Recent Decisions and Legislation, August 2, 2023

 

August 2, 2023

Appellate Division, First Department

Age 29 Law allows unmarried children through age 29, regardless of financial dependence, to be covered under a parent’s group health insurance policy 

In B.D.,v. E.D.,--- N.Y.S.3d ----, 2023 WL 4770159, 2023 N.Y. Slip Op. 03971(1st Dept, 2023) the Appellate Division observed New York’s Age 29 Law, which was effective approximately one year before the Affordable Care Act, amended various sections of the State’s Insurance Law to “expand[ ] access to health insurance by allowing unmarried children through age 29, regardless of financial dependence, to be covered under a parent’s group health insurance policy.  Specifically, the Age 29 Law “expands access to health insurance through a COBRA-like benefit for young adults by requiring commercial insurers, non-profit corporations, and HMOs to offer an option to continue coverage for unmarried young adults through age 29, regardless of financial dependence, under a parent’s group health insurance policy. Under the Age 29 Law, a parent’s health insurance serves as the basis for coverage for an eligible adult child who has otherwise aged off of the parent’s policy.

Appellate Division, Second Department

Child Support Order reversed where Support Magistrate erred in failing to advise the pro se mother that she had “an absolute right to be represented by counsel at the hearing at her own expense and that she was entitled to an adjournment to retain the services of an attorney

In Moor v Moor, --- N.Y.S.3d ----, 2023 WL 4751946, 2023 N.Y. Slip Op. 03918 (2d Dept.,2023) the parties had previously agreed to share custody of the child and to waive an award of child support from each other. However, in October 2021, the father filed a petition seeking, inter alia, an award of child support from the mother given the change in circumstances since he had sole custody of the child since July 2020. The parties appeared by telephone before a Support Magistrate on February 3, 2022. The father appeared with counsel and the mother appeared pro se. the Support Magistrate, inter alia, in effect, granted the father’s petition and directed the mother to pay child support of $319.32 bi-weekly. Although the order contained language suggesting that the mother was advised of her right to seek counsel as required by Family Court Act § 433, the transcript of the hearing contained no proof that the mother was advised of this right or that she voluntarily and knowingly waived this right and proceeded without counsel.  Family Court, denied the mother’s objections and directed the mother to pay child support of $319.32 bi-weekly. The Appellate Division held that the Support Magistrate erred in failing to advise the mother that she had “an absolute right to be represented by counsel at the hearing at her own expense and that she was entitled to an adjournment to retain the services of an attorney. The Support Magistrate further erred in proceeding with the hearing without an explicit waiver of the right to counsel from the mother as there is no word or act in the record upon which the Family Court could have concluded that the mother explicitly waived that right. It remitted the matter to the Family Court for a new hearing and determination.

 

There is no express requirement to submit certified copies of birth certificates or death certificates in a SIJS proceeding under Family Court Act § 661(a).

In Matter of Anuar S.A.O. --- N.Y.S.3d ----, 217 A.D.3d 869, 2023 WL 4095927, 2023 N.Y. Slip Op. 03353 (2d Dept.,2023) Petitioner, a friend of the minor child’s family, commenced aproceeding to be appointed as the guardian of the child and subsequently moved for the issuance of an order enabling the child to petition the United States Citizenship and Immigration Services (USCIS) for special immigrant juvenile status. The Family Court dismissed the guardianship petition and denied the motion.  The Appellate Division held that the family court’s failure to conduct a hearing or consider the child’s best interests before dismissing the guardianship petition and denying the petitioner’s immigration-related motion was error requiring remittance. It held that contrary to the Family Court’s determination, there is no express requirement to submit certified copies of birth certificates or death certificates in a proceeding such as this under Family Court Act § 661(a). Since the court dismissed the petition without conducting a hearing or considering the child’s best interests, it remitted the matter to the Family Court for a new determination.

Appellate Division, Third Department

The rebuttable presumption that counsel fees shall be awarded to the less monied spouse, can be rebutted given the amount of the equitable distribution, maintenance, and substantial interim award.

In McGovern v McGovern, --- N.Y.S.3d ----, 2023 WL 4769188, 2023 N.Y. Slip Op. 03956 2023 WL 4769188 (3d Dept.,2023) Plaintiff (wife) and defendant ( husband) were married in 1997 and had two children (born in 1999 and 2002). In 2014, the husband abandoned the marital residence, but the parties reconciled until 2017, when the husband again left the marital residence, and the wife commenced this action for divorce. The wife thereafter moved for an order of temporary support, requesting temporary maintenance, child support, counsel fees, and a portion of the fee to hire a forensic accountant to review the husband’s finances. Based on the parties’ expenses, Supreme imputed an income of $300,000 to the husband and ordered that the husband pay the wife $2,000 a month in maintenance and $3,275.95 a month in child support. The court also ordered the husband to pay the wife $7,100 in counsel fees and $5,000 toward the retention of the wife’s forensic accountant. Following the trial, Supreme Court found that the pendente lite order was based on erroneous representations in the parties’ respective statements of net worth, imputed an income of $85,000 to the husband, and recalculated the child support and maintenance awards. The court awarded the wife the marital residence and ordered the husband to pay the wife a distributive award of $419,517.45 – equivalent to 45% of the value of his businesses, minus certain credits such as his overpayment of pendente lite child support and maintenance. The court also ordered him to pay child support for the youngest child until her emancipation. The Appellate Division affirmed.

