Recent Legislation
Laws of 2021, Ch 56
Laws of 2021, Ch 56, Part L § 4 to § 14 amended the Family Court Act as follows.
§ 4. Family Court Act Section 353.7 was added
§ 5. Family Court Act Section 355.5 was amended by adding a new
subdivision 10.
§ 6. Family Court Act Section 756-a was amended by adding a new subdivision (h).
§ 7. Family Court Act section 756-b was added
§ 8. Family Court Act section 1017, subdivision 5 opening paragraph was designated paragraph (a) and a new paragraph (b) was added.
§ 9. Family Court Act section 1055 subdivision (j), opening paragraph was designated paragraph (i) and a new paragraph (ii) was added.
§ 10. Family Court Act section 1055-c was added.
§ 11. Family Court Act section 1089, subdivision (c), paragraph 5, subparagraph (ix), Clause (C) was amended, and a new paragraph 6 was added.
§ 12. Family Court Act section 1089, subdivision (d), subparagraph (vii), paragraph 2, clause (H), opening paragraph was designated item (I) and a new item (II) was added.
§ 13. Family Court Act section 1091-a was added.
§ 14. Family Court Act section 1097 was added.
§ 17. This act is effective September 29, 2021 subject to certain conditions.
Appellate Division, Second Department
Children do not have right to participate in litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution. Participation of Children’s attorneys limited to matters in which children are the “subject of the proceeding”
In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396138 (Mem), 2021 N.Y. Slip Op. 02286 the parties were married on July 23, 2003, and had three children. Before their marriage, they entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. Supreme Court denied the plaintiff’s motion to set aside the prenuptial agreement. Thereafter, the attorney for the children (AFC) moved to vacate which denied the plaintiff’s motion contending that case law issued subsequent to the hearing on the validity of the prenuptial agreement held that he should have been permitted to participate in the hearing to represent the interests of the children. Supreme Court granted the AFC’s motion, and directed a new hearing. The Appellate Division reversed. It held that contrary to Matter of Barbara T. v. Acquinetta M., 164 A.D.3d 1, 82 N.Y.S.3d 416, which pertained to the impact of an adoption subsidy upon an award of child support, the children here did not have standing to move to vacate the order that denied plaintiff’s motion to set aside the prenuptial agreement. “Although children have certain rights with respect to issues of child support, custody, and visitation in matrimonial actions, children do not have a right to participate in the litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution.” While children’s attorneys are expected to participate fully in proceedings in which they are appointed their participation is limited to matters in which the children are the “subject of the proceeding” (Family Court Act § 249; see Judiciary Law § 35[7]). Given that children are not bound by agreements entered into by their parents they are not the “subject” of proceedings to determine the validity of their parents’ prenuptial agreement related to maintenance and equitable distribution (Family Court Act § 249).
Where plaintiff demonstrated she presently had no assets and was reliant on public assistance Court should have held hearing on her motion to set aside prenup on ground it was against public policy.
In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396147 (Mem), 2021 N.Y. Slip Op. 02285 the parties were married on July 23, 2003, and had three children. The day before their marriage, the parties entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. At the time of the agreement, the plaintiff was employed in the field of technology and compliance, earning approximately $75,000 to $80,000 a year, and the defendant, a physician, operated a private practice, earning approximately $900,000 a year. The defendant also owned two properties in Queens. In 2008, the plaintiff ceased working outside of the home and became a full-time homemaker. In January 2015, the plaintiff commenced the action for a divorce. She moved, inter alia, to set aside the prenuptial agreement. In her affidavit submitted in support of the motion, the plaintiff averred, among other things, that she had no assets and had been required to seek public assistance. She annexed exhibits to her motion demonstrating that she was then reliant on public assistance. In an order dated August 4, 2018, made after a hearing, the Supreme Court, inter alia, denied plaintiff’s motion which was to set aside the parties’ prenuptial agreement, finding that she failed to sustain her burden of proof that the agreement was the product of duress, fraud, overreaching, or unconscionability. The Appellate Division reversed and remitted for a hearing and determination on the issue of whether the prenuptial agreement was unconscionable at the time this action was before the court. It observed that an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered. The plaintiff submitted evidence with her motion papers in support of her argument that the prenuptial agreement should be set aside as a matter of public policy since, at the time of her motion, she was unemployed, had become reliant on public assistance for herself and her children, and had no financial resources Supreme Court failed to address the plaintiff’s contention that the enforcement of the agreement would result in the risk of her becoming a public charge.
