March 1, 2021
Child Support Standards Chart Released
The Child Support Standards Chart (PDF) was released on
March 1, 2021. It may be downloaded at https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf
The 2021 poverty income guidelines amount for a single person as reported by the United States Department of Health and Human Services is $12,880 and the 2021 self-support reserve is $17,388. The combined parental income amount remains at $154,000.
Appellate Division, First Department
Support Magistrate properly imputed income to the father based on cash and in-kind support provided by his family, both prior to and after the filing of the petition
In Matter of Nannan L v Stephen L, --- N.Y.S.3d ----, 2021 WL 559146 (1st Dept.,2021) the Appellate Division affirmed an order which denied the father’s petition for a downward modification of his child support obligations. It held that the Support Magistrate properly imputed income to the father based on cash and in-kind support provided by his family, both prior to and after the filing of the petition (Family Ct Act § 413[1][b][5][iv][D] ), including payment for various in-patient drug treatment programs, medical and dental care, and other expenses. The father’s family also has been paying for him to live rent-free in a two-bedroom apartment on the Upper West Side of Manhattan and gave him a substantial monthly stipend for his personal use.
The Appellate Division held that Family Court did not err
in failing to conduct a separate hearing on the modification petition. At the
hearing on the violation petition, the court heard evidence of his financial
circumstances from the entry of the order of support through the filing of the
modification petition, and up until the date the hearing concluded. The father
was aware that in the event the court found that he willfully violated the
order of support, it likely would dismiss the downward modification petition
and a hearing would be unnecessary. The father’s counsel confirmed that all
relevant evidence relating to the modification petition had been presented to
the court in the context of the violation hearin
Appellate
Division, Third Department
Failure to satisfy statutory mandate of UCCJEA Requires Reversal. Family Offense Jurisdiction is not determined by UCCJEA
In Matter of Vashon H v Bret I, --- N.Y.S.3d ----, 2021 WL 624233, 2021 N.Y. Slip Op. 01103 (3d Dept.,2021) the Appellate Division held that Family Court failed to satisfy the procedural mechanisms required by the UCCJEA when a custody petition is pending in another state. After becoming aware of the Ohio proceeding, Family Court properly communicated with the Ohio court. The extent of these communications was unclear; however, they apparently resulted in the transmittance of an Ohio order to Family Court. Although the contents of the Ohio order strongly implied that the Ohio court intended to retain jurisdiction, as evidenced by its scheduling of the matter for trial, this did not absolve Family Court of its obligation to create a record of its communications and to provide that record to the parties. Family Court’s brief summary of its determination following the communication, which was not placed on the record in the presence of the parties, did not satisfy this statutory mandate. Moreover, although it was a permissible exercise of discretion for Family Court not to permit the parties to participate in its communication with the Ohio court , the court was then required to allow the parties an opportunity to present facts and legal arguments before it rendered a decision, which it failed to do. (See DRL§ 75-i(2)). It remitted for a new hearing
The Appellate Division also held that jurisdiction in the
context of a family offense petition is not determined by the UCCJEA, which
serves the limited purpose of enforcing orders of custody and visitation across
state lines (see Domestic Relations Law § 75[2]). Family Court and criminal
courts “have concurrent jurisdiction over any proceeding concerning acts which
would constitute” those delineated as both crimes and family offenses (Family
Ct Act § 812[1]). Additionally, although the majority of the acts alleged in
the family offense petition occurred in Ohio, Family Court’s jurisdiction is
not subject to the same geographic limitations as placed on that of the
criminal courts, as nothing “requires the predicate acts of a family offense to
have occurred in a particular county, state, or country in order for the Family
Court to possess subject matter jurisdiction” (Matter of Richardson v. Richardson,
80 A.D.3d 32, 42, 910 N.Y.S.2d 149 [2010]). Thus, Family Court’s jurisdiction
extended to cover the subject matter of the family offense petition, regardless
of the fact that the vast majority of the alleged acts were committed in Ohio.
Family Court should have entertained the family offense petition and,
accordingly, it reversed and remitted the matter for the proceedings.
