was upon the plaintiff, and the relative financial positions of the
parties, and the quality and result of the work undertaken by FRA, the
plaintiff’s submissions warranted an award to her in the sum of $71,473.60 to
pay for the balance of the fees attributable to FRA’s services. In reaching
this determination, it was undisputed that FRA’s work at the eve of trial led
to significant increases in the valuation of the marital estate and facilitated
the settlement of the matter.
In awarding the plaintiff only a portion of the fees
requested, the Supreme Court considered that the defendant was the monied
spouse. The defendant did not rebut the presumption in favor of an award of
counsel fees to the plaintiff. The Appellate Division held that the counsel fee
award was inadequate. It found that Supreme Court gave undue weight to the
financial resources available to the plaintiff. A less-monied spouse should not
be expected to exhaust all, or a large portion, of available finite resources
available, particularly where the more affluent spouse is able to pay his or
her own legal fees without any substantial lifestyle impact. The plaintiff was
approximately 63 years old at the time of the proceedings below, had a
debilitating medical condition, and was unable to work. In contrast, the
defendant was 48 years old, in good health, and had a proven track record of
average annual earnings in excess of $2 million. Of the plaintiff’s equitable
distribution, only approximately ½ was in the form of liquid assets, and her
overall share of the distributed assets was significantly less than that of the
defendant. The plaintiff’s taxable maintenance was modest in comparison with
the defendant’s earnings. Given the significant disparity between the parties’
assets and incomes, as well as the significant disparity in their ages and
health conditions, the defendant was in the superior position to bear the
expenses of this litigation. The Court concluded that the defendant should be
responsible for the balance of the plaintiff’s counsel fees and expenses, net
of his prior payments, in connection with the underlying litigation, which
amounted to $451,188.15.
In addition, the Appellate Division awarded $30,000
counsel fees for services rendered in pursuing the counsel fee application. In the context of
this case, an award was appropriate in light of the defendant’s persistent
refusal to tender a meaningful contribution to the plaintiff’s counsel fee
obligations. It also considered the defendant’s making of a cross motion that
sought to impose on the plaintiff responsibility for 50% of the fees of the
court-appointed valuation firm and 100% of her own fees. The cross motion could
only be viewed as retaliatory.
Court should not
consider change in custody in the absence of an application for that relief
with notice to the parent
In Matter of Ross v Ross, --- N.Y.S.3d ----, 2020 WL
3551747, 2020 N.Y. Slip Op. 03668 (2d Dept.,2020) mother filed a petition for
custody of the child, and the father cross-petitioned for custody. The hearing
on the petitions concluded on June 12, 2018, and the Family Court reserved
decision. On that same day, the Family Court issued a temporary order of
parental access. The father filed a violation petition alleging that the mother
had violated the June 12, 2018, temporary order of parental access in that when
the father attempted to exercise parental access he discovered that the mother
and the child were gone. He suspected that the mother had moved with the child
to Sweden. The Appellate Division held the subsequent conditional directive of
the Court that sole legal and physical
custody of the child shall be transferred to the father if the mother did not
return the child to New York City within 30 days was meant to punish the mother
and was not based on the court’s determination of the best interests of the
child. The court should not have considered a change in custody in the absence
of an application for that relief with notice to the mother. The court’s
conditional award of custody to the father was improper in light of the court’s
determination otherwise that it was in the child’s best interests to remain in
the custody of the mother.
Appellate
Divison, Third Department
Costs
involved in providing vacation home for child to use occasionally does not
justify a finding that Child Support Amount Calculated by the CSSA formula is
unjust or inappropriate.
In Donna E v Michael F, --- N.Y.S.3d
----, 2020 WL 3847492 (3d Dept.,2020) in determining child support Supreme
Court chose to deviate from the CSSA formula, finding that the calculation of
$1,024 as the husband’s basic child support obligation was unjust and
inappropriate. As an explanation for doing so, the court stated its concern
that mandating the full amount of support from the husband would likely have
the effect of forcing the sale of the husband’s recreational cabin. This, the
court reasoned, would result in the loss of an important part of his
relationship with the child, thus effecting the physical and emotional needs of
the child to spend quality outdoor time with the husband. Moreover, according
to Supreme Court, the sale of the property would constitute a diminution of the
standard of living that the child would have enjoyed had the marriage not
dissolved. The wife asserted on appeal that Supreme Court erred, as there was
no reasonable basis in law or fact to deviate. The Appellate Division agreed
with her. The parties each testified that they struggled financially, living
“paycheck to paycheck.” However, the husband did not testify that he would be
forced to sell his cabin. Furthermore, this Court had “consistently held that
the costs of providing suitable housing, clothing and food for a child during
custodial periods do not qualify as extraordinary expenses so as to justify a
deviation from the presumptive amount” of child support. The costs involved in
providing a vacation home for a child to use occasionally do not justify a
deviation. Lastly, in its discretion, the court did not conduct a Lincoln
hearing and, as such, the child’s wishes or desires with regard to spending
time at the cabin are unknown. Nor was there any expert testimony that the
child’s physical or emotional needs would suffer if she did not spend time at
the cabin. Thus, that deviation was not warranted
Court cannot
impose jail sentence once contempt purged by payment before imposition of the
sentence
In
Essex County Child Support Enforcement Unit, on Behalf of Quackenbush, v
Crammond, -- N.Y.S.3d ----, 2020 WL 3847470 (3d Dept.,2020) the Appellate
Division held that Family Court exceeded its authority by imposing a 120–day
jail sentence for violation of the prior support order and vacated the sentence
where the contempt was purged before imposition of the sentence. Upon a finding
of a willful violation, Family Court is authorized to impose a sentence of
commitment up to six months (see Family Ct Act § 454[3][a]). “Such a sentence
is in the nature of a civil contempt, which ‘may only continue until such time
as the offender, if it is within his or her power, complies with the support
order’”.
2010 amendment
to Domestic Relations Law § 236[B][9] applies where pre-2010 child support
agreement modified after effective date of amendment
In Matter of Henry v Bell, --- N.Y.S.3d ----, 2020 WL
3847620, 2020 N.Y. Slip Op. 03829 (3d Dept.,2020) the Appellate Division held
that the 2010 amendment to Domestic
Relations Law § 236, under which a “court may modify an order of child support
where ... three years have passed since the order was entered, last modified or
adjusted” applies where a support order entered before the amendment is
modified by an order made after the amendment. Accordingly, the mother’s
petition for an upward modification of the father’s child support obligation
was properly analyzed in the context of the 2010 amendment.