Where wife moved for interim counsel fees and motion was granted in part, her attorneys did not have standing to appeal from the order where they did not ask for any relief
In Youngwall v Youngwalll, 2021 WL 1395688 (2d Dept.,2021) an action for a divorce the defendant moved, inter alia, for an award of interim counsel fees in the sum of $350,000. The Supreme Court granted the motion only to the extent of awarding her $35,000, payable to the nonparty Advocate, LLP. Advocate, LLP, appealed, asserting that because the defendant was the nonmonied spouse, she was entitled to an award of $350,000. The appeal was dismissed, with costs to the plaintiff payable by the nonparty-appellant (see CPLR 5511). The Appellate Division held that “a person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part. Here, while the interim counsel fees awarded to the defendant on her motion were made payable to Advocate, LLC, it did not seek any relief in the Supreme Court that was denied in whole or in part. Accordingly, Advocate, LLC, was not aggrieved by the order, and the appeal had to be dismissed.
Laws of 2021, Ch 97
Laws of 2021, Ch 97 amended Family Court Act §§ 712, 732, 773 and 1012, effective April 8, 2021 by deleting the word "incorrigible".
The Legislative Memorandum in support of the legislation states that the use of the word "incorrigible" in the context of family or children's courts dates back to the first juvenile court in Chicago in the late 1800s. It was adopted in New York when the first children's courts were established in the early 20th century and has carried over in each iteration of our juvenile or family court system since that time. Primarily applied to girls, and disproportionately to girls of color, this term - in practice - tends to single out girls of color for behaviors that do not match stereotypical feminine behavior. "Incorrigible" is defined as a person who is "incapable of being corrected, not reformable" (Merriam-Webster) and, thus this term is completely out of line with the current understanding of the goals of our Family Court system. The use of "incorrigibility" as a basis for Family Court intervention disparately impacts and harms girls and young women of color. Eliminating this term from the Family Court Act is intended to send a positive message and assist in the efforts to achieve full equality and empowerment for girls, young women, and people of color.
Determination to calculate income by applying reasonable rate of return to entire tort settlement award not an improvident exercise of discretion
In Matter of Gerghty v Muniz, --- N.Y.S.3d ----, 2021 WL 1287197 (Mem), 2021 N.Y. Slip Op. 02155(2d Dept.,2021) the parties had two children, both of whom resided with the father. The parties stipulated to an order of support requiring the mother to pay child support of $5 per month, due to the mother’s inability to work after a motor vehicle accident. After the mother received a personal injury settlement award from her accident, the father filed a petition seeking an upward modification of the mother’s child support obligation. The Support Magistrate directed the mother to pay child support of $464 per month. The Appellate Division observed that a lump-sum payment received by a parent in a tort action is not excluded from consideration in determining child support. The Support Magistrate’s determination to calculate her income by applying a reasonable rate of return to the entire settlement award was not an improvident exercise of discretion. The mother did not present any evidence to demonstrate what, if any, portion of the award was for future medical expenses. Further, while she spent a portion of the award, parents have a duty to use available financial resources to support their children and cannot insulate such resources from consideration for child support by transforming them into non-income producing assets. Nevertheless, as the child support obligation directed by the Family Court reduced the mother’s income below the self-support reserve then applicable the court was required to reduce the obligation to the greater of $50 or the difference between the mother’s income and the self-support reserve (see Family Ct Act § 413[1][d]), which was $5,419, or $452 per month.
Not a Denial of due process to interview child in camera at dispositional stage abuse proceeding
In Matter of Bryce EW, --- N.Y.S.3d ----, 2021 WL 1287131 (Mem), 2021 N.Y. Slip Op. 02167 (2d Dept.,2021) the Administration for Children’s Service) commenced a proceeding against the mother and the father alleging that they had abused the child by inflicting excessive corporal punishment on him. The child was temporarily placed in the custody of a paternal great aunt. The mother, as well as ACS and the child’s attorney, subsequently consented to the entry of an order of fact-finding without admission pursuant to Family Court Act § 1051(a). After a dispositional hearing, the Family Court determined, inter alia, that it was in the best interests of the child to continue his placement with the paternal great aunt until the completion of the next permanency hearing. The Appellate Division held that the Family Court did not deprive the mother of her right to due process at the dispositional stage of the proceeding by interviewing the child in camera outside of the presence of either the mother or her counsel. At the dispositional hearing, where the court’s sole focus is the best interests of the child, the court has ample inherent discretionary power to conduct the proceedings so as to avoid placing an unjustifiable emotional burden on the child while allowing the child to speak freely and candidly (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659). Here, the court providently exercised its discretion in conducting an in camera interview with the child outside of the presence of either the mother or her counsel, after allowing the mother’s counsel to submit to the court proposed questions for the interview.