Change of Circumstances requirement for custody modification circumvented when prior custody order provides satisfaction of certain conditions constitute necessary change in circumstances.
In Matter of Austin ZZ v Aimee A, --- N.Y.S.3d ----, 2021
WL 624156, 2021 N.Y. Slip Op. 01109 (3d Dept.,2021) the Appellate Division held
that while ordinarily, the party seeking to modify a prior order of custody
must first demonstrate that there has been a change in circumstances since
entry of the prior order that warrants an inquiry into the best interests of
the child and, if so, that modification of that prior order is necessary to
ensure the best interests of the child this requirement may, however, be
circumvented when the prior custody order provides that the satisfaction of
certain conditions will constitute the necessary change in circumstances.
Family Court was statutorily precluded from rendering abuse findings where Respondent was not biological father of the children
In Matter of Lazeria F, --- N.Y.S.3d ----, 2021 WL
624353, 2021 N.Y. Slip Op. 01096(3d Dept.,2021) Respondent Paris H. (mother)
was the mother of the five subject children – two daughters, a now-deceased
daughter, and two sons. Respondent Kaysaun I. (father) was the biological
father of the younger son and the younger daughter and resided with the mother
and the five children in the family home. The Appellate Division was reluctantly constrained to reverse Family
Court’s determination that the father severely abused the deceased child and
derivatively severely abused the older daughter and the older son. As the Court
has previously made clear, and as petitioner and the attorney for the child
conceded, unlike findings of abuse and neglect, which may be made against “any
parent or other person legally responsible for a child’s care” (Family Ct Act §
1012[a]), the current statutory language contained in Social Services Law §
384–b (8)(a)(I) only permits a finding of severe abuse to be made against a
child’s “parent.” Because he was not the biological father of these children,
Family Court was statutorily precluded from rendering such findings and it
was therefore, constrained to reverse
same. In a footnote the court urged the Legislature to expeditiously amend
Social Services Law § 384–b (8) to address the concerns it raised.
Court’s failure to consult with the child or directly ascertain his wishes as required by Family Ct. Act § 1089[d] did not warrant reversal of change of permanency goal where it heard extensive testimony regarding the child’s emotional state and best interests,
In Matter of Isayah R., 189 A.D.3d 1942 (3d Dept.,2021) respondent was the mother of a child (born in 2010) who had special needs. In May 2016, petitioner commenced a neglect proceeding against respondent, alleging that she was unable to provide appropriate supervision for the child due to ongoing substance abuse issues. The child was removed from respondent’s care in June 2016 and resided in a therapeutic foster home since that time. In May 2019 – at respondent’s request – psychologist Claude Schleuderer conducted a psychological evaluation of respondent, the child and the foster parents, after which he issued a report opining that “the best long-term solution [for the child was] ... an [o]pen [a]doption.” In connection with Schleuderer’s findings, petitioner filed a permanency report seeking to change the child’s permanency goal from reunification with respondent to placement for adoption. Following a permanency hearing, Family Court granted petitioner’s request, finding that “[a] permanency plan of placement for adoption” was in the child’s best interests. The Appellate Division agreed with with respondent that Family Court failed to conduct an age-appropriate consultation with the child prior to changing the permanency goal (see Family Ct. Act § 1089[d] ), but concluded that reversal was unnecessary in these circumstances. Pursuant to Family Ct. Act § 1089(d), Family Court must undertake an “age appropriate consultation with the child.” Although the statute does not require a personal consultation with the child, it does obligate the court to find “some age-appropriate means of ascertaining [the child’s] wishes.” Although Family Court did not speak with the child or directly ascertain his wishes, it heard extensive testimony from Schleuderer regarding the child’s emotional state and best interests, as well as his opinion about respondent’s ability to handle the child’s special needs. Schleuderer’s evaluation report, which was admitted into evidence during the hearing, noted the child’s feelings about his foster care placement and connection to the foster parents and emphasized that transferring the child to respondent’s care would be detrimental to the child’s long-term functioning. During the permanency hearing, the attorney for the child conveyed the child’s feelings about the “uncertainty of his future,” and one of the foster parents recounted certain questions the child had asked her in which he indicated his feelings about being adopted. Under these circumstances, the court’s failure to consult with the child or directly ascertain his wishes did not warrant reversal.