Where Court
permitted mother to testify telephonically without being sworn, it was error
for to rule that it would not credit the mother’s testimony given that it was
not sworn
In Matter of Burnett v Andrews-Dyke, --- N.Y.S.3d ----,
2020 WL 3847447, 2020 N.Y. Slip Op. 03838 (3d Dept.,2020) a default order was
entered finding the mother in willful violation of a prior support order, a
three-month period of incarceration was recommended, and the matter was
referred to Family Court for confirmation. Family Court granted the mother’s
application to appear telephonically at the confirmation hearing based upon her
representation that she was unemployed, homeless and physically and financially
unable to travel to personally appear in New York. Following the May 2019
confirmation hearing, Family Court ruled that the mother’s testimony was not
competent because it was not sworn. The court issued an order confirming the
finding of a willful violation and ordered that the mother be committed to jail
for three months, subject to payment of a set purge amount. The Appellate
Division reversed. It recognized that Family Ct. Act § 433 gives Family Court
the discretion to permit a party in a child support proceeding to testify by
telephone where it determines that “it would be an undue hardship for such
party ... to testify ... at the [F]amily [C]ourt where the case is pending” (22
NYCRR 205.44[b]). Unsworn testimony, except in certain instances not applicable
here, is generally inadmissible. Family Court’s order granting the mother’s
application to appear telephonically did not condition her appearance upon
testifying from a location where a notary would be available to swear her in.
At the hearing, when the mother’s counsel called her to testify, Family Court noted
that the mother was not in a location where a notary was present to administer
an oath, but then permitted her to be questioned, without providing any
indication that her answers would later be considered incompetent based upon
the lack of an oath. Having permitted the mother to give unsworn testimony
telephonically, it was error for Family Court to thereafter sua sponte rule,
nearly 1½ months after the hearing, that it would not credit the mother’s
testimony given that it was not sworn.
July 1, 2020
The “Outside Counsel” column which appears on page 5 of the
July 2, 2020 edition of the New York Law Journal contains an article titled "Limiting the Scope of
Representation in Family Court Proceedings, , by Joel R. Brandes and Chris
McDonough, Esq. Click here to read the article.
Law and The Family New York Forms, 2020
Edition (New
York Practice Library, 5 Volumes, July 2020) By Joel R. Brandes is now available
from Thomson Reuters
(For information
click on this link to go to Thomson Reuters).
Court of Appeals amends Rules
of Practice effective May 27, 2020
The Court of Appeals has amended its Rules of Practice to
require, for motions and responses to Rule 500.10 jurisdictional inquiries,
submissions in digital format as companions to the printed papers filed and
served in accordance with the Court’s Rules of Practice. The Court has also
amended its Rules of Practice to reduce the number of printed copies that must
be filed for civil motions for leave to appeal, reargument motions, and papers
in opposition to those motions. The amended Rules were effective May 27, 2020. Any responses to Rule
500.10 jurisdictional inquiries requested on or after May 27, 2020 and any
motions returnable on or after June 1, 2020 must comply with the amended Rules.
A full copy of the notice to the bar, and relevant portions of the proposed
amended Rules, can be accessed at http://www.nycourts.gov/ctapps/news/nottobar/nottobar05112020.pdf.
Pursuant to Rule 500.2(b), the Court of
Appeals requires the submission of motion and opposition papers and Rule 500.10
Jurisdictional Responses in digital format. Parties who have received a motion
instruction letter or Jurisdictional Inquiry letter from the Clerk’s Office
should use this Companion Filing Upload Portal to submit motion and opposing
papers and Rule 500.10 Jurisdictional Responses. The portal can be accessed at https://www.nycourts.gov/ctapps/courtpass/MotionUpload.aspx
Uploading digital submissions to this
Portal does not satisfy the service or filing due dates by operation of the
CPLR or the Court’s Rules of Practice. The filer is responsible for meeting any
applicable CPLR time limit by serving and filing as provided by the CPLR. The
filer is responsible for meeting the Court’s applicable due dates by filing the
required number of paper documents with the Clerk’s Office.
Technical specifications and
instructions for submission in the Court of Appeals can be accessed at https://www.nycourts.gov/ctapps/courtpass/TechSpecsCFUP.htm
This Portal is for uploading
companion digital submissions of motions and Rule 500.10 Jurisdictional
Responses only. Those wishing to upload companion digital submissions of briefs
and record materials on pending appeals on the normal course or sua sponte
merits (SSM) track (Rule 500.11) must do so through the Court-PASS system at https://www.nycourts.gov/ctapps/courtpass/
Court
pass digital filing frequently asked questions
are posted on the Courts website at https://www.nycourts.gov/ctapps/digfilingfaq.htm
Appellate
Division, Third Department
New York court
may modify an out‑of‑state custody order that is valid under other state’s law
but not in conformance with New York law
In Matter of Paul
JJ., v. Heather JJ., Respondent, 2020 WL 3271765 (3rd Dept.,2020)
the Appellate Division held that a New
York court may, as a matter of law, modify an out‑of‑state custody order that
is valid under the other state’s law but is not in conformance with New York
law, and that the party seeking a modification of such an order must adhere to
the typical standard and demonstrate a change in circumstances before the court
can modify the prior order.
Under
the UCCJEA, (Domestic Relations Law ' 77Bb [1]; and subject to exceptions not relevant here, a
New York court must recognize and enforce a registered child custody order
issued in another state, but may only modify such an order in accordance with
title II of the UCCJEA, which includes Domestic Relations Law '
76Bb (see Domestic Relations Law '
77Be [2]; 28 USC ' 1738A). Thus, New York is required to recognize and
enforce the 2007 judgment even though its visitation provision would have been
improper if issued by a New York court. The U.S. Constitution=s
Full Faith and Credit Clause requires all courts to give full faith and credit
to the judicial proceedings in every other state (see U.S. Const, art IV, '
1).4 When courts of this state uphold the validity of a foreign divorce decree,
they must recognize all provisions of the decree, with exceptions for, among
other things, the rare instance where a provision of the original decree
violates the public policy of this state; in this context, public policy is not
determined by reference to laws and court decisions alone, and Aforeign
judgments generally should be upheld unless enforcement would result in the
recognition of a transaction which is inherently vicious, wicked or immoral,
and shocking to the prevailing moral sense@ (Greschler v. Greschler, 51 N.Y.2d 368, 377, 434
N.Y.S.2d 194, 414 N.E.2d 694 [1980]. Although the UCCJEA provides jurisdiction
for New York courts to modify an out‑of‑state order, it does not prescribe the
standard to be used in a modification proceeding. Instead, we must look to the
substantive law of New York and adhere to the ordinary standard for
modification of a custody and visitation order. Thus, to modify the 2007
judgment, the father was first required to demonstrate a change in
circumstances since the entry of that judgment that would warrant undertaking a
best interests analysis.