 

The Appellate Division, inter alia,  rejected the wife’s argument that the value of her 45% distributive award should have been higher, as McGovern Enterprises should have been valued at $2,060,000, the sum of the appraised value of the buildings it owned, rather than the $1,280,666 valuation Supreme Court determined based on testimony and a report by the husband’s tax expert. Supreme Court found that the wife provided only the valuation of the buildings themselves, which did not equate to a valuation of McGovern Enterprises as a whole. Instead, the court relied on the tax expert’s testimony that, while McGovern Enterprises would recoup $1,984,000 in a hypothetical sale of its properties, it would incur $703,334 in taxes from such a sale, leaving the value of the business at the difference, $1,280,666. The expert’s calculations, accounting both for the appraised value of McGovern Enterprises’ buildings and the costs of liquidating these assets, painted a more complete picture of the business’s value than did the mere buildings’ appraised values. As the wife “presented no expert testimony that would support a different valuation,” and Supreme Court credited the expert’s report, the wife failed to prove that McGovern Enterprises was worth more than $1,280,666 

The Appellate Division rejected the wife’s request to reverse Supreme Court’s determination that the husband’s self-directed IRA, which included 970 Broadway, Albany was his separate property. Separate property includes “property acquired before marriage,” as well as “property acquired in exchange for ... separate property”. The testimony of the husband and the bookkeeper, which the Supreme Court found credible, showed that the husband’s self-directed IRA was established using funds transferred from an account he established in 2005, which itself contained funds from an account he created in 1983, before the parties’ marriage. While the husband did transfer money between his other accounts and 970 Broadway, the record evidence demonstrated that those sums were rent owed to 970 Broadway. Further, the husband’s testimony, as well as his bank records, showed that he made no contributions to his self-directed IRA during the marriage. Therefore, Supreme Court did not err in determining that his self-directed IRA, which included 970 Broadway’s properties, was the husband’s separate property, as he showed that the properties owned by 970 Broadway were acquired with premarital assets.

The wife challenged the Supreme Court’s determination that she was not entitled to maintenance, claiming that she should have been awarded $3,108 in monthly maintenance for eight years, retroactive to the date of commencement, based on the husband’s $300,000 imputed income and the marital standard of living. The record supported Supreme Court’s determination that the wife was not entitled to maintenance. The wife was employed at the time of trial, earning $76,000 a year with healthcare benefits, and she was awarded the marital residence, which was fully paid off other than a $100,000 line of credit taken out on the property by the parties. The husband’s imputed income was $85,000, and the evidence showed that he had taken a $200,000 loan from 970 Broadway to pay for the pendente lite maintenance. Based upon the Supreme Court’s proper consideration of the factors and the totality of the circumstances herein – including the distributive award of $419,517.45 – it did not abuse its discretion in declining to award maintenance to the wife.

Supreme Court found that, based on the husband’s imputed $85,000 yearly salary and the mother’s $76,000 yearly salary, the husband was responsible for $1,635.36 monthly in child support until the oldest child’s emancipation in May 2020, and, following her emancipation, $1,112.05 monthly for support of the youngest child. However, because the husband had paid his pendente lite child support obligation, premised on an improperly-imputed income of $300,000, until August 2021, well past the oldest child’s emancipation, the court determined that he was entitled to an $86,552.97 credit for child support. The court then found that this overpayment covered the husband’s obligation for both children’s college expenses but not for their unpaid medical expenses – $5,292.45. Based on these calculations, the court subtracted the credit from the wife’s distributive award and ordered the husband to pay the children’s unpaid medical expenses and $1,112.05 in monthly child support for the youngest child until her emancipation. Having reviewed the record evidence, it found no error in the court’s child support calculations or its decision to credit the husband’s child support o

The Appellate Division rejected the wife’s argument that  Supreme Court erred in declining to award her counsel fees. “Although there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse, in exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties positions. However, this presumption can be rebutted given the amount of the equitable distribution, maintenance, and substantial interim award). In light of the size of the wife’s distributive award, the fact that her yearly income was comparable to the husband’s, and the interim relief she was awarded, including an improperly high temporary maintenance award and fees for an expert witness she never called, Supreme Court did not abuse its discretion in denying the wife’s request for counsel fees.

