January 1, 2020
The
October 2019 update to my 9 volume treatise, Law and The Family New York, 2d has been released and is available
on the Thomson Reuters website bookstore.
The New York Matrimonial Trial Handbook is available in Bookstores and online at the Bookbaby
Bookstore, Amazon, Barnes & Noble, Goodreads, and
other online booksellers. For information click
on this link. It is also available in Kindle ebook
editions and electronic editions at the Joel R. Brandes Consulting Services and Bookstore website.
Recent
Legislation
Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well
as of the Social Services Law section 358-a
Laws of
2019, Ch 732 amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section
358-a, to require an agency with which a child has been placed, either
voluntarily or as a result of an abuse or neglect finding, or to whom guardianship
and custody has been transferred as a result of the child being freed for
adoption, to report to the attorney for the child not later than ten days in
advance of any change in the child's placement status and not later than the
next business day in any case in which an emergency placement change has been
made. According to the memorandum in support of the legislation, first, it
requires a report within five days of the date that any report of abuse or
maltreatment is found to be indicated. Indicated reports include those naming
the child and, where the subjects of the reports involve the person or persons
caring for the child, reports naming other children in the home. It contains an important proviso that such
reports notify the recipients that the information shall be kept confidential,
shall be used only in connection with the child protective, foster care or
related proceedings under the Family Court Act and may not be re-disclosed
except as necessary for such proceeding or proceedings and as authorized by
law. Second, recognizing that fairness also dictates that such notifications be
made to the attorneys for all parties, not simply the attorneys for the
children, the measure requires that, except in cases involving children freed
for adoption, both notices of changes in placement and indicated child
maltreatment reports be conveyed to attorneys for the birth parents. Family
Court Act §1017 was amended by adding a new subdivision 5. Family Court Act,
§1055 (b)(E) was repealed. Family Court Act § 1055 was amended by adding a new
subdivision (j). Family Court Act 1089 (d) 2 (vii) was amended by adding a new
clause (H) and Social Services Law §358-a, subd. 3 was amended by adding a new
paragraph (g).
Laws of 2019, Ch 716, enacted and effective December 20, 2019, amended
Domestic Relations Law and the Civil Rights Law.
Domestic Relations Law section 15 was amended to amend
the
'Notice to Applicant', which appears on every application
for a marriage license, to include language that informs those seeking a
license that either or both spouses may elect to change their middle name to
his or her current last name, any former last name he or she has had, or the
last name of the other spouse. Domestic Relations Law section 14-a was amended
to include the option of changing a middle name on the marriage license. Civil
Rights Law section 65 was amended to provide that any person may elect to
resume the use of a former middle name upon divorce or annulment and that the
state shall not impose a fee to change the middle name on a state identifying
document due to a change in marital status. The purpose of the amendments is to
allow one or both parties to a marriage to elect to change their middle name on
their marriage license. According to the memorandum in support of the
legislation, many women and men are opting to change their last name upon
marriage but want to keep their former last name in some capacity. One popular way to accomplish this is to keep
the former last name as a new or second middle name. Many states allow for such
a change to occur with ease on the marriage license, but New York did not.
Laws
of 2019, Ch 712 enacted and effective on December 20, 2019, amended Domestic
Relations Law §11-a, subd. 1 a to allow the New York City clerk to designate
additional staff members as he or she deems necessary to officiate marriages.
Laws
of 2019, Ch 663, enacted on December 12, 2019, effective 90 days after it
becomes a law, amended Family Court Act § 812, subd. 5, and Criminal Procedure
Law § 530.11.
Family Court Act § 812 and Criminal Procedure Law § 530.11, include protections for alleged victims of domestic violence. The statutes placed responsibility upon law enforcement, prosecutors and the courts to ensure by written notice that victims are made aware of their rights, of the expectations they may have to obtain assistance from both the civil and criminal justice systems and of the remedies and resources available to them. The notice must be in writing in both English and Spanish and must recite the statutory language verbatim. The required language in the notice was overly complex. Family Court Act § 812 and Criminal Procedure Law § 530.11 were amended substantially simplify the language contained in the notice while, at the same time, expanding the breadth of information it provides. The amendment also provides that the notice be made available, at minimum, in plain English, Spanish, Russian and Chinese.