Appellate
Divison, Fourth Department
Supreme Court
cannot properly find party in criminal
contempt for perjury based on testimony
in Family Court
In
Ritchie v Ritchie, 2020 WL 3160969 (4th Dept.,2020) the Appellate
Division agreed with the mother that the court erred in sua sponte directing
her to Apay a $2,500 fine to the [f]ather for her perjury in
this matter ... and if the fine is not permitted by law, [directing that] ...
the fine [be converted] into an award of damages.@
The court did not state whether it was sanctioning the mother for frivolous
conduct or for civil or criminal contempt. The court summarily punished the
mother by sanctioning her after it determined that she committed perjury during
her testimony before a Judicial Hearing Officer in Family Court with respect to
the temporary order of protection and during her testimony at the hearing on
the petition before Supreme Court. Assuming, arguendo, that perjury would
support a finding of contempt, the court could not properly find the mother in
criminal contempt based on her testimony in Family Court, nor could the court
summarily punish the mother for civil or criminal contempt based on that
testimony, inasmuch as it occurred out of the court’s Aimmediate
view and presence@. Insofar as the order may be deemed to sanction the
mother for civil or criminal contempt that occurred in the presence of Supreme
Court, because Adue process requires that ... the contemnor be
afforded >an opportunity to be heard at a meaningful time and in
a meaningful manner= @, and the court failed to provide notice that it was
considering finding the mother in contempt or an opportunity to be heard
thereon, the court erred in imposing such sanction. The court had no authority
to sanction the mother on the ground that she engaged in frivolous conduct.
Assuming, arguendo, that sanctions for frivolous conduct may be based on a
party=s perjury, it held that the regulation permitting the
imposition of such sanctions specifically provides that it Ashall
not apply to ... proceedings in the Family Court commenced under article ... 8
of the Family Court Act@ (22 NYCRR 130‑1.1 [a]. This matter was commenced in
Family Court under article 8 of the Family Court Act, and thus no such sanction
was authorized.
June 16, 2020
Covid19
Executive Order
Executive
order 202.38 extended for another 30 days the executive order that
temporarily tolls all statutes of limitations during the coronavirus public health
crisis The latest order extends through July 6. It tolls “any specific time limit for the
commencement, filing, or service of any legal action, notice, motion, or other
process or proceeding, as prescribed by the procedural laws of the state,
including but not limited to the criminal procedure law, the Family Court act,
the civil practice law and rules, the Court of Claims act, the Surrogate’s
Court procedure act, and the uniform court acts, or by any other statute, local
law, ordinance, order, rule, or regulation, or part thereof.” It also extended
his previous order pertaining to remote witnessing, which clarifies the
requirements needed to allow the remote signings of such documents as deeds,
wills, power of attorney forms and healthcare proxies. It also extended
an earlier executive order pertaining to the
criminal procedure law.
Appellate
Divison, Third Department
New York court
may modify an out‑of‑state custody order
that is valid under another state’s law but not in conformance with New York
law
In Matter of Paul JJ., v. Heather JJ.,
Respondent, 2020 WL 3271765 (3rd Dept.,2020) the Appellate Division
held that a New York court may, as a
matter of law, modify an out‑of‑state custody order that is valid under the
other state’s law but is not in conformance with New York law, and that the
party seeking a modification of such an order must adhere to the typical
standard and demonstrate a change in circumstances before the court can modify
the prior order. Under the UCCJEA,
(Domestic Relations Law ' 77Bb [1]; and subject to exceptions not relevant here, a
New York court must recognize and enforce a registered child custody order
issued in another state, but may only modify such an order in accordance with
title II of the UCCJEA, which includes Domestic Relations Law '
76Bb (see Domestic Relations Law '
77Be [2]; 28 USC ' 1738A). Thus, New York is required to recognize and
enforce the 2007 judgment even though its visitation provision would have been
improper if issued by a New York court. The U.S. Constitution=s
Full Faith and Credit Clause requires all courts to give full faith and credit
to the judicial proceedings in every other state (see U.S. Const, art IV, '
1).4 When courts of this state uphold the validity of a foreign divorce decree,
they must recognize all provisions of the decree, with exceptions for, among
other things, the rare instance where a provision of the original decree
violates the public policy of this state; in this context, public policy is not
determined by reference to laws and court decisions alone, and Aforeign
judgments generally should be upheld unless enforcement would result in the
recognition of a transaction which is inherently vicious, wicked or immoral,
and shocking to the prevailing moral sense@ (Greschler v. Greschler, 51 N.Y.2d 368, 377, 434
N.Y.S.2d 194, 414 N.E.2d 694 [1980]. Although the UCCJEA provides jurisdiction
for New York courts to modify an out‑of‑state order, it does not prescribe the
standard to be used in a modification proceeding. Instead, we must look to the
substantive law of New York and adhere to the ordinary standard for
modification of a custody and visitation order. Thus, to modify the 2007
judgment, the father was first required to demonstrate a change in
circumstances since the entry of that judgment that would warrant undertaking a
best interests analysis.
If parent demonstrates that the default in
neglect proceeding resulted from a deprivation of Afundamental due process rights,@ the default is a nullity and no showing of a meritorious defense is
required
In Matter of Arra L..183
A.D.3d 1027, 123 N.Y.S.3d 294, 2020 N.Y. Slip Op. 02829 (3d Dept.,2020) petitioner commenced a
neglect proceeding alleging that respondent had neglected her children.
Respondent attended several court conferences without the benefit of counsel
until, in April 2018, she was absent without explanation for a conference. Upon
petitioner=s application, Family Court declared respondent in
default and issued an order adjudicating her to have neglected the children.
Respondent=s motion to vacate the default order was denied and
the Appellate Division reversed. It held that a parent has a right Ato
be present at every stage of@ a Family Ct Act article 10 proceeding as a matter of
due process, but that right Ais not absolute@. Family Ct Act ' 1042 provides that Aa
court may proceed with a hearing ... in a parent=s
absence, so long as the subject child is represented by counsel, and the absent
parent may thereafter move to vacate the resulting order and schedule a
rehearing@ Vacatur of that order would ordinarily be warranted
if, upon motion, the parent demonstrated Aa meritorious defense to the petition, unless ... [he
or she] willfully refused to appear at the hearing@.
If the parent demonstrates that the default itself resulted from a deprivation
of his or her Afundamental due process rights,@
however, the default is a nullity and no showing of a meritorious defense is
required. In respondent=s motion to vacate the default order of fact‑finding,
she explained her absence from the conference, but failed to set forth a
meritorious defense. Although respondent was arguably on notice of the April
2018 conference, she did not receive notice that a potential fact‑finding
hearing might be conducted at it so as to satisfy due process. Despite the
references in the order of fact‑finding to an inquest, there was no dispute
that Family Court departed from Athe proper course@ of conducting a hearing in respondent=s
absence by accepting the allegations in the petition as proven by virtue of
respondent=s default. It would offend due process to hold that
respondent Adefault[ed] in attending a hearing that she did not
know was going to happen and did not, in fact, happen. @Notwithstanding
the failure of respondent to articulate a meritorious defense, Family Court
abused its discretion in denying respondent=s
motion.