Appellate Division, First Department
When person designated in conditional judicial surrender declines to adopt the child, the surrender must be revoked upon the birth parent’s application
In Matter of L.S., --- N.Y.S.3d ----, 2021 WL 1218409, 2021 N.Y. Slip Op. 02085 (1st Dept.,2021) the Appellate Division held that when the person designated in a conditional judicial surrender pursuant to Social Services Law §383–c as the adopting parent declines to adopt the child, the surrender must be revoked upon the birth parent’s application. The Family Court was unwilling to vacate the surrender given the undisputed toll on the child’s well-being as a result of spending virtually her entire life in foster care. Instead, the court held a best interests hearing and determined that the mother’s parental rights remain terminated, and converted her conditional judicial surrender to an unconditional one, which permitted the child to remain free for adoption. The Appellate Division reversed because the designated person to adopt is a fundamental condition precedent to a surrender such that the person’s declination mandates its revocation upon the birth parent’s prompt application.
The Appellate Division observed that the legislature enacted section 383–c of the Social Services Law in 1990 to provide for new procedures for the surrender of a foster child to an authorized agency so as to free the child for adoption. The law lacked the dispositional alternatives for the conditional judicial surrender in the event of a substantial failure of a material condition prior to finalization of the adoption. That oversight was corrected by Matter of Christopher F., 260 A.D.2d 97, 701 N.Y.S.2d 171 (3d Dept. 1999) where the Appellate Division, Third Department held that the child’s adoption by the couple was a condition precedent of the surrender instrument, upon which its failure permitted the petitioner, upon her prompt application, to revoke it. The Christopher F. court found that the Family Court misconstrued Social Services Law § 383–c, reasoning that to assume that the legislature did not intend for the biological parent to have any recourse against the substantial failure of a material condition of the conditional surrender was not logical in view of the fact that the statute allowed the biological parents to surrender their child on the condition that the child be adopted by a particular person and gave the biological parents the right to notice when that condition failed. In Matter of Bentley XX (Eric XX.), 121 A.D.3d 209, 989 N.Y.S.2d 544 (3rd Dept. 2014), the Appellate Division, Third Department, held that the Family Court should have granted the father’s motion to revoke his surrender because there had been a substantial failure of a material condition, namely, that the couple, together, adopt the child. The Third Department noted that revocation continued to be a permissible disposition in a situation where the designated adoptive individual declines to adopt the child because the legislature did not disapprove of it, particularly in view of the fact that the legislature had the benefit of the holding in Matter of Christopher F. when it amended section 383–c[6][c]. The order of the Family Court was reversed, on the law, the petition denied and dismissed, and the mother’s application granted and the matter remanded for an expeditious continued hearing on the agency’s petition to terminate the mother’s parental rights.
Appellate Division, Second Department
Failure to make best interest determination and failure to articulate factors considered in awarding custody to plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children warrants reversal.
In Indictor v Indictor, --- N.Y.S.3d ----, 2021 WL 1202797, 2021 N.Y. Slip Op. 01968 (2d Dept.,2021) in 2012, the parties commenced actions for a divorce. In a temporary order of custody and visitation dated April 17, 2015, the Supreme Court, inter alia, awarded the plaintiff sole legal and physical custody of the children. In an order dated February 7, 2018, the Supreme Court appointed an attorney for the children, to be paid for equally by the parties. At a proceeding on March 26, 2018, the court indicated that it had received notification from the appointed attorney for the children that he had not been paid by either party, and was asking to be relieved. The court warned the defendant that if he did not pay the attorney for the children, the temporary order of custody and visitation would be “made final.” The court added that it could not conduct an in camera interview of the children without an attorney for the children. At a proceeding on April 27, 2018, the Supreme Court noted that the defendant still had not paid his share of the fees for the attorney for the children, and directed the plaintiff to provide the court with a proposed final order of custody. In an order dated June 1, 2018, the court, sua sponte, awarded sole legal and physical custody of the children to the plaintiff. The Appellate Division reversed and remitted for a hearing. It held that a court opting to forgo a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision. Supreme Court failed to inquire into whether an award of sole legal and physical custody to the plaintiff was in the best interests of the children and failed to articulate what factors it considered in awarding custody to the plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children. The plaintiff also failed to pay her share of the fees for the attorney for the children. It found the court erred in awarding the plaintiff sole legal and physical custody of the two minor children without conducting a hearing.