Laws
of 2019, Ch 627, enacted December 12, 2019, and effective immediately amended
CPLR 3215 (b) to outline the procedure for an inquest on a default judgment.
CPLR 3215
(b), as amended provides that a party entitled to judgment may be
permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or
affirmations as proof of damages. However, if the defaulting party gives
reasonable notice that it will appear at the inquest, the party seeking damages
may submit any proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or,
after giving reasonable notice that it will do so, by written sworn statements
of the witnesses. If the party seeking judgment gives such notice and submits
proof by written sworn statements, he or she must make all of those witnesses
available for cross-examination.
Appellate Division, First
Department
In proceeding to establish
standing to assert parental rights in seeking visitation under Domestic
Relations Law § 70, the court has the discretion to direct “more monied” party
to pay the other party’s counsel fee
In
Kelly G v Circe H, --- N.Y.S.3d ----, 2019 WL 6869009 (1st
Dept.,2019), the Appellate Division held, as a matter of first impression for
the Court, that, in a proceeding to establish standing to assert parental
rights in seeking visitation and custody under Domestic Relations Law § 70, the
court has the discretion to direct the “more monied” party to pay the other
party’s counsel and expert fees under Domestic Relations Law § 237 before that
party has been adjudicated a parent. It affirmed the order granting
respondent’s cross-motion for interim counsel fees to the extent of awarding
her $200,000. The Appellate Division observed that Domestic Relations Law §
237(b), provides, in relevant part, that “upon any application ... concerning
custody, visitation or maintenance of a child, the court may direct a spouse or
parent to pay counsel fees and fees and expenses of experts directly to the
attorney of the other spouse or parent to enable the other party to carry on or
defend the application or proceeding by the other spouse or parent as, in the
court’s discretion, justice requires....” This statute, like Domestic Relations
Law § 70, does not define the term “parent.” In holding that Domestic Relations
Law § 70 “permits a non-biological, non-adoptive parent to achieve standing to
petition for custody and visitation” (Brooke S.B., 28 NY3d at 27), the Court of
Appeals stressed that it “has gone to great lengths to escape the inequitable
results dictated by a needlessly narrow interpretation of the term ‘parent’ ”
(Brooke S.B. at 24). Consonant with that approach, it found that highly inequitable
results would flow in this case from permitting the party with far greater
resources to seek custody as against the child’s primary parent without
allowing that parent to seek counsel fees. Without determining that she is a
parent for purposes beyond the application of Domestic Relations Law § 237(b),
it found that Domestic Relations Law § 237(b) must be read to permit the court
to direct the petitioner to pay respondent’s counsel fees as necessary “to
enable [her] to ... defend the application ... as, in the court’s discretion,
justice requires, having regard to the circumstances of the case and of the
respective parties.”
Appellate Division, Second
Department
Supreme Court has the discretion
to consider the application for counsel fees, made in opposition papers without
a cross-motion
In
Ospina–Cherner, v. Daniel Cherner, --- N.Y.S.3d ----, 2019 WL 7160518 (2d
Dept.,2019) the Appellate Division held that
Supreme Court had the discretion to consider the defendant’s application
for an award of attorney’s fees, made in his opposition papers to the subject
motion, even though he did not make a cross-motion under CPLR 2215 (see Fried
v. Jacob Holding, Inc., 110 AD3d 56, 65).
Appellate Division, Fourth
Department
22 NYCRR part 202 provisions
do not apply to proceedings in the Family Court
In
Lopez v Lopez, --- N.Y.S.3d ----, 2019 WL 7044566 (4th Dept., 2019)
the Appellate Division rejected the father’s challenges to the order of
reference in this visitation proceeding. The father’s “ ‘argument that the
court erred when it referred this matter to a referee( to hear and report ) in
the absence of exceptional circumstances (see CPLR 4212) was waived, since the
record established that [he] participated in the proceeding before the
[R]eferee without objection. Contrary to the father’s further contention, the
alleged failure of the order of reference to comply with 22 NYCRR 202.43(d) and
22 NYCRR 202.44(a) did not affect its validity because, with one exception not
applicable here (see 22 NYCRR 202.16), “the provisions of 22 NYCRR part 202
apply only to ‘civil actions and proceedings in the Supreme Court and the
County Court,’ not to proceedings in the Family Court” (McDuffie, 154 AD3d at
1309, quoting 22 NYCRR 202.1[a]; see Matter of McDermott v. Berolzheimer, 210
A.D.2d 559, 559–560 [3d Dept 1994] ). It also rejected the father’s contention
that the order on appeal must be reversed because the court confirmed the
Referee’s report before the expiration of the 15–day period set forth in CPLR
4403.