Supreme Court
Supreme Court
Sanctions Litigant for vexatious/abusive
litigation, also known as Apaper@ or Aseparation@ abuse, by denying credit for 6 years of pendente lite payments
In Jessica T v Kieth T,
2020 WL 3163793 (Sup Court, 2020) the Supreme Court observed that sanctions may
be awarded if conduct is frivolous or if it
"is undertaken primarily to delay or prolong the resolution of the
litigation, or to harass or maliciously injure another" (22 NYCRR 130‑1.1
[c] [2] ) or if such conduct "asserts material factual statements that are
false". In light of the fact that the defendant abused the Plaintiff
throughout the litigation with his manipulation of the court process by his
blatant disregard of the truth, pressing frivolous claims, wasting court time
with witnesses that had at best merely uninformed opinions, causing drawn out
conferences and examinations of witnesses that were not probative, making
specious arguments and accusations including parent alienation, refusing to pay
timely support payments until threatened with incarceration, refusing to help
save the marital home from foreclosure, harassing and annoying the Plaintiff
and J., refusing to pay his share of the court‑ordered business evaluation
which precluded the Plaintiff from demonstrating any potential increase in
business' value during the marriage, and by prolonging this case by creating
unnecessary litigation, the court sanctioned the defendant by awarding
financial compensation to the Plaintiff. In order to do justice in compensate
the Plaintiff for some of the injuries that the Plaintiff suffered as a result of the Defendant's
malicious, vexatious/abusive litigation, and as a sanction for the Defendant's
completely frivolous conduct throughout the case and during the trial, the Court awarded the
Plaintiff ten years of maintenance payments. Furthermore, it held that while normally the years and amounts paid
during the pendente lite period are accounted for in formulating post‑divorce
maintenance, because of the Defendant's
own actions and vexatious litigation which purposefully attenuated the
proceeding, and the need to compensate the Plaintiff, the Defendant would
receive no credit for the approximately last 6 years of pendente lite payments.
In a footnote the Court described vexatious/abusive litigation, also known as Apaper@
or Aseparation@ abuse, as involving the perpetrator=s
filing of frivolous motions and lawsuits to maintain a hold over his or her
victim=s life after the separation and the commencement of
the divorce proceeding. Litigation is the only tool left for the abuser to use
to keep the victim face to face with him or her. This tool further traumatizes
the victims of intimate/partner domestic violence even after the victim has
managed to leave the relationship.
Appellate Divison, Fourth
Department
Supreme Court cannot
find litigant in criminal contempt based on testimony in Family Court, nor can
court summarily punish litigant for civil or criminal contempt based on that
testimony.
In
Ritchie v Ritchie, 2020 WL 3160969 (4th Dept.,2020) the Appellate
Division agreed with the mother that the court erred in sua sponte directing
her to Apay a $2,500 fine to the [f]ather for her perjury in
this matter ... and if the fine is not permitted by law, [directing that] ...
the fine [be converted] into an award of damages.@
The court did not state whether it was sanctioning the mother for frivolous
conduct or for civil or criminal contempt. The court summarily punished the
mother by sanctioning her after it determined that she committed perjury during
her testimony before a Judicial Hearing Officer in Family Court with respect to
the temporary order of protection and during her testimony at the hearing on
the petition before Supreme Court. Assuming, arguendo, that perjury would
support a finding of contempt, the court could not properly find the mother in
criminal contempt based on her testimony in Family Court, nor could the court
summarily punish the mother for civil or criminal contempt based on that testimony,
inasmuch as it occurred out of the court’s Aimmediate
view and presence@. Insofar as the order may be deemed to sanction the
mother for civil or criminal contempt that occurred in the presence of Supreme
Court, because Adue process requires that ... the contemnor be
afforded >an opportunity to be heard at a meaningful time and in
a meaningful manner= @, and the court failed to provide notice that it was
considering finding the mother in contempt or an opportunity to be heard
thereon, the court erred in imposing such sanction. The court had no authority
to sanction the mother on the ground that she engaged in frivolous conduct.
Assuming, arguendo, that sanctions for frivolous conduct may be based on a
party=s perjury, it held that the regulation permitting the
imposition of such sanctions specifically provides that it Ashall
not apply to ... proceedings in the Family Court commenced under article ... 8
of the Family Court Act@ (22 NYCRR 130‑1.1 [a]. This matter was commenced in
Family Court under article 8 of the Family Court Act, and thus no such sanction
was authorized.
June 1, 2020
Appellate
Division, Second Department
It is an
improvident exercise of discretion to deny a request for an adjournment where
the evidence is material, the application is properly made and is not made for
purposes of delay, and the need for an adjournment does not result from the
failure to exercise due diligence.
In
Markowitz v Markowitz, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 2462400 (Mem), 2020 N.Y. Slip
Op. 02772 (2d Dept., 2020) prior to the trial, the Supreme Court directed a
forensic evaluation, but the defendant did not consent to it being admitted
into evidence at trial. The plaintiff sought to have the forensic evaluator
testify at trial, and the court directed the parties to pay their respective
pro rata share of the cost of the evaluator=s
trial fees. The plaintiff paid her share, but the evaluator did not receive the
defendant=s share and did not appear to testify at trial in the
absence of full compensation. The plaintiff requested a two‑week adjournment in
order to secure the evaluator=s fee and produce him as a witness, but the court
denied the application. After the trial, the court awarded the defendant sole
legal and physical custody of the child, with specified parental access to the
plaintiff. The Appellate Divison reversed and remitted for a new trial. It held
that the court should not have denied the plaintiff=s
request for an adjournment in order to secure the testimony of the evaluator.
Although an application for an adjournment is addressed to the sound discretion
of the trial court, it is an improvident exercise of discretion to deny such a
request where the evidence is material, the application is properly made and is
not made for purposes of delay, and the need for an adjournment does not result
from the failure to exercise due diligence. The plaintiff was not at fault for
the delay since the forensic evaluator was an expert who could not be compelled
to testify without appropriate compensation, and the plaintiff=s
inability to produce the witness was a result of the defendant=s
failure to pay.