Where record is sufficient omission of recital that contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice rights or remedies may be corrected on appeal
In Matter of Martucci v Nerone, --- N.Y.S.3d ----, 2021 WL 1202639, 2021 N.Y. Slip Op. 01977(2d Dept.,2021) Family Court adjudicated the father in willful contempt of the support order. The Appellate Division agreed with the father that the order adjudging him to be in contempt of court [was] required to recite that the contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice the [mother’s] rights or remedies. However, because the finding of contempt was supported by the record, the omission of this recital was a mere irregularity which may be corrected on appeal and it modified the order of disposition to include the requisite recital.
Revised Forms for Use in Matrimonial Actions
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2021. The revised forms reflect the increases as of March 1, 2021 in the Self Support Reserve from $17,226 to $17,388 and in the federal Poverty Level Income for a single person from $12,760 to $12,880.
The Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2021 reflecting these changes are posted at http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml
The revised forms are as follows:
Form UD-8(2) Maintenance Guidelines Worksheet
Form UD-8(3) Child Support Worksheet
Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)
Post-Divorce Maintenance/Child Support Worksheet
The Uncontested Divorce Forms revised March 1, 2021 reflecting these changes are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
The revised forms are as follows:
Composite Uncontested Divorce Forms
DRL ' 243 motion for Sequestration denied where plaintiff failed to make showing of necessity, such as consistent pattern of arrears or willful violation of a court order.
In Goldin v Levy, N.Y.S.3d , 2021 WL 921683, 2021 N.Y. Slip Op. 01481 (1st Dept.,2021) the Appellate Division held, inter alia, that the order that directed a hearing to determine arrears, civil contempt, and attorneys fees was not appealable, because it did not affect a substantial right (see CPLR 5701[a][2][v]; Zaharatos v. Zaharatos, 134 A.D.3d 926, 22 N.Y.S.3d 480 [2d Dept. 2015]; Kornblum v. Kornblum, 34 A.D.3d 749, 751, 828 N.Y.S.2d 402 [2d Dept. 2006]). Any party aggrieved by an order entered subsequent to the hearing may appeal from that order. The Appellate Division held that the motion court properly denied the plaintiffs motion seeking sequestration of defendants share of retirement accounts pursuant to Domestic Relations Law ' 243. Although plaintiff established some arrears, she failed to make a showing of necessity, such as a consistent pattern of arrears or a willful violation of a court order directing payment of arrears.
Appellate Division, Second Department
Sanction of drawing an adverse inference against the plaintiff, regarding all custody issues for failure to appear for updated forensic evaluation, an improvident exercise of discretion
In Treanor v Treanor, N.Y.S.3d , 2021 WL 1010572 (Mem), 2021 N.Y. Slip Op. 08276 (2d Dept.,2021) several months after the commencement of this action for a divorce, the Supreme Court appointed a neutral forensic evaluator, who completed a forensic evaluation of the parties and their three children. In an order dated June 7, 2019, the court reappointed the forensic evaluator in order to conduct an update to the original forensic evaluation. Plaintiff violated the directives to participate in the updated forensic evaluation Upon the defendant=s motion for an order of preclusion, the Supreme Court found that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation, and imposed the sanction of drawing an adverse inference against the plaintiff with respect to custody issues at the time of trial. The Appellate Division found that Supreme Court properly determined that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation but under the circumstances of this case, the court improvidently exercised its discretion in imposing the sanction of drawing an adverse inference against the plaintiff regarding all custody issues at the time of trial on the ground that she failed to participate in the updated forensic evaluation rather than limiting the adverse inference to the circumstances of the forensic evaluation.
Improper to award parental access with the child only as often as both the child and the parent agree.
In Matter of Clezidor v Lexune, N.Y.S.3d , 2021 WL 900925, 2021 N.Y. Slip Op. 01409 (2d Dept.,2021) the Appellate Division reversed an order of the Family Court which, inter alia, awarded the mother parental access with the child only as often as both [the child] and [the mother] agree. It held that a court may not delegate its authority to determine parental access to either a parent or a child. Here, the order appealed from directed that the mother was only entitled to parental access with the child as often as she and the child agree. That provision effectively conditioned the mothers parental access on the childs wishes and leaves the determination as to whether there should be any parental access at all to the child.