Although PAS is not routinely
accepted as a scientific theory by New York courts the Court recognizes the effects
of alienating behaviors by a parent
In Matter of Krier v Krier, ---
N.Y.S.3d ----, 2019 WL 7043498, 2019 N.Y. Slip Op. 09129 (4th
Dept.,2019) the Appellate Division affirmed an order which granted the father
sole legal and physical custody of the child. It concluded that the father
established a sufficient “change in circumstances to warrant an inquiry into
the best interests of the child” based on both the expert testimony that the
child was demonstrating elements of parental alienation and “‘the continued
deterioration of the parties’ relationship’. It concluded that there was a
sound and substantial basis for the determination that an award of sole custody
to the father was in the child’s best interests. The court properly weighed the
relevant factors and found that all weighed in favor of placement with the
father except the child’s wishes. Although the child was 15 years old at the
time of the hearing, the court properly determined that his wishes were not
entitled to great weight since the child was so profoundly influenced by his
mother “that he cannot perceive a difference between” the father’s abandonment
of the marriage and the father’s abandonment of him and that it was in the
child’s best interests to reside with the father despite his wishes to the
contrary. Contrary to the contention of
the mother and the AFC, the court did not improperly rely on the presence of
“parental alienation syndrome” (PAS) in making its custody determination. The
father’s expert did not conclude that PAS, as a diagnosis, existed in this case
and rather testified that the type of conduct in which the mother engaged
resulted in the child becoming alienated from the father. Although PAS is not
routinely accepted as a scientific theory by New York courts (see Matter of
Montoya v. Davis, 156 AD3d 132, 135 n 5 [3d Dept 2017]), the Court has
repeatedly recognized the effects of alienating behaviors by a parent on
children in custody and visitation determinations.
The
Appellate Division agreed with the mother and the AFC that the court exceeded
its jurisdiction in suspending maintenance payments to the mother since the
parties’ separation agreement setting forth that obligation is an independent contract.
Family Court is a court of limited jurisdiction and cannot exercise powers
beyond those granted to it by statute, and “[i]t generally has no subject
matter jurisdiction to reform, set aside or modify the terms of a valid
separation agreement” (Johna M.S., 10 NY3d at 366).
Fourth Department allows
attorneys fees by affidavit holding “attorney’s fees should not be awarded
without a hearing or requiring proof by affidavit substantiating the attorney’s
fees requested”.
In
Brinson v Brinson, --- N.Y.S.3d ----, 2019 WL 7043519 (4th Dept.,
2019) the Appellate Division held that the court should have conducted an
evidentiary hearing before granting respondent’s application for an award of
his attorney’s fees since respondent failed to furnish sufficient documentation
of the value of the services performed by the attorney. This issue was
preserved since petitioner contested previous requests for attorney’s fees, at
the final appearance respondent first requested the $3,000 in attorney’s fees
but submitted no supporting documentation, and the petitioner was not afforded
an adequate opportunity to dispute the same. It held that attorney’s fees
should not be awarded without conducting a hearing or requiring proof by affidavit
substantiating the attorney’s fees requested. (Moses v. Moses, 231 A.D.2d 850,
850 [4th Dept 1996]; see Matthews v. Matthews, 238 A.D.2d 926, 927 [4th Dept
1997]). An award for attorney’s fees is improper absent documentation of the
submitted value of the services performed (see Johnston v. Johnston, 63 AD3d
1555, 1556 [4th Dept 2009]; Marshall v. Marshall, 1 AD3d 323, 324 [2d Dept
2003]; cf. Ackerman v. Midura, 145 AD3d 647, 648 [2d Dept 2016] ). Thus, it
concluded that “it was an abuse of discretion to award the amount of counsel
fees requested, without affording [petitioner] the opportunity to elicit
further information on the reasonable value of those services” (Matter of Kobel
v. Martelli, 112 A.D.2d 756, 757 [4th Dept 1985]). It modified the order and
judgment by vacating the award of attorney’s fees and remitted the matter to
Supreme Court for a determination regarding attorney’s fees based upon proper
proof (see Matthews, 238 A.D.2d at 926; Moses, 231 A.D.2d at 850).