An order denying
an application to sign an order to show cause is not appealable
In Curcio v Curcio, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 2462338
(Mem), 2020 N.Y. Slip Op. 02780 (2d Dept.,2020) the mother moved, by order to
show cause, inter alia, in effect, to modify an order of protection. By order
dated March 8, 2019, the court, declined to sign the order to show cause. The
mother noticed and perfected an appeal. The Appellate Division held that an
order denying an application to sign an order to show cause is not appealable
(see CPLR 5704[a]). However, it deemed it appropriate to treat the notice of
appeal as an application for review pursuant to CPLR 5704(a).
A child support
obligation is owed to the child, not to the payee spouse
In Matter of Sultan v Khan, --- N.Y.S.3d ----, 2020 WL
2545265 (Mem), 2020 N.Y. Slip Op. 02929 (2d Dept.,2020) the Appellate Division
affirmed an order which directed the father to pay child support to the
maternal grandfather, who was awarded custody of the child after the mothers
death, retroactive to the date of the mother’s death. It held that since a
child support obligation is owed to the child, not to the payee spouse, he
death of the payee spouse does not terminate the obligation. The death of the
mother did not terminate the father’s continuing obligation under the order of
support dated December 4, 2014, to support the children. It would be contrary
to the statutory scheme of the Family Court Act and the important public
policies it embodies for the father to no longer be liable for unpaid child
support payments accrued after the mother’s death where, as here, “he neither
had custody of the child[ren] nor sought to otherwise modify his child support
obligation during the relevant period”.
Supreme Court
Appearance by
Video Conference permitted pursuant to CPLR 3117
In
Mannino v Caroso, --- N.Y.S.3d ----, 2020 WL 2545265 (Mem), 2020 N.Y. Slip Op.
02929, Unreported Disposition, Sup Ct, 2020) Supreme Court granted the
plaintiff’s motion an order granting plaintiff permission to appear in this
matter by video conferencing. On January 2, 1977, the parties were married in
Italy. Thereafter, the parties resided together in their marital residence
located at 8635 14th Avenue in Brooklyn, New York. Three children were born of
the marriage, all of whom were emancipated prior to the commencement of this
action. In 1984, plaintiff was convicted of various crimes in the United States
and sentenced to 44 months in prison. On April 30, 1992, plaintiff, who is an
Italian citizen, was deported to Italy and has remained there to the present
day. According to plaintiff, given his prior criminal conviction and
deportation, he is precluded from returning to the United States. The motion
was granted to the extent that, pursuant to CPLR 3103 (a), plaintiff’s
deposition is to be conducted via video. Further, pursuant to CPLR 3117 (a)
(3), plaintiff was granted leave to employ a video transcription of his
deposition testimony at trial in lieu of appearing at trial. Testimony at the
trial in chief may also be via video as long as the Plaintiff makes
arrangements for the video link, via skype for business or any other approved
platform by the Court System in accordance with protocols in effect at that
time including but not limited to a prohibition on recordings or coaching of a
witness from a remote location. The motion was granted on condition he submit
proof that he as actually attempted to obtain permission to enter the United
States.
Children are not
parties to the litigation
In
Clarence M v Martina M, 2020 WL 2499625 (Sup Ct 2020) Plaintiff moved for an
order determining that the children were not parties to the litigation with
fundamental rights to automatically review copies of the pleadings, motion
papers, forensic reports, other mental reports or status reports, affidavits,
affirmations, statements of net worth and/or other litigation documents without
leave of court. Supreme Court agreed and held that it was not appropriate for a
14‑year‑old child to see a report prepared by a forensic evaluator related to
therapeutic visitation. It held that when Rule 7.2 was enacted it was not the
intent to abrogate the role of the Court.
May 16, 2020
The May 18, 2020 edition of the New York
Law Journal contains Mr. Brandes “Law and the Family” column which is a regular feature in the New York Law
Journal. The May 18, 2020 edition of his column contains an article he wrote
titled “The Resurrection of Marital Fault”. It appears on
page 3 and in the online edition. Click here for
our copy of the article.
Summary of Relevant Executive and Administrative Orders Related to
Covid19
Executive Order 202.8, March 20, 2020
In accordance with the directive of the Chief
Judge of the State to limit court operations to essential matters during the
pendency of the COVID-19 health crisis, any specific time limit for the
commencement, filing, or service of any legal action, notice, motion, or other
process or proceeding, as prescribed by the procedural laws of the state,
including but not limited to the criminal procedure law, the family court act,
the civil practice law and rules, the court of claims act, the surrogate's
court procedure act, and the uniform court acts, or by any other statute, local
law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled
from the date of this executive order until April 19, 2020
Essential
Proceedings Administrative Order AO/78/20 March 22, 2020
A. Criminal matters 1.
arraignments 2. bail applications, reviews and writs 3. temporary orders of
protection 4. resentencing of retained and incarcerated defendants 5. essential
sex offender registration act (SORA) matters
B. Family Court 1. child
protection intake cases involving removal applications 2. newly filed juvenile
delinquency intake cases involving remand placement applications, or
modification thereof 3. emergency family offense petitions/temporary orders of
protection 4. orders to show cause 5. stipulations on submission
C. Supreme Court 1. Mental
Hygiene Law (MHL) applications and hearings addressing patient retention or
release 2. MHL hearings addressing the involuntary administration of medication
and other medical care 3. newly filed MHL applications for an assisted
outpatient treatment (AOT) plan 4. emergency applications in guardianship
matters 5. temporary orders of protection (including but not limited to matters
involving domestic violence) 6. emergency applications related to the
coronavirus 7. emergency Election Law applications 8. extreme risk protection
orders (ERPO)
D. Civil/Housing matters
1. applications addressing landlord lockouts (including reductions in essential
services) 2. applications addressing serious code violations 3. applications
addressing serious repair orders 4. applications for post-eviction relief
E. All Courts 1. any other
matter that the court deems essential This list of essential proceedings is
subject to ongoing review and amendment as necessary.
March 22,
2020 Chief Administrative Judge - Press Release
Virtual Court Operations
to Commence in NYC Mid-week
New York State Courts
Remain Open for Business, Maintaining All Essential and Emergency Proceedings
NEW YORK−Extraordinary
times like these call for extraordinary measures. In response to the COVID-19
pandemic, the New York State court system is instituting various temporary
measures to reduce courtroom density and stem the spread of the Coronavirus.
Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks
today announced that beginning on Wednesday, March 25, 2020 and Thursday, March
26, 2020, virtual court operations will commence, respectively, in New York
City Criminal Court and New York City Family Court
NYC Family Court:
Effective Thursday, March 26, 2020−in order to mitigate and contain the ongoing
spread of coronavirus while at the same time continuing to provide critical
emergency relief to the children and families the court serves−the New York
City Family Court will hear by remote video appearances and/or by telephone the
following matters:
• Child-protective intake
cases involving removal applications
• Newly-filed juvenile
delinquency intake cases involving remand applications
• Emergency family offense
petitions
• Writ applications where
there is a court order if custody or parenting time.