February 16, 2021
Appellate Division, Second Department
Since the court declined to sign the defendant’s prior order to show
cause, the defendant’s prior motion was neither made nor determined. A notice
for discovery and inspection is palpably improper if it is overbroad,
burdensome, fails to specify with reasonable particularity many of the
documents demanded, or seeks irrelevant or confidential information
In Lombardi v Lombardi, --- N.Y.S.3d ----, 2021 WL 262287, 2021 N.Y. Slip Op. 00426) the defendant filed an order to show cause seeking, inter alia, that the Supreme Court direct service of his motion, and pursuant to CPLR 3103(a) for a protective order striking the plaintiff’s notice for discovery and inspection. The court declined to sign the order to show cause. The defendant then moved, inter alia, for leave to reargue his prior motion, and, as additional relief, an order of preclusion pursuant to CPLR 3126 precluding plaintiff from offering certain evidence at trial. Supreme Court denied defendant’s motion for leave to reargue on the grounds that it was untimely and that the court did not misapprehend any facts. The court denied the remaining branches of the defendant’s motion. The Appellate Division held that the court should have considered, on the merits, the defendant’s motion for a protective order. Since the court declined to sign the defendant’s prior order to show cause, the defendant’s prior motion was neither made (see CPLR 2211) nor determined (see CPLR 2221[d][2]). Thus, there was no need for the defendant to seek leave to reargue the prior motion, and the court erred by, in effect, denying those branches of the defendant’s motion which were for a protective order and to impose sanctions on the ground that the defendant’s motion did not comply with CPLR 2221(d)(2) and (3).
The Appellate Division observed that CPLR 3101(a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.” However, “[a] party is not entitled to unlimited, uncontrolled, unfettered disclosure.” The Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper (see CPLR 3101[a]. A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information. Where the discovery demand is overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it. It found that the plaintiff’s notice for discovery and inspection was palpably improper in that it was overbroad and burdensome, sought irrelevant or confidential information, and failed to specify with reasonable particularity many of the documents demanded. Defendant’s motion which was pursuant to CPLR 3103(a) for a protective order striking the plaintiff’s notice for discovery and inspection should have been granted.
The Appellate Division held that Supreme Court
providently exercised its discretion in denying defendant’s motion pursuant to
CPLR 3126 to preclude the plaintiff from offering certain evidence at trial.
The defendant failed to make a clear showing that any failure to comply with
court-ordered discovery was willful and contumacious.
Plenary action required to seek to set aside the stipulation of settlement, incorporated but not merged into the judgment of divorce unless reformation is sought to conform the agreement with the intent of the parties, or where the matrimonial action is still pending and not terminated with entry of a judgment, or in certain circumstances where enforcement of child support is sought.
In Jagassar v Deonarine, --- N.Y.S.3d ----, 2021 WL
359472, 2021 N.Y. Slip Op. 00549 (2d Dept.,2021) a judgment of divorce, which
incorporated but did not merge the parties stipulation of settlement, was
entered on May 19, 2015. In March 2018, the defendant moved, inter alia, to
enforce certain provisions of the parties’ stipulation of settlement. The
plaintiff opposed the motion, arguing that the stipulation of settlement was
unconscionable, and cross-moved to vacate the stipulation of settlement. The
Supreme Court vacated the provisions of the stipulation of settlement
concerning equitable distribution and maintenance without a hearing on the
ground that those provisions “shock[ed] the conscience.” The court also denied
the defendant’s enforcement motion. The Appellate Division reversed and
remitted for a new determination. It held that under the circumstances
presented here, a plenary action was required to seek to set aside the
stipulation of settlement, which was incorporated but not merged into the
judgment of divorce. There are exceptions to this general rule, such as where
reformation of a separation agreement is sought to conform the agreement with
the intent of the parties, or where the matrimonial action is still pending and
was not terminated with entry of a judgment, or in certain circumstances where
enforcement of child support is sought (see Barany v. Barany, 71 A.D.3d 613).