December 16, 2019
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We are looking to establish an
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Recent Legislation
Laws of 2019, Ch 623, enacted December 12, 2019
amended the Family Court Act § 657(c) to include non-parents with lawful orders
of custody as persons who may make medical decisions for minors in their care.
Laws of 2019, Ch 623, amended the Family Court Act §
657(c) to add persons possessing a lawful order of custody as persons who have
the right and responsibility, alongside the current provision of
those possessing a lawful order of guardianship, to make medical decisions and
necessary consents regarding the child in their care. It also amended Public
Health Law Section 2504(4) to include non-parents with lawful orders of custody
along with parents and guardians as persons whose consent is not needed for the
provision of medical, dental, health and hospital services when in the
Family Court Act § 657 (c) provides:
(c) Notwithstanding any other provision of
law to the contrary,
persons possessing a lawful order of
guardianship or custody of a child
shall have the right and responsibility to
make decisions, including
issuing any necessary consents, regarding
the child's protection, educa-
tion, care and control, health and medical
needs, and the physical
custody of the person of the child.
Provided, however, that nothing in
this subdivision shall be construed to limit
the ability of a child to
consent to his or her own medical care as
may be otherwise provided by
law.
Laws of 2019, Ch
62, enacted December 12, 2019 and effective immediately amended CPLR 3215 (b)
to outline the procedure for an inquest on a default judgment.
A defendant who defaults in appearing concedes only
liability. Therefore, the defaulting defendant may still contest damages at an
inquest. In Rokina Opt. Co. v Camera
King, , 63 N.Y.2d 728, 730 supra, the Court of Appeals held that "judgment
against a defaulting party may be entered only upon application to the court
along with notice to the defaulting party and 'a full opportunity to
cross-examine witnesses, give testimony and offer proof in mitigation of
damages'."
As
amended, CPLR 3215 (b) provides that a party entitled to judgment may
be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or
affirmations as proof of damages. However, if the defaulting party gives
reasonable notice that it will appear
at the inquest, the party seeking damages may submit
any proof required by CPLR 3215 (f), by oral testimony of the
witnesses in open court or, after
giving reasonable notice
that it will
do so, by written sworn
statements of the witnesses. If the party seeking judgment gives such notice
and submits proof by written sworn statements, he or she must make all of those
witnesses available for cross-examination.
CRPL 3215(b) was amended to read as
follows:
(b)
Procedure before court. The
court, with or without a jury, may
make an assessment or take an account or
proof, or may direct a refer-
ence.
The party entitled to judgment may be
permitted to submit, in
addition to the
proof required by subdivision (f) of this section, prop-
erly executed
affidavits or affirmations as proof of damages, provided
that if the
defaulting party gives reasonable notice that it will appear
at the inquest,
the party seeking damages may submit any such proof by
oral testimony
of the witnesses in open court or, after giving reason-
able notice
that it will do so, by written sworn statements of the
witnesses, but
shall make all such witnesses available for cross-exami-
nation. When a reference is directed, the court may
direct that the
report be returned to it for further action
or, except where otherwise
prescribed by law, that judgment be entered
by the clerk in accordance
with the report without any further
application. Except in a matrimonial
action, no finding of fact in writing shall
be necessary to the entry of
a judgment on default. The judgment shall
not exceed in amount or differ
in type from that demanded in the complaint
or stated in the notice
served pursuant to subdivision (b) of rule
305 of this chapter.
Appellate Division, Second Department
Motion to modify
parties’ apportionment of responsibility for AFC’s fees should not have been
decided without evidentiary hearing
In Lee v Rogers, 2019 WL 6334018 (2d Dept.,2019) after the
Court of Appeals reversed the Appellate Divisions order, rejecting the adequate
relevant information standard, and determined that an evidentiary hearing was
required (see S.L. v. J.R., 27 N.Y.3d 558, 36 N.Y.S.3d 411, 56 N.E.3d 193) the
AFC moved, in effect, for an award of attorney’s fees. The plaintiff opposed
the motion and moved to modify the parties’ apportionment of responsibility for
the fees for the AFC. Supreme Court denied the plaintiff’s motion for
modification, and directed an evidentiary hearing on the reasonableness of the
AFC’s fees. Following the hearing, the court found that the fees were
reasonable, and entered an order awarding the AFC compensation of $34,624.65,
payable in equal shares by the parties.