Additionally, due to the
suspension of civil statutes of limitation by the Governor’s executive order
202.8, effective immediately, all new Court filings, either e-filed or hard
copy, that are not essential matters, will NOT be accepted.
Executive
Order 202.14 April 7, 2020
WHEREAS, on March 7,
2020, I issued Executive Order Number 202, declaring a State disaster emergency
for the entire State of New York; and
WHEREAS, both travel-related cases and community contact transmission of
COVID-19 have been documented in New York State and are expected to continue;
NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by
virtue of the authority vested in me by Section 29-a of Article 2-B of the
Executive Law, do hereby continue the suspensions and modifications of law, and
any directives, not superseded by a subsequent directive, made by Executive
Order 202 and each successor Executive Order to 202, for thirty days until May
7, 2020, except as limited below.
April 8, 2020
Chief Administrative Judge – Administrative Order (AO/85/20)
Pursuant to the authority vested in me, and at the
direction of the Chief Judge, I hereby promulgate, effective April 13, 2020,
the following additional procedures and protocols to 
mitigate the effects of the COVID-19 outbreak upon the users, visitors,
staff, and judicial officers of the Unified Court System.
1. In addition to essential
court functions as set forth in AO/78/20, trial courts will address the
following matters through remote or virtual court operations and offices:
Conferencing Pending Cases: Courts will review their docket of pending cases,
assess matters that can be advanced or resolved through remote court
conferencing, and schedule and hold conferences in such matters upon its own
initiative, and where appropriate at the request of parties.
Deciding Fully Submitted Motions: Courts will decide fully submitted motions in
pending cases.
Discovery and Other Ad Hoc Conferences: Courts will maintain availability during normal
court hours to resolve ad hoc discovery disputes and similar matters not
requiring the filing of papers.
2.
Video Technology: Video teleconferences conducted by the court, or
with court participation, will be administered exclusively through Skype for
Business.
3.
No New Filings in Nonessential Matters: No new nonessential matters may be filed until
further notice; nor may additional papers be filed by parties in pending
nonessential matters. The court shall file such orders in essential and
nonessential matters as it deems appropriate.
Provisions of prior administrative orders inconsistent
with this order shall be superseded by this order.
\Unified Court System Memo Dated April 30, 2020: Next Steps to
Expand Court Services
In a memo to all trial court judges and justices, Chief Administrative
Judge Lawrence K. Marks advised that: (1) New motions, responsive papers to
previously filed motions, and other applications (including post-judgment
applications) may be filed electronically in pending cases, either through the
NYSCEF e-filing system in jurisdictions that have it, or through a new
electronic document delivery system that has been created for courts and
jurisdictions where e-filing is unavailable; (2) Problem-solving courts may
conduct virtual court conferences with counsel, court staff, and service
providers, via Skype for Business; (3) Judges may resume referral of matters
for alternative dispute resolution, including to neutrals on court-established
panels, community dispute resolution centers, and ADR-dedicated court staff; and
(4) Notices of appeal may be filed electronically, either through NYSCEF or
through the new document delivery system.
Executive Order 202.14 dated April 17, 2020
Extended Executive Order 202.8 to May 7, 2020
The
Governor issued Executive Order No. 202.8 on March 20, 2020, which states in
pertinent part: “any specific time limit for the commencement, filing, or
service of any legal action, notice, motion, or other process or proceeding, as
described by the procedural laws of the state, including but not limited to the
criminal procedure law, the family court act, the civil practice law and rules,
the court of claims act, the surrogate’s court procedure act, and the uniform
court acts, or by any other statute, local law, ordinance, order, rule, or regulation,
or part thereof, is hereby tolled from the date of this executive order until
April 19, 2020.” This order has been extended by Executive Order 202.14 to May
7, 2020.
Notice dated May 4, 2020: UCS Program
for Electronic Delivery of Documents
In response to the COVID-19 public health
emergency and the expansion of “virtual” court operations, the Unified Court
System has initiated a new program to transmit digitized documents (in pdf
format) to UCS courts, County Clerks, and other court-related offices around
the State.
The Electronic Document Delivery System
(“EDDS”) allows users, in a single transaction, to (1) enter basic information
about a matter on a UCS webpage portal page; (2) upload one or more pdf
documents; and (3) send those documents electronically to a court or clerk
selected by the user. Upon receipt of the document(s) by the court, the sender
will receive an email notification, together with a unique code that identifies
the delivery. More detailed instructions for sending or filing documents
through EDDS may be found on the EDDS FAQ page. Users/Senders should keep
several important points in mind when using this system:
1. EDDS May be Used to File Papers with Certain
Courts: At the direction of the Chief Administrative Judge, during the COVID-19
public health crisis EDDS can be used to deliver documents for filing with
certain courts— including some Family Courts, Criminal Courts, Supreme Court,
the Court of Claims, Surrogate’s Courts, and District Courts, and City Courts.
(EDDS is not available in the New York City Criminal Court.) To use the system
for filing, the sender must simply check a box on the sender information screen,
complete the sending of the document(s) to the appropriate court through the
EDDS system, and pay any required filing fee by credit card. The clerk’s office
will review the document(s) for sufficiency and, if the clerk determines that
filing prerequisites have been met, accept them for filing purposes. In the
event that a clerk’s office has accepted and filed a document received through
EDDS, the sender will be notified of that fact by email or publication on a
public database. If no email or published notification is issued indicating
that the document has been accepted for filing, the sender should not assume
that the filing has occurred. The sender may contact the clerk’s office to
inquire about the status of a proposed filing.
2. EDDS is Not a Substitute for E-filing or
NYSCEF: Please note that, although EDDS may be used for filing in various
courts, it does not replace and may not substitute for filing under the New
York State Courts Electronic Filing System (NYSCEF). Therefore, it should not be
used in matters where NYSCEF is available on either a mandatory or consensual
basis. (Counties and case types where NYSCEF is available are listed on
NYSCEF’s Authorized for E-Filing page.)
3. EDDS
Delivery is not “Service” on Other Parties: Finally, unlike NYSCEF, delivery of
a document through EDDS does not constitute service of the document on any
other party. If service is required, the sender must serve by some other means.
In sum, EDDS is a document delivery portal that complements the UCS electronic
filing system and which, upon completion and together with NYSCEF, will allow
remote and immediate delivery of digitized documents throughout the Unified
Court System.