Appellate Division, Fourth Department

Although there is authority to award a payor spouse credit for carrying costs on a marital residence,  where the husband resided in the marital residence during the pendency of the proceeding  there was no error in declining to award him credits for those payments.

In Lisowski v Lisowski, --- N.Y.S.3d ----, 2023 WL 4837709, 2023 N.Y. Slip Op. 04016 (4th Dept., 2023) the husband commenced this action in February 2018, and a temporary order dated August 14, 2018, required the husband “to pay all of the expenses he has paid throughout the marriage” except for the cellular telephone phone bills for the wife and the parties’ three children. The husband had been paying all of the household expenses and $300 per week to the wife since March 2018. The husband contended on his appeal, among other things,  that he should have been credited for the expenses that he paid during the pendency of the divorce action and that the court erred in computing the number of months for which he would receive retroactive credit for the $300 weekly payments to the wife. The Appellate Division concluded that the Referee, and by adoption, the court, did not err in declining to credit him for household expenses he paid during the pendency of the divorce. Although there is authority to award a payor spouse credit for carrying costs on a marital residence, the husband, here, resided in the marital residence during the pendency of the proceeding, and there was no error in declining to award him credits for those payments. Since there is authority to award a spouse retroactive credit for voluntary payments made before any temporary order was issued, the award related to “unallocated support” could be credited against the ultimate maintenance award. The Appellate Division concluded that the husband was entitled to a credit against his maintenance obligation for all of the $300 weekly payments he made to the wife.

Under the circumstances of this case, the AFC lacked standing to bring an appeal on behalf of the subject child. An AFC cannot, in most Family Court Act article 8 proceedings, unilaterally take an appeal where a parent or guardian who is an aggrieved party has not done so.

In Joey L.F. v. Jerid A.F., --- N.Y.S.3d ----, 2023 WL 4837130, 2023 N.Y. Slip Op. 04046 (4th Dept., 2023) the petitioner filed a family offense petition on behalf of her son (subject child) against the respondent. Respondent moved to dismiss the petition on the ground that it was facially insufficient. The Attorney for the Child (AFC) appealed from an order granting the motion. The Appellate Division concluded that under the circumstances of this case, the AFC lacked standing to bring an appeal on behalf of the subject child. It pointed out that generally speaking, the legislature has demonstrated its preference for natural guardians, such as petitioner, to represent their minor children in a proceeding. Given that preference, it concluded that an AFC cannot, in most Family Court Act Article 8 proceedings, unilaterally take an appeal where a parent or guardian who is an aggrieved party has not done so. In this case, the petitioner did not appeal even though it was her petition that was dismissed. The Court noted that there was no evidence that the petitioner had “an interest adverse to the” subject child that would warrant termination of her role as guardian in the proceeding, thereby permitting the AFC to bring an appeal on the child’s behalf (Bluntt, 291 A.D.2d at 113, 737 N.Y.S.2d 471). To conclude that the AFC has standing to appeal where the petitioner has not done so would effectively force a parent—the individual who originated the proceeding on the subject child’s behalf—to litigate a position that they have abandoned. This would, in some cases, override a parent’s reasonable decision-making authority. For instance, a parent who commenced a Family Court Act article 8 proceeding as the child’s guardian may decide that further litigation is unwise because, to substantiate the petition, the child would have to testify and be retraumatized in the process. In short, absent unusual circumstances not present here, an AFC cannot overrule the decision-making authority of a parent, the party the legislature prefers to act as the child’s guardian and take an appeal where the parent has not done so. Consequently, because the AFC lacked standing here, it dismissed the appeal.

 

July 26, 2023

A spouse is entitled to a credit for her contribution of separate property toward the purchase of the marital residence. While the wife did not provide a complete paper trail the only possible source for that money was the account that was set up by the wife’s father in his daughter’s name. Although billing records to support the wife’s counsel fee application was inadequate, given the husband's disruption, prolonging of the proceedings, and obstreperous behavior, the Appellate Division declined to reduce the counsel fee award.

In Yentis v Yentis, --- N.Y.S.3d ----, 2023 WL 4628521, 2023 N.Y. Slip Op. 03886 (1st Dept.,2023) the Appellate Division held, inter alia, that Supreme Court providently exercised its discretion in awarding the wife a separate property credit of $150,000 for the purchase of the marital apartment. It is well settled that a spouse is entitled to a credit for his or her contribution of separate property toward the purchase of the marital residence , including any contributions that are directly traceable to separate property . While the wife did not provide a complete paper trail documenting the source of the money used for the down payment and closing costs, the record supported the conclusion that the only possible source for that money was the premarital Paine Webber brokerage account that was set up by the wife’s father in his daughter’s name and into which the father had been contributing since she was a child.