None of these exceptions were applicable here.
As Family Ct Act § 580–706[e] does not specify how the tribunal shall notify the nonregistering party of the registration of a foreign support order CPLR 2103, governing the service of papers, is applicable.
In Matter of Laczko v Szoca, 2021 WL 359336 (2d
Dept.,2021) the petitioner, filed a petition in the Family Court, in 2019, to
vacate the registration of an order of support from a Hungarian court which had
been registered by the respondent in the Family Court in 2015 pursuant to the
Convention on the International Recovery of Child Support and Other Forms of
Family Maintenance (the Convention). The Support Magistrate, dismissed the
petition as untimely. The Appellate Division affirmed. It observed that a party
contesting a registered Convention support order shall file a contest not later
than thirty days after notice of the registration, but if the contesting party
does not reside in the United States, the contest must be filed not later than
sixty days after notice of the registration” (Family Ct Act § 580–707[b]). “If
the nonregistering party fails to contest the registered Convention support
order by the time specified ... the order is enforceable” (Family Ct Act §
580–707[c]). Pursuant to Family Court
Act article 5–B, “a foreign support order may be registered in this state by
sending” certain enumerated “records to the appropriate tribunal in this state”
(Family Ct Act § 580–602[a]; see Family Ct Act § 580–706[a]).” The tribunal
shall promptly notify the parties of the registration” (Family Ct Act §
580–706[e]). It held that as the Family Court Act does not specify how the
tribunal shall notify the nonregistering party of the registration of the
foreign support order the provisions of CPLR 2103, governing the service of
papers, are applicable. Pursuant to CPLR 2103(b)(2), “service by mail shall be
complete upon mailing; where a period of time prescribed by law is measured
from the service of a paper and service is by mail, five days shall be added to
the prescribed period”. The petition to vacate the registration of the
Hungarian support order was filed almost four years after the petitioner had
been served with the notice of registration. The petitioner did not dispute
that the notice of registration had been sent in 2015 to the address at which
he received mail in New York at that time, and as such, there was a rebuttable
presumption that he received the notice in 2015. The petitioner’s mere denial
of receipt was insufficient to rebut the presumption of receipt. Thus, the
Family Court properly denied the petitioner’s objection to the order, which
dismissed his petition to vacate the registration of the Hungarian order as
untimely (see Family Ct Act § 580–707[b]).
Appellate Division, Fourth Department
Dismissal of enforcement proceeding reversed where Court did not consider the statutory factors and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum (DRL § 76-f [2]).
In
Henshaw v Hildebrand, --- N.Y.S.3d ----, 2021 WL 404851, 2021 N.Y. Slip Op.
00653 (4th Dept., 2021) the Appellate Division agreed with the
father that the court erred in granting the motion to dismiss the enforcement
petition on the ground that the State of Texas was the appropriate forum. The
issue of inconvenient forum dismissal is addressed to Family Court’s discretion
after consideration of the statutory factors (Domestic Relations Law § 76-f
[2]). The court is required to consider the statutory factors and allow the
parties to submit information regarding these factors before determining that New
York is an inconvenient forum”. Here, the court failed to permit the father to
submit information concerning the statutory factors, and the record did not
indicate whether the court considered them; thus, the court erred insofar as it
granted the motion on that basis. In any event, it concluded that the court
erred in granting the motion inasmuch as the mother submitted no evidence in
support of the motion and failed to specify any statutory or other legal basis
for the requested relief.