Executive Order 202.29 dated May 7, 2020
Continues Suspension until June 7, 2020
On
May 7, 2020 Governor Cuomo signed an executive order continuing the suspensions and modifications of law, and
any directives, not superseded by a subsequent directive, made by Executive
Order 202.15, 202.16, 202.17, 202.18, 202.19, 202.20, and 202.21, for thirty
days until June 7, 2020; and temporarily modified, beginning on the date of
this Executive Order, Section 214-g of the Civil Practice Law and Rules, to the
extent it allows an action to be commenced not later than one year and six
months after the effective date of such section, is hereby modified to allow an
action commenced pursuant to such section to be commenced not later than one
year and eleven months after the effective date of such section.
Appellate Divison, Second Department,
Administrative Order 2020-506 dated May 7, 2020
ORDERS that filing and other deadlines
set forth in any order of this Court, the Practice Rules of the Appellate
Division (22 NYCRR part 1250), the Rules of Practice of this Court (22 NYCRR
part 670), or Electronic Filing Rules of the Appellate Division (22 NYCRR part
1245), or a prior directive of the Clerk of the Court, in relation to
non-actively-managed civil matters not heretofore addressed continue to be
suspended until further directive of this Court. (This is a portion of the
order) See https://www.nycourts.gov/courts/ad2/pdf/ADM_2020-0506.pdf
The Court continues to
encourage counsel to make digital filings in all matters whenever possible,
either via NYSCEF if the appeal is subject to mandatory e-filing, or through
the digital portal on the Court’s website https://www.nycourts.gov/courts/AD2/Digital_Submission.shtml. The Court also encourages counsel to make digital
submissions through its portal in matters currently pending in which only hard
copy submissions were previously made. Submissions of digital copies will
assist the Court in processing those matters expeditiously during this time
where the Court must operate only while virtually. (ad2-motions@nycourts.gov
718-722-6319
(phone)
Appellate Division, First Department
Court
terminated defendant’s non-taxable maintenance as of December 31, 2018, after
considering employment prospects, modest marital lifestyle, and equitable
distribution of assets where defendant received pendente lite support since the
commencement of the action in 2011, a duration longer than the parties’
six-year marriage.
In
Gallen v Gallen, --- N.Y.S.3d ----, 2020 WL 2201010, 2020 N.Y. Slip Op. 02732
(1st Dept.,2020) the Appellate Division affirmed the judgment which,
inter alia, awarded defendant 25% of the “marital” portion of plaintiff’s
premarital Vanguard account ending in—4264, awarded defendant 50% of the value
of plaintiff’s Chase account ending at –8909 at commencement without crediting
plaintiff for $20,000 in post-commencement transfers, terminated defendant’s
maintenance as of December 31, 2018, and awarded defendant $70,000 in counsel
fees. It held that the court providently exercised its discretion in
terminating defendant’s non-taxable maintenance as of December 31, 2018, after
considering her employment prospects, the parties’ modest marital lifestyle,
and the equitable distribution of assets. Notably, defendant had received
pendente lite support since the commencement of the action in 2011, a duration
longer than the parties’ six-year marriage. Under the circumstances, she was
not entitled to a longer duration of maintenance.
Where respondent assumed
the role of a parent and led the child to believe he was his father, the best
interests of the child required that respondent be estopped from denying
paternity.
In Matter of Lorraine D.S. v Steven
W, 180 A.D.3d 595, 120 N.Y.S.3d 297, 2020 N.Y. Slip Op. 01298 (1st
Dept.,2020) the Appellate Division affirmed an order which found that
Respondent was equitably estopped from denying paternity of child, and entered
order of filiation declaring him to be child’s father. Clear and convincing
evidence demonstrated that respondent held himself out as the father of the
child and that the child, who was 15 years old at the time of the hearing,
considered respondent to be his father). The child lived with respondent and
his mother for approximately five years and believed that respondent was his
father, and respondent never attempted to dissuade the child from believing
otherwise. Even after respondent and the mother stopped living together,
respondent regularly sent text messages and visited with the child, and
indicated to the mother that the child would have his own space for weekend
visits in respondent’s new home. Respondent attended the child’s basketball
games and graduations and had the child as his best man at his wedding to his
current wife. He introduced the child as his son to the guests at the wedding
and referred to him as his child on social media. Under these circumstances,
where respondent assumed the role of a parent and led the child to believe he
was his father, the court properly concluded that the best interests of the
child required that respondent be estopped from denying paternity.
Supervised
visitation is only appropriate where there is a showing that the child’s
physical safety or emotional well-being is at risk
In Jeanine H v Mamadou O, --- N.Y.S.3d ----, 2020 WL
2201027, 2020 N.Y. Slip Op. 02730 (1st Dept.,2020) the Appellate
Division held that because “supervision can interfere with the parent-child
relationship,” it is only appropriate where there is a showing that the child’s
physical safety or emotional well-being is at risk without supervision (Frank
M. v. Donna W., 44 A.D.3d 495, 496, 844 N.Y.S.2d 22 [1st Dept. 2007]).
Appellate
Division, Second Department
Where ICPC
applies Court cannot grant petition for custody absent approval from the
relevant authority in the Sister State where the child is living.
In Matter of Laland v. Bookhart, --- N.Y.S.3d ----, 2020
WL 2170952 (Mem), 2020 N.Y. Slip Op. 02611 (2d Dept.,2020) the child was
removed from the mother’s care due to neglect, and placed in the care and
custody of the Suffolk County Department of Social Services. The father, who
resided in North Carolina, commenced proceedings against the mother and DSS to
obtain custody of the child. Family Court dismissed the petitions finding that
following an investigation conducted in accordance with the Interstate Compact
for the Placement of Children (ICPC), the relevant North Carolina authority
found that the father’s home was not suitable for the child and would not
consent to placing the child with the father. The Appellate Division affirmed.
Where a child is in the custody of a child protective agency (see Family Ct Act
§ 1012[i]), and a parent living outside of New York petitions for custody of
the child, the provisions of the ICPC apply. Since the child was in the custody
of DSS and the father resided in North Carolina, Family Court’s properly
determined that the ICPC applied and it could not grant the father’s petitions
for custody absent approval from the relevant North Carolina authority, and
that approval was denied.
Where a
respondent in support enforcement case indicates an inability to retain private
counsel, the court must make inquiry to determine whether the party is eligible
for court-appointed counsel.
In Matter of Goodine v Evans, --- N.Y.S.3d ----, 2020 WL
2170984, 2020 N.Y. Slip Op. 02668 (2d Dept.,2020) when the father first appeared before the
Support Magistrate, the Support Magistrate informed the father that if he was employed,
he was ineligible for assigned counsel, and that he could either represent
himself or the proceeding would be adjourned for him to hire private counsel.