The Appellate Division held that contrary to the
plaintiff’s contention, the difference in opinion between it (see Matter of
Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360) and the Appellate
Division, Third Judicial Department (see Redder v. Redder, 17 A.D.3d 10, 792
N.Y.S.2d 201), as to whether attorneys for children may be compensated directly
by the children’s parents, rather than by the State, did not give rise to a
constitutional claim under the equal protection clauses of the state and
federal constitutions.
The Appellate Division held that contrary to the plaintiff’s contention, it
was appropriate for the AFC to make reasonable use of associates and support
staff to conduct legal research and other work, under the AFC’s direct
supervision, in connection with the appeal of the prior custody determination
before the Court and the Court of Appeals (see 22 NYCRR 36.4[c][5] ). It agreed
with the Supreme Court’s hearing determination finding that the fees requested
by the AFC were reasonable.
It held that plaintiff’s motion to modify the parties’
apportionment of responsibility for the AFC’s fees should not have been decided
without an evidentiary hearing. Because the affidavits submitted by the parties
provided sharply conflicting reports on the parties’ finances (see Anjam v.
Anjam, 191 A.D.2d 531, 532, 594 N.Y.S.2d 822) and there was “no evidence in the
record that the financial circumstances of the parties [had] ever been
considered, an evidentiary hearing should have been conducted before the motion
was decided.
It remitted the matter to the Supreme Court for an
evidentiary hearing on the parties’ respective finances, and a new
determination thereafter of the plaintiff’s motion.
Not error for
the Support Magistrate to impute to father the income of the father’s current
spouse
In
Matter of Fanelli v Orticelli, 2019 WL 6519694 (2d Dept.,2019) the Appellate
Division observed, that a support magistrate may impute income to a party based
on resources available to the party, including “money, goods, or services
provided by relatives and friends” (Family Ct. Act § 413[1][b][5][iv][D]). In
affirming an order which increased the fathers child support obligation it held
that it was not error for the Support Magistrate to impute to the father the
income of the father’s current spouse in the support calculation (see Matter of
Ladd v. Suffolk County Dept. of Social Servs., 199 A.D.2d 393, 394, 605
N.Y.S.2d 318; see also LiGreci v. LiGreci, 87 A.D.3d 722, 726, 929 N.Y.S.2d
253; Matter of Collins v. Collins, 241 A.D.2d 725, 727, 659 N.Y.S.2d 955).
Appellate Division, Third Department
Custody order reversed despite Family Court’s order being
supported by the current record, where the lack of an AFC prejudiced the child’s
interests
In
Matter of Marina C, v Dario D., --- N.Y.S.3d ----, 2019 WL 6331446, 2019 N.Y.
Slip Op. 53953 (3d Dept.,2019) despite Family Court’s order being supported by
the current record, the Appellate Division reversed and remitted for further
proceedings conducted with the involvement of an AFC. The Court pointed out
that it had previously noted that the
“appointment of an [AFC] in a contested custody matter remains the strongly
preferred practice,” while acknowledging that “such appointment is
discretionary, not mandatory” (Matter of Keen v. Stephens, 114 A.D.3d 1029,
1031, 981 N.Y.S.2d 174 [2014]. It has also “emphasized] the contributions
competent [AFCs] routinely make in contested matters; they not only protect the
interests of the children they represent; they can be valuable resources to the
trial court”. While advocating for the child, an AFC may provide a different
perspective than the parents’ attorneys, including through the presentation of
evidence on the child’s behalf, and may “recommend alternatives for the court’s
consideration.” Even absent a request, a court may appoint an AFC on its own
motion (see Family Ct Act § 249[a]). It noted that Family Court had appointed
an AFC for this child in connection with a previous proceeding that resulted in
a stipulated order made less than two months before the commencement of this
modification proceeding yet Family Court inexplicably did not appoint the same
or another AFC to protect the child’s interests. The Court found that the lack of an AFC prejudiced the child’s interests.