Appellate Division, Fourth Department
A Contempt application which does not strictly comply with Judiciary Law ' 756 is jurisdictionally defective.
In Rennert v Rennert, N.Y.S.3d , 2021 WL 1049727, 2021 N.Y. Slip Op. 01630 (4th Dept.,2021) the plaintiffs contempt applications omitted the language warning defendant that his failure to appear in court may result in [his] immediate ... imprisonment for contempt of court. Because plaintiffs contempt applications failed to include the required warning language, they did not strictly comply with Judiciary Law ' 756, and were jurisdictionally defective.
Supreme Court
While the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration.
In JJ, v. TW, 2021 WL 1047105 (Table), 2021 N.Y. Slip Op. 50219(U) Sup Ct (2021) an action for a divorce Plaintiff moved to terminate spousal support payments awarded by family court on the ground that, as of the date of his application, he had tendered 13 consecutive monthly payments, more than double the amount of the calculated durational period@ set forth by the post divorce maintenance advisory durational guidelines. The support order Plaintiff challenged was issued in Family Court pursuant to Family Court Act ' 412. The Court observed that while the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration. DRL ' 236[B][5 a] [f] expressly states Athe court shall determine the duration of temporary maintenance by considering the length of the marriage. DRL ' 236[B][5 a] [g] further provides that temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first. The Family Court Act, on the other hand, does not relate the duration of spousal support to the length of the marriage. Rather, the Family Court Act provides that unless modified upon a showing of a substantial change in circumstances, any order of spousal support issued pursuant to Family Court Act ' 412. shall continue until the earliest of one of the following: a written or oral stipulation or agreement between the parties; the issuance of a judgment of divorce or other order in a matrimonial proceeding; or the death of either party (see FCA ' 412[10]). Here, Plaintiff failed to show a substantial change in circumstances warranting termination or modification of the spousal support order.
Construing the emancipation clause in the parties agreement Supreme Court finds that child was emancipated by his enrollment in the United States Naval Academy
In Denatale v. Denatale, 2021 WL 1096899 (Table), 2021 N.Y. Slip Op. 50247(U) (Sup Ct.,2021) the parties Stipulation of Settlement dated December 29, 2017 which was incorporated but did not merge into their Judgment of Divorce provided that the child support obligation would continue through the age of 22 even if the Children had completed college. The Stipulation provided, in part as follows at Article E: “The Husbands obligation to pay child support shall continue until the child attains the age of twenty two (22) regardless of whether a child is still in college or has completed college. Thus, by way of example, should Campbell graduate college at the age of 21, child support for her shall continue through age 22.” … Emancipation shall also include: Marriage (even though such a marriage may be void or voidable and despite any annulment of it); Permanent residence away from the residence of the Mother and the Father. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the mother and, hence, such a residence at boarding school, camp, or college is not an Emancipation Event; Death of the child (God forbid); Entry into the armed forces of the United States (provided that the Emancipation Event shall be deemed terminated and nullified upon discharge from such forces, and, thereafter, the period shall be the applicable period as if such an Emancipation Event by reason of the entry had not occurred); Engaging in full time employment upon and after the attaining by a child of 18 years of age....””Supreme Court held that the child was emancipated by his enrollment in the United States Naval Academy. The court cited as authority Beekman Ellner v. Ellner, 296 AD2d 404 (2d Dept. 2002), where the Appellate Division affirmed an order of the Family Court which terminated child support [s]ince the parties child enrolled in full time training duty at the U.S. Naval Academy at Annapolis and his life at Annapolis was largely controlled by the government, which also provided for the bulk of his material needs, he was clearly engaged in active military service to render him emancipated (citing 10 USC Sec 101[d][1]). Similarly, in Zuckerman v. Zuckerman, 154 AD2d 666 (2d Dept. 1989), the Appellate Division held that the parties son became emancipated when he entered West Point. There, the Appellate Division found that pursuant to 10 USC Sec 3075[b][2]1, upon entering West Point, the minor child is considered a member of the regular army and subject to extensive governmental control, which is inconsistent with a parent=s control and support of a child. The child attends West Point tuition free and is provided with room, board, health care, and monthly pay of $504.30, plus other allowances. Thus, he is self supporting and financially independent of his parents. Although the Stipulation here was clear that attendance at a college was not an emancipation event, it was also clear that enlistment in the military was one. The motion to terminate child support was granted as the parties son, was deemed emancipated.
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