Although the father informed the Support Magistrate that he could not afford
private counsel and requested the appointment of assigned counsel, the Support
Magistrate repeated that he was not entitled to appointed counsel if he was
working. The matter was adjourned for a hearing, and no further advisement or
inquiry was made by the court. The Appellate Division held that the Support Magistrate
should have inquired further into the father’s financial circumstances,
including, but not limited to, inquiring about his expenses because the father
expressed a desire to have an attorney appointed. Where a party indicates an
inability to retain private counsel, the court must make inquiry to determine
whether the party is eligible for court-appointed counsel. Here, despite the
father’s statements at the pretrial appearance that he could not afford to hire
private counsel and would like to have an attorney appointed, the Support
Magistrate adjourned the matter for a hearing. Under these circumstances, the
father was deprived of his right to counsel and reversal is required.
Appellate Division, Fourth Department
Where prior order on consent
awarded non-parent
custody for a period of time, she must establish that extraordinary
circumstances exist and that a change in circumstances had occurred since entry
of the prior order
In Matter of Driscoll v
Mack, --- N.Y.S.3d ----, 2020 WL 2090072 (Mem), 2020 N.Y. Slip Op. 02559 (4th
Dept., 2020) the Appellate Division affirmed an order which awarded physical
custody of the s children to the maternal grandmother. It held that the grandmother
met the burden of establishing that extraordinary circumstances existed even
though the prior order, which awarded her primary physical custody of the
children for a period of time, was made upon consent of the parties. Once the
grandmother established that extraordinary circumstances existed, she had the
burden, of establishing that a change in circumstances had occurred since entry
of the prior order. The Court held that to the extent that its prior cases
suggested that a change in circumstances analysis is not required here, those
cases should no longer be followed (see e.g. Matter of Tamika C.P. v. Denise
M., 39 AD3d 1213, 1214 [4th Dept 2007]; Katherine D., 32 AD3d at 1351; Matter
of Ruggieri v. Bryan, 23 AD3d 991, 992 [4th Dept 2005]).
May 1, 2020
Notice dated May 4, 2020: UCS Program
for Electronic Delivery of Documents
In response to the COVID-19 public health
emergency and the expansion of “virtual” court operations, the Unified Court
System has initiated a new program to transmit digitized documents (in pdf
format) to UCS courts, County Clerks, and other court-related offices around
the State.
The Electronic Document Delivery System
(“EDDS”) allows users, in a single transaction, to (1) enter basic information
about a matter on a UCS webpage portal page; (2) upload one or more pdf
documents; and (3) send those documents electronically to a court or clerk
selected by the user. Upon receipt of the document(s) by the court, the sender
will receive an email notification, together with a unique code that identifies
the delivery. More detailed instructions for sending or filing documents
through EDDS may be found on the EDDS FAQ page. Users/Senders should keep
several important points in mind when using this system:
1. EDDS May be Used to File Papers with Certain
Courts: At the direction of the Chief Administrative Judge, during the COVID-19
public health crisis EDDS can be used to deliver documents for filing with
certain courts— including some Family Courts, Criminal Courts, Supreme Court,
the Court of Claims, Surrogate’s Courts, and District Courts, and City Courts.
(EDDS is not available in the New York City Criminal Court.) To use the system
for filing, the sender must simply check a box on the sender information
screen, complete the sending of the document(s) to the appropriate court
through the EDDS system, and pay any required filing fee by credit card. The
clerk’s office will review the document(s) for sufficiency and, if the clerk
determines that filing prerequisites have been met, accept them for filing
purposes. In the event that a clerk’s office has accepted and filed a document
received through EDDS, the sender will be notified of that fact by email or
publication on a public database. If no email or published notification is
issued indicating that the document has been accepted for filing, the sender
should not assume that the filing has occurred. The sender may contact the
clerk’s office to inquire about the status of a proposed filing.
2. EDDS is Not a Substitute for E-filing or
NYSCEF: Please note that, although EDDS may be used for filing in various
courts, it does not replace and may not substitute for filing under the New
York State Courts Electronic Filing System (NYSCEF). Therefore, it should not
be used in matters where NYSCEF is available on either a mandatory or
consensual basis. (Counties and case types where NYSCEF is available are listed
on NYSCEF’s Authorized for E-Filing page.)
3. EDDS
Delivery is not “Service” on Other Parties: Finally, unlike NYSCEF, delivery of
a document through EDDS does not constitute service of the document on any
other party. If service is required, the sender must serve by some other means.
In sum, EDDS is a document delivery portal that complements the UCS electronic
filing system and which, upon completion and together with NYSCEF, will allow
remote and immediate delivery of digitized documents throughout the Unified
Court System.
\Unified Court System Memo Dated April 30, 2020: Next Steps to
Expand Court Services
In a memo to all trial court judges and justices, Chief
Administrative Judge Lawrence K. Marks advised that: (1) New motions,
responsive papers to previously filed motions, and other applications
(including post-judgment applications) may be filed electronically in pending
cases, either through the NYSCEF e-filing system in jurisdictions that have it,
or through a new electronic document delivery system that has been created for
courts and jurisdictions where e-filing is unavailable; (2) Problem-solving
courts may conduct virtual court conferences with counsel, court staff, and
service providers, via Skype for Business; (3) Judges may resume referral of
matters for alternative dispute resolution, including to neutrals on
court-established panels, community dispute resolution centers, and
ADR-dedicated court staff; and (4) Notices of appeal may be filed electronically,
either through NYSCEF or through the new document delivery system.
Executive Order Extended to May 7, 2020
The
Governor issued Executive Order No. 202.8 on March 20, 2020, which states in
pertinent part: “any specific time limit for the commencement, filing, or
service of any legal action, notice, motion, or other process or proceeding, as
described by the procedural laws of the state, including but not limited to the
criminal procedure law, the family court act, the civil practice law and rules,
the court of claims act, the surrogate’s court procedure act, and the uniform
court acts, or by any other statute, local law, ordinance, order, rule, or
regulation, or part thereof, is hereby tolled from the date of this executive
order until April 19, 2020.” This order has been extended by Executive Order
202.14 to May 7, 2020.
Administrative
Order issued on March 22, 2020
The Chief Administrative
Judge of the New York State Court issued an Administrative Order on March 22,
2020, which states that, “effective immediately and until further order, no
papers shall be accepted for filing by a county clerk or a court in any matter
of a type not included on the list of essential matters.” The Administrative Order includes a list of
“essential matters,” which applies to both paper and electronic filing cases.
As relevant to family law practitioners “essential matters” includes the
following: B. Family Court:
1. child protection intake
cases involving removal applications; 2. newly filed juvenile delinquency
intake cases involving remand placement applications, or modification thereof;
3. emergency family
offense petitions/temporary orders of protection; 4. orders to show cause; 5.
stipulations on submission; C. Supreme Court: 5. temporary orders of protection (including
but not limited to matters involving domestic violence)
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