  The Appellate Division found that imputing an additional $98,000 to the husband’s income for the purposes of calculating child support was not supported by the record. The court based the husband’s child support obligation on his 2015 tax return, but then imputed the additional $98,000 based on evidence that the husband took home approximately that amount in cash in 2014. However, the husband testified that he reported his cash earnings, as reflected on his tax return, and there was  no evidence to contradict this. It found that the husband’s income for CSSA purposes was $141,526 and that In view of the children’s reported expenses and comfortable living standard during the marriage, it was appropriate to calculate child support on total combined parental income of $295,009, resulting in the husband contributing $2,950 in monthly basic child support.

  

The Appellate Division found that the Court providently exercised its discretion in awarding the wife $125,000 in counsel fees. While it agreed with the husband that the billing summary submitted to support the wife’s counsel fee application was inadequate, given the Referee’s findings as to the husband and his counsel’s disruption of the proceedings, prolonging of the proceedings, and overall obstreperous behavior, it  declined to reduce the fee award.

  The wife was liable for 43% of the collateral mortgage on the marital apartment to which was used to secure a line of credit for the husband’s business. The wife’s financial contributions were explicitly factored into awarding her 43% of the value of the business.

Although the court accepted the father’s proof that he had been hospitalized for spinal  surgery it rejected his testimony that he was unable to work after being discharged from the hospital, and imposed a 6 month prison sentence concluding that there was no evidence that he was totally unable to work at all.

 In Benson v Sherman, -- N.Y.S.3d ----, 2023 WL 4002706, 2023 N.Y. Slip Op. 03277 (3d Dept.,2023) Family Court confirmed the Support Magistrate’s findings, and found that the father willfully violated the support order and imposed the recommended prison six-month sentence. Although the court accepted the father’s proof that he was hospitalized for back surgery between October and November 2021, it rejected his testimony that he was unable to work after being discharged from the hospital, concluding that, while he “might have some limitations as [to] the kind of work he [could] do,” there was no evidence that he was unable to work at all. The medical evidence confirmed that the father , who had undergone spinal surgery, was unable to work during his extended hospitalization and further demonstrates that he had significant physical limitations preventing him from performing manual labor following his discharge. He also remained under continuing care to address a serious infection. These factors, coupled with his efforts to obtain disability benefits and his potential eviction, speak to an inability to pay support during the relevant October 2021 through March 2022 time frame. The record was , however, devoid of proof that the father was only capable of obtaining employment involving physical labor, lacked other options in which to generate income, or attempted to find work accommodating his health limitations. The eviction proceedings are not probative of his ability to work and his application for Social Security disability benefits “does not preclude Family Court from determining that he was able to work in some capacity”. Moreover, his support obligation of $40 a month was minimal and no payments were made during this period. The Appellate Division agreed with Family Court’s determination “that the father’s proof was ‘clearly inadequate to meet his burden of showing an inability to pay that would defeat the prima facie case of willful violation’ ” It affirmed the order directing that he be incarcerated for six months for wilful violation of the support order. At the confirmation hearing, counsel successfully admitted evidence of medical records corroborating the father’s contention that he was hospitalized for approximately one month of the relevant time frame and had physical injuries limiting his work options. However, there was no indication from those records that he was totally unable to work in any manner.

Assuming arguendo that a manifestation determination hearing had been warranted, the failure to hold one did not render the PINS petition jurisdictionally defective. The jurisdictional requirements for the filing of a PINS petition are set forth in the Family Ct Act (see Family Ct Act §§ 732, 735[g][ii][A]-[C]), and the holding of such a hearing is not among them.