For example, the mother called the child’s therapist as a witness and no
objection was raised when the therapist testified regarding information that
the child had disclosed in therapy. Had an AFC been appointed, that attorney
presumably would have sought to protect the private and confidential nature of
the child’s discussions in therapy, rather than let the parents use the child’s
statements and therapist as weapons to support their own goals. The father also
testified regarding statements made by the child; an AFC could have objected to
those hearsay comments. Further, an AFC could have called additional witnesses,
asked questions of the witnesses called by the parties or presented other
evidence to elicit information that would support the child’s position. It held
that under the circumstances Family Court improvidently exercised its
discretion by failing to appoint an AFC, and such failure prejudiced the child.
It remitted for a new fact-finding hearing on the mother’s modification
petition, with the appointment and participation of an AFC.
Modified
stay-away order of protection pursuant to Family Ct Act § 1061 must reflect a
resolution consistent with best interests of the child and must be supported by
a sound and substantial basis in the record.
In
Matter of Andreija N, --- N.Y.S.3d ----, 2019 WL 6331396, 2019 N.Y. Slip Op. 53957
(3d Dept.,2019) petitioner, inter alia, commenced an abuse proceeding alleging
that respondent sexually abused the child. On July 20, 2018, Family Court)
issued a temporary stay-away order of protection against respondent prohibiting
any contact with the child (see Family Ct Act § 1029). This order of protection
was extended several times. In August 2018, the mother filed a petition seeking
sole legal and physical custody of the child. Thereafter, by consent of the
parties, a forensic psychologist was ordered to conduct a forensic interview of
the child in November 2018, and her report was submitted to the court. The
psychologist then completed a second report in May 2019. In both reports, the
psychologist concluded that there was no credible evidence that the father
sexually abused the child and recommended implementing the custody order. On
the first day of a combined fact-finding hearing on both petitions, both of the
psychologist’s reports were received into evidence on consent. Without any
testimony being taken, respondent, joined by the attorney for the child, then
moved to vacate the stay-away order of protection. Both petitioner and the
mother objected, and, after taking a brief recess, Family Court issued a ruling
from the bench vacating the stay-away order of protection, without explanation.
The court then issued a new temporary order of protection in May 2019 allowing
respondent to exercise unsupervised visitation pursuant to a parenting schedule
comparable to the custody order. The Appellate Division held that Family Court
abused its discretion by modifying the stay-away order of protection pursuant
to Family Ct Act § 1061. The modified order must reflect a resolution consistent
with the best interests of the child after consideration of all relevant facts
and circumstances and must be supported by a sound and substantial basis in the
record” (Matter of Yosepha K. [Chana D.], 165 A.D.3d 932, 933, 85 N.Y.S.3d 583
[2018] Although Family Court failed to articulate its reasoning for vacating
the stay-away order of protection, there were
several factors that led it to
conclude that the court did not have good cause to do so. The decision to
vacate the stay-away order of protection was made on the first day of trial
and, the record should have been further developed before a determination was
made as to whether it was in the child’s best interests to allow respondent
unsupervised, overnight parenting time. This was particularly so given
respondent’s ongoing, threatening behavior towards the mother and others via
text message and on social media. In a footnote the Court pointed out that
during the course of this dispute, respondent threatened multiple judges,
posted on social media prior to an appearance that he was “getting ready to
f*** up some justice and go to jail tomorrow,” posted a photo of himself
pointing a rifle equipped with a scope – in violation of the terms of the
stay-away order of protection – and posted, the night before the child’s
interview with the psychologist, “I know where and when so I’m packed up and
ready to take back what’s mine tomorrow. Thoughts and prayers.” Then, on the
day of the interview, respondent posted that he was “waiting at [the
psychologist’s location]. Started at 11:00 got about 45 minutes to an hour
until the sh** hits the fan. You all deserve what you get.”
In her reports, the psychologist confirmed that she
reviewed a series of emails and text messages between the parents and certain Facebook
postings of respondent. The psychologist noted that the mother perceived
respondent “as dangerous and threatening,” but did not produce any documentary
proof of violence. The psychologist characterized respondent’s “behavior and
statements [as] unconventional” and noted that “he has never been violent or
caused harm to [the child] or [the mother].” The Courts concern with these
observations was that domestic violence is not limited to physical violence. In
its view, respondent’s behavior and threats were alarming and demonstrated a
concerted effort to control and coerce the mother and others who were
associated with this custody case. As such, it believed that respondent’s
unabashed behavior evinced the hallmarks of domestic violence and should not have
been diminished as simply “unconventional” (see e.g. www.opdv.gov/domestic-violence/what-is-domestic-violence.html;
www.opdv.gov.publications/stalking-info guide). Given the need to further
develop this record, it concluded that Family Court’s determination was
premature and that good cause had not been shown to vacate the stay-away order
of protection.