Where matter
“involves an uncomplicated disposition or simple judgment for a sum of money
which speaks for itself,” the judgment may be entered by the clerk
In Jolley v Lando, --- N.Y.S.3d ----, 2021 WL 405216, 2021 N.Y. Slip Op. 00679 (4th Dept.,2021) the Appellate Division observed that CPLR 5016 (c) provides that a “[j]udgment upon the decision of a court or a referee to determine shall be entered by the clerk as directed therein. When relief other than for money or costs only is granted, the court or referee shall, on motion, determine the form of the judgment.” Where a matter “involves an uncomplicated disposition or simple judgment for a sum of money which speaks for itself,” the judgment may be entered by the clerk without prior submission to the court (Funk v Barry, 89 NY2d 364, 367 [1996]). As the prior order did not direct any party to settle or submit a judgment to the court, a judgment could be entered by the clerk without prior submission to the court. In addition, the second ordering paragraph of the prior order provided that defendant “shall pay to [p]laintiff the sum of $238,670 for equitable distribution pertaining to the Lindley, New York property; said money to be paid within 30 days.” That was simple directive for payment of a sum of money which speaks for itself, and thus a judgment on that amount could be entered by the clerk.
Under certain circumstances, the court may order an upward
modification of child support retroactive to a date prior to the filing of the
modification petition but they did not apply
In Matter of Oneida County DSS on behalf of Christman v
Bleau, --- N.Y.S.3d ----, 2021 WL 405796 (Mem), 2021 N.Y. Slip Op. 00763 (4th
Dept., 2021) although the Appellate Division agreed with petitioner that, under
certain circumstances, the court may order an upward modification of child
support retroactive to a date prior to the filing of the modification petition
(citing Matter of Oneida County Dept. of Social Servs. v Abu-Zamaq, 177 AD3d
1412, 1413 [4th Dept 2019]; Matter of Department of Social Servs. v Douglas D.,
226 AD2d 633, 634 [2d Dept 1996]; Matter of Monroe County Dept. of Social
Servs. v Campbell, 161 AD2d 1176, 1177 [4th Dept 1990]; see also Family Ct Act
§ 451), petitioner failed to present sufficient evidence supporting an upward
modification retroactive to a date earlier than that ordered by the Support
Magistrate. Moreover, contrary to petitioner’s contention, Family Court Act §
449 (2) did not permit the court to direct that the child support modification
be retroactive to the date the father was released from incarceration under the
circumstances of this case.
Family Court
Family Court Act §1091 motion by youth to return to foster care
denied where child failed to show a compelling reason to order his return to
foster care.
In
Matter of K.U., 135 N.Y.S.3d 803 (Family Court, 2021) the Family Court denied
the motion of the youth to return to foster care. It observed that Family Court
Act §1091, states that “a motion to return a former foster care youth under the
age of twenty-one, who was discharged from foster care due to a failure to
consent to continuation of placement if there is a compelling reason for such
former foster care youth to return to foster care”. It applies to any youth
under 21 who has been in foster care, who left foster care because they did not
consent to remain there, and now wants to return to foster care. Matter of
Jefry H., 102 A.D.3d 132, 138, 955 N.Y.S.2d 90 (2nd Dept. 2012) concerned a
youth who had been adjudicated a Person in Need of Supervision under FCA
Article 7. The Court overturned the trial court’s denial of the youth’s motion
to re-enter foster care after finding that the youth was a “former foster care
youth” within the meaning of FCA § 1091. The Court noted that the legislature’s
intent in creating article 10-B of the Family Court Act did not restrict the
reentry of youths to only child protective proceedings. A motion made pursuant
to this section must show by affidavit or other evidence that: (1) the former
foster care youth has no reasonable alternative to foster care; (2) the former
foster care youth consents to enrollment in and attendance at an appropriate
educational or vocational program ;(3) re-entry into foster care is in the best
interests of the former foster care youth; and (4) the former foster care youth
consents to the re-entry into foster care.” The Court found that K.U. failed to
show a compelling reason to order his return to foster care. He was
incarcerated at Rikers Island, facing several felony charges as an adult.
K.U.’s criminal defense attorney acknowledged that the jurist in the criminal
case was not granting K.U. youthful offender status. The Court did not have any
have information that K.U. could even be released from jail if it ordered his
return to foster care. Nor did the Court have information before it that a
residential treatment program is the actual plan for K.U. Thus, there was no
“compelling reason” to return to foster care placement within the meaning of
Family Court Act § 1091. It distinguished Jefry H. in that there the youth
presented facts that led the Court to conclude that there was a compelling
reason for him to return to foster care: the youth had no place to live and no
means of support.