In  Matter of Jazmyne VV., --- N.Y.S.3d ----, 2023 WL 4002657, 2023 N.Y. Slip Op. 03275 (3d Dept.,2023) respondent’s school principal, filed a PINS petition alleging that respondent, then a sixth-grade student, was habitually truant, disobedient and beyond the control of a parent or other lawful authority. In April 2022, respondent waived her right to a fact-finding hearing and admitted on the record that she had been absent from school without an excuse approximately 30 to 40 times that year. Based upon that admission, Family Court adjudicated respondent a PINS and ultimately entered a suspended judgment with conditions on consent. The Appellate Division affirmed rejecting the argument that Respondent was entitled to, and should have received, a manifestation determination hearing to establish whether the behavior underlying the PINS petition was the result of any disability on her part (see 9 NYCRR 357.1[l]). Although respondent did not request this hearing, she argued that the failure to hold the hearing constituted a nonwaivable jurisdictional defect. In advancing such an argument, respondent relied upon 9 NYCRR 357.9(d), which indicates that, “[w]here the matter involves truancy and/or ungovernable behavior at school and the youth is a special education student, probation shall not refer the matter for [a PINS] petition unless a [m]anifestation [d]etermination hearing has been held by the Committee on Special Education ... and the school has provided such documentation to the probation department and the court that the student’s behaviors are not related to the student’s disability, thereby warranting court action” (emphasis added). The record, failed to demonstrate that respondent was a “special education student” prior to the filing of the petition. While it is true that an individualized accommodation plan, also known as a 504 plan, was created for respondent, this was not done until after the petition was filed. Moreover, the existence of a 504 plan alone does not necessarily mean that respondent was a special education student, given that a 504 plan may provide accommodations for “children who need regular (not just special) education” (Doe v. Knox County Bd. of Educ., 56 F.4th 1076, 1083 [6th Cir. 2023]; see 34 CFR § 104.33[b][1]. Even assuming arguendo that a manifestation determination hearing had been warranted, it was unpersuaded that the failure to hold one rendered the PINS petition jurisdictionally defective. The jurisdictional requirements for the filing of a PINS petition are set forth in the Family Ct Act (see Family Ct Act §§ 732, 735[g][ii][A]-[C]), and the holding of such a hearing is not among them.

  The Appellate Division rejected Respondents argument that the Probation Department failed to provide its case record to Family Court, thereby giving rise to a nonwaivable jurisdictional defect. In a PINS matter, the designated lead agency must maintain a written record of the diversionary services provided to the child, and this record “shall be made available to the court at or prior to the initial appearance” (Family Ct Act § 735[e]). Here, while there was some discussion at the initial court appearance as to whether the attorney for the child was entitled to review the Probation Department’s record and Family Court seemingly indicated that it had not actually reviewed the record, the transcript of the appearance does not reveal whether that record had been “made available to the court” on or prior to that date, which is all that is required by the pertinent statute (Family Ct Act § 735[e]). Compliance with this obligation is not included among the statutory jurisdictional prerequisites (see Family Ct Act §§ 732, 735[g][ii][A]-[C]).

  The Appellate Division also rejected Respondents respondent’s claim that the petition was jurisdictionally defective for failing to plead diligent efforts to provide diversion services and the grounds for concluding that judicial intervention was necessary. The petition adequately recited the diversion efforts undertaken and services provided, not merely in conclusory fashion but with specific reference to six different types of services and seven individual service providers who supported respondent over the four-month period of diversion. Despite these efforts, according to the petition, there was ongoing police intervention, hospital mental health evaluations and violence at respondent’s home. Contrary to respondent’s related argument, the documentation attached to the petition satisfied the requirements that the petition include the steps taken by the school district to improve respondent’s attendance and conduct (see Family Ct Act § 732[a][i]) and “the grounds for concluding that the education-related allegations could not be resolved absent the filing of a [PINS] petition” (Family Ct Act § 735[g][ii][C]).

July 19, 2023

Appellate Division, Third Department

Verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement. Initial email and the subsequent email correspondence also failed to establish that the parties reached an agreement

       In Matter of Eckert, --- N.Y.S.3d ----, 2023 WL 4002660, 2023 N.Y. Slip Op. 03270 (3d Dept.,2023) James Eckert (decedent) died intestate in December 2018. Petitioner (daughter) was the decedent's only surviving child. The respondent (wife) was decedent's surviving spouse, having married decedent in July 2018. In August 2020, the daughter commenced the first proceeding seeking letters of administration of the decedent's estate and the wife cross-petitioned seeking the same relief. The daughter subsequently commenced an action in Surrogate's Court seeking an order declaring the decedent and the wife's marriage null and void because the decedent lacked the mental capacity to marry the wife. The daughter later commenced a separate action in Supreme Court against the wife alleging conversion, undue influence, lack of mental capacity, unjust enrichment and constructive trust in relation to decedent's non-probate retirement accounts; that matter was ultimately assigned to Surrogate's Court, which referred the parties to alternative dispute resolution (ADR). The day after the ADR session, the daughter's counsel sent the wife's counsel an email (the initial email) “to follow up [on] the settlement reached at mediation,” which involved the wife paying the daughter $515,000, setting forth an outline of the terms of the alleged agreement and asserting that he would prepare a draft settlement agreement. The next day, the wife's counsel responded asking the daughter's counsel to “[l]eave the timing of payment open” and providing additional terms. A week later, the daughter's counsel sent a draft of the proposed settlement agreement. The wife's counsel responded three weeks later asserting that the wife could not settle on the proposed terms as liquidating decedent's retirement accounts would have “enormous” tax consequences. Soon after, the daughter moved to enforce the settlement that she claimed was memorialized in the parties’ email exchange. The wife opposed such relief, asserting that no settlement had been reached. Surrogate's Court issued a decision and order which, among other things, granted the daughter's motion and determined that the parties had entered into a binding settlement agreement. The Appellate Divison reversed. 