In a footnote the Appellate Division stated that it
recognized that the record on appeal included petitioner’s order to show cause
submission to it seeking a stay pending appeal, which included respondent’s
text messages and Facebook postings. Respondent maintained that these documents
were not presented to Family Court and should not be considered as outside the
proper record on appeal (see CPLR 5526). The record was unclear as to whether
these submissions were before Family Court. The Court pointed out that the
general rule is that the Court may not consider matters outside the record,
i.e., materials not presented to the trial court (see Crawford v. Merrill
Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298, 361 N.Y.S.2d 140, 319
N.E.2d 408 [1974]). Respondent, however, acknowledged in his brief that “all
the submissions ... were reviewed and considered by [the psychologist].”
Correspondingly, the psychologist included a list of documents considered,
including text messages and Facebook posts, and comments on certain of these
items. Given this context, and the paramount issue of the child’s best
interests, it held that it would consider this submission (see Crawford v.
Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d at 298–299, 361 N.Y.S.2d
140, 319 N.E.2d 408; Callahan v. Cortland Mem. Hosp., 127 A.D.2d 921, 922, 512
N.Y.S.2d 281 [1987]).
Family Court
In dismissing
Adult Adoption Petition, Family Court points out apparent inadequacy of the
official forms promulgated for adult adoptions
In Matter of the Adoption of Jalyssa L.-J., 2019 WL
6711559 (Family Ct., 2019)
a proceeding for the
adoption of an adult child by her aunt, the prospective adoptive parent
submitted a “Petition for Adult Adoption” (Adoption Form 29a) and a “Consent to
Adult Adoption by Adoptee” (Adoption Form 29b). The only other papers submitted
in support of the adoption were
purported copies of the birth certificates for both the proposed
adoptive parent and the adult adoptive child and a proposed Report of Adoption
(Form DOH-1928) promulgated by the Department of Health to notify it of a
completed adoption for the purpose of making a new birth certificate. See
Public Health Law § 4138. Family Court dismissed the petition for failure to
seek and obtain pre-certification as a qualified adoptive parent in accordance
with Domestic Relations Law § 115-d, see DRL § 115(1)(b), and for failure to
make any showing that the proposed adoption would be in the best interests of
the child. Id. § 116(2). In dismissing the petition, the Court pointed out the
apparent inadequacy of the official forms promulgated for adult adoptions. See
Family Ct. Act § 214; Uniform Rules for the Fam Ct (22 NYCRR) § 205.7(a). It
explained that while adult adoptions may be dealt with more liberally than
child adoptions, they are subject to the same statutory law as other adoptions.
Matter of Mazzeo, 95 AD2d 91, 92 (3d Dept 1983). The Court of Appeals has
observed, “an adult adoption must still be in the best interests of the
adoptive child and the familial, social, religious, emotional and financial
circumstances of the adoptive parents which may be relevant must still be
investigated. The Court explained that the only simplified statutory procedure
for adult adoptions is the elimination of the requirement for the consent of
the adoptive child’s legal parents and custodians. Matter of Anonymous, 106
Misc 2d 792, 797 (Fam Ct, Kings County 1981); see DRL § 111(4). However, the adult adoption petition form
does more than simply remove the references to parental consent that are found
in the standard form petition. The form also removes references to (1) the
religious faith and income of the adoptive parent(s); (2) the religious faith
of the adoptive child; (3) the heritage, religious faith, education and general
physical appearance of the birth parents; (4) the adoptive child’s medical history;
(5) the child protective history of the adoptive child and the adoptive
parent(s); and (6) the criminal history of the adoptive child and the adoptive
parent(s). All of this information is required either directly or indirectly by
statute and is necessary to determine the best interests of the adult adoptive
child. See DRL § 115, 115-d; 116; see also DRL § 112(3); 115(11).