    The Appellate Division observed that to form a binding contract, “there must be a meeting of the minds, [so] that there is a manifestation of mutual assent [that is] sufficiently definite to assure that the parties are truly in agreement with respect to all material terms”. Importantly, to ensure that an agreement is enforceable as a stipulation of settlement, its terms must be placed on the record “in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys”.  Surrogate's Court erred in finding that a binding agreement was formed, as the parties did not mutually assent to all material terms. Verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement (see CPLR 2104) The initial email and the subsequent correspondence also failed to establish that the parties reached an agreement.  As such, the parties never reached the requisite meeting of the minds as to all material terms and a binding agreement was never formed The Court reminded the parties that, to be enforceable, stipulations of settlement require more than just an agreement among the parties. Once the parties to an active litigation reach an agreement, they must (1) place the material terms of such agreement on the record in open court, (2) reduce them to a court order which is then signed and entered or (3) contain them in a writing subscribed by the parties or their counsel (see CPLR 2104). 

In a Neglect proceeding under Family Ct Act § 1046[a][vi]) the out-of-court statements of siblings may properly be used to cross-corroborate one another. However, they must describe similar incidents in order to sufficiently corroborate their sibling’s out-of-court allegations.

In  Matter of Kashai E.--- N.Y.S.3d ----, 2023 WL 4482118, 2023 N.Y. Slip Op. 03784 (2d Dept.,2023) the Appellate Division reversed a finding of neglect against the father for committing acts of domestic violence against the mother in the children’s presence. At a fact-finding hearing, the petitioner relied solely on hearsay statements of the children, and the father did not testify. The Appellate Division observed that the trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding. Previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect” (Family Ct Act § 1046[a][vi]). The out-of-court statements of siblings may properly be used to cross-corroborate one another. However, such out-of-court statements must describe similar incidents in order to sufficiently corroborate the sibling’s out-of-court allegations. Here, the hearsay evidence presented by the petitioner at the fact-finding hearing was insufficient to permit a finding of neglect. The hearsay statement of one child that she witnessed the father “attacking her mother in the bedroom” failed to provide any detail as to the alleged domestic violence and was not corroborated by any other evidence of domestic violence in the record. The hearsay statements of the children describing an incident in which the father yelled outside the children’s home and “reached for” or “grabbed at” one of the children on their way inside, which the children described as “uncomfortable,” “weird,” and “confus[ing],” causing one of them to be “a little anxious” and the other to “start[ ] to cry,” without more, was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired. Furthermore, the children’s knowledge that the father legally possessed a firearm in another state was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired where there was no evidence that the father had threatened anyone with his firearm or otherwise connecting the firearm to the alleged incidents of neglect.

Where both parties were residing in Rhode Island but their Judgment of divorce contained a provision that Supreme Court would retain jurisdiction concurrently with the Family Court to enforce their stipulation of Supreme Court had personal jurisdiction over the defendant who opposed the plaintiff’s motion without raising an objection to jurisdiction.

  In Ritchey v Ritchey,  --- N.Y.S.3d ----, 2023 WL 4482190, 2023 N.Y. Slip Op. 03810 (2d Dept.,2023) the parties amended judgment of divorce amended February 1, 2011, incorporated, but did not merge, a stipulation of settlement dated September 4, 2008, in which the parties agreed to certain child support provisions and included a provision stating that the Supreme Court would retain jurisdiction concurrently with the Family Court to enforce the provisions of the parties’ stipulation of settlement. As of approximately 2016, both of the parties and all of their children were residing in the state of Rhode Island. By order to show cause dated November 18, 2020, the plaintiff moved, inter alia, to enforce the child support provisions of the so-ordered stipulation. The defendant opposed the motion on the merits, without raising an objection to jurisdiction. Thereafter, the plaintiff moved to modify the defendant’s child support obligation. In an order dated September 27, 2021, the Supreme Court denied both motions without prejudice to bringing them in the appropriate court in Rhode Island. The Appellate Division reversed and remitted for a determination on the merits. It held that the   Supreme Court had personal jurisdiction over the defendant because, among other things, the defendant appeared and opposed the plaintiff’s motion without raising an objection as to jurisdiction (see Family Ct Act § 580–201[a][2]). Under the circumstances of this case, the court had continuing jurisdiction to enforce its support order (Family Ct Act § 580–104[b][1]). To the extent that the court’s denial of the plaintiff’s motion was based upon the doctrine of forum non conveniens, it was improper for the court to apply that doctrine sua sponte, without the parties having had an opportunity to brief the issue.

July 12, 2023

Plaintiff’s request for an award of interim maintenance arrears was properly denied pursuant to the doctrine of res judicata where he plaintiff provided no explanation as to why this issue, which he alleged arose in April 2009, was not addressed at the parties’ trial later that year

In Savino v Savino, --- N.Y.S.3d ----, 2023 WL 4353596, 2023 N.Y. Slip Op. 03728 (2d Dept.,2023) in May 2013, the plaintiff moved, inter alia, to enforce certain equitable distribution provisions of the judgment of divorce. The Appellate Division held, inter alia, that  Supreme Court providently exercised its discretion in awarding the plaintiff interest on the distribution of the parties’ marital account. “Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an act of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion” (CPLR 5001[a]). “The exercise of the court’s discretion in determining the appropriate interest is governed by the particular facts in each case” (U.S. Bank, N.A. v. Peralta, 191 A.D.3d 924, 926, 142 N.Y.S.3d 568). Here, the record indicated that the defendant wilfully violated the referee’s amended decision and order dated October 28, 2010, by failing to distribute the contents of the account equally, and instead liquidating the account and denying the plaintiff access to his portion of the proceeds. Accordingly, an award of interest on the plaintiff’s portion of the proceeds was proper in this matter.

 

The Appellate Division held that the plaintiff’s request for an award of maintenance arrears was properly denied pursuant to the doctrine of res judicata. “[I]n the context of a matrimonial action, the Court of Appeals has ‘recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated but also to those that could have been litigated’ ” (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100, 810 N.Y.S.2d 96, 843 N.E.2d 723). The plaintiff provided no explanation as to why this issue, which he alleged arose in April 2009, was not addressed at the parties’ trial later that year.

If a party moving for disqualification was aware or should have been aware of the facts Iunderlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation

In Matter of Marotta v Marotta, ---- N.Y.S.3d ----, 2023 WL 4340297, 2023 N.Y. Slip Op. 03694 (2d Dept.,2023) the Appellate Division held that the  Family Court improvidently exercised its discretion in granting the mother’s motion which was to disqualify the father’s attorneys on the basis that the father’s current wife, the children’s stepmother, works as a paralegal in the law office that employed the father’s attorneys. It observed that where a party seeks to disqualify its adversary’s counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time. If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation. Further, where a motion to disqualify is made in the midst of litigation and the moving party knew of the alleged conflict of interest well before making the motion, it can be inferred that the motion was made merely to secure a tactical advantage. The mother was aware of the employment of the father’s current wife at the law firm representing the father since 2019. Accordingly, the mother’s failure to move to disqualify the father’s attorneys until April 2022 constituted a waiver of her objection to the father’s legal representation. In any event, the mother failed to demonstrate that the children will be prejudiced by the father being represented by his current attorneys. There was no evidence that during the course of her employment, the father’s current wife worked on the father’s case or that she otherwise communicated with the children about the case.

Appellate Division, Third Department

A change in circumstances that warranted a best interest hearing was demonstrated, two months after the initial custody award to the mother, where mother was using her award of custody to alienate the father from the child and refused, respond to the father’s reasonable requests for basic information

  In Matter of Joshua XX., v. Stefania YY., --- N.Y.S.3d ----, 2023 WL 4353660, 2023 N.Y. Slip Op. 03743 (3d Dept.,2023) the Appellate Division concluded that a change in circumstances that warranted a best interest hearing was demonstrated, two months after the initial custody award to the mother, by virtue of the testimony that the mother was using her award of custody to alienate the father from the child and had refused, on several occasions after January 2020, to respond to the father’s reasonable requests for basic information about which of her homes in Ulster County, Dutchess County and Queens County the child would be staying at during her custodial time at the height of the COVID–19 pandemic. There was also evidence that the father – who had previously lived in the basement apartment of the paternal great-grandmother’s home – had since moved to more suitable accommodations. As such, Family Court appropriately proceeded to a best interests review. The Court also found that there was  a sound and substantial basis in the record to support Family Court’s finding that the transfer of sole custody to the father would be in the child’s best interests.

Proposed relocation for the purpose of remarriage is a valid motive that should not be summarily rejected, at least where the over-all impact on the child would be beneficial

 

In Matter of Brian VV., v. Heather WW.,--- N.Y.S.3d ----, 2023 WL 4353604, 2023 N.Y. Slip Op. 03733 (3d Dept.,2023) the   Appellate Division held that the proposed relocation of a custodial parent provides the requisite change in circumstances required for Family Court to consider whether a modification of the existing custody order serves the best interests of the child. The party seeking to relocate, “bears the burden of establishing that the move is in the [child’s] best interests by a preponderance of the evidence” It rejected the argument of the mother and the attorney for the child that the father had an impermissible motive for relocation from Cortland to Long Island that necessitated dismissal of his petition. Proposed relocation for the purpose of remarriage is a valid motive that should not be summarily rejected, at least where the over-all impact on the child would be beneficial. (Matter of Tropea v. Tropea, 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145). That said, it found that Family Court’s conclusion that it would be in the child’s best interests to remain with the mother in Cortland County to be supported by a sound and substantial basis in the record.

Although Family Ct Act § 1055–a (b) provides for the enforcement of postadoption contact agreements, it does not provide a mechanism for the revocation of said agreements.

  In  Matter of Samuel S.--- N.Y.S.3d ----, 2023 WL 4353596, 2023 N.Y. Slip Op. 03728 (3d Dept.,2023) in 2019, petitioner surrendered her rights to her two sons (born in 2014 and 2016) and executed a judicial consent to their adoption. In conjunction with the surrender, Family Court approved a postadoption contact agreement allowing petitioner to have monthly visits with the children, access to the adoptive parents’ telephone number and address, the ability to send cards and gifts to the children and to be provided with short reports on the health, education and activities of the children, among other things. Petitioner filed a petition in March 2021, asking Family Court to revoke both the contact agreement and the judicial consent as to both of the children based on the pre-adoptive parents’ violation of the agreement. Family Court granted a motion by the attorney for the children to dismiss the petition, finding, inter alia, that it failed to state a cause of action inasmuch as Family Ct Act § 1055–a does not authorize the court to terminate or revoke a postadoption contact agreement, only to enforce it. The Appellate Division affirmed. It noted that Family Ct Act § 1055–a (b) provides that, if a child who is the subject of a postadoption contact agreement has not yet been adopted, any party to the agreement can file a petition seeking enforcement. Although Family Ct Act § 1055–a (b) provides for the enforcement of postadoption contact agreements, it does not provide a mechanism for the revocation of said agreements. Moreover, as to petitioner’s contention that the judicial consent to adoption should be revoked based upon the pre-adoptive parents’ failure to abide by the terms of the contact agreement, failure to abide by such an agreement “shall not be grounds for ... revocation of written consent to an adoption after that consent has been approved by the court” (Domestic Relations Law § 112–b [3]). As such, Family Court did not err in dismissing petitioner’s petition on the basis of failure to state a cause of action.

July 5, 2023

Appellate Division, First Department

Father who continually interfered with the children’s third-party providers ordered to pay for add-ons and to refrain from interfering with, harassing, or terminating the services of the children’s third-party providers, and prohibited from having any contact with the children’s current or prospective providers except to pay invoices

In Ader v Ader, --- N.Y.S.3d ----, 2023 WL 3828099, 2023 N.Y. Slip Op. 02961 (1st Dept.,2023) the Appellate Division affirmed an order which, inter alia, granted the motion of the attorney for the children to enforce the order requiring defendant father to pay for add-ons and to refrain from interfering with, harassing, or terminating the services of the children’s third-party providers, and prohibited the father from having any contact with the children’s current or prospective providers except to pay invoices, awarded the mother sole interim decision-making for the children’s add-on expenses, and directed the father to pay or reimburse those expenses within 10 days of submission, subject to reallocation at trial. It held that the court’s determinations regarding payments due and owing to the children’s current or prospective third-party providers had a sound and substantial basis in the record. Despite the terms of the parties’ prenuptial agreement and several court orders, the father continually interfered with the children’s third-party providers, such as tutors, by refusing to timely pay their fees or refusing to pay them at all. These actions by the father were contrary to the children’s best interests, as the third-party providers were necessary for the children’s emotional and educational well-being and the children had been working successfully with some of them for years. For the same reasons, there was a sound and substantial basis in the record for the court’s award to the mother of sole interim decision-making for the children’s add-on expenses and for the court’s directive that the father refrain from directly contacting or harassing current or potential third-party providers. The father had tried to interfere with the children’s tutors by sending them emails apparently designed to intimidate them, to the children’s detriment. Under the circumstances, the court properly decided that it was in the children’s best interests for the father to have no contact with any providers, including tutors, schools, and therapists, except to pay invoices. Moreover, before entering the order, the court heard from the parties—including the attorney for the children, who supported the mother's motion on her clients’ behalf—and explained, on the record, the reasoning for its decision. 

Appellate Division, Second Department

The remedy for any perceived inequities in the pendente lite award is a speedy trial.

In Khazaneh v Khazaneh, --- N.Y.S.3d ----, 2023 WL 4239722 (Mem), 2023 N.Y. Slip Op. 03547 (2d Dept.,2023) the Appellate Division affirmed an order which, inter alia, denied, in part, plaintiff wife’s motion for pendente lite relief insofar as it awarded her $17,000 per month of the requested $64,956 in interim maintenance and directed her to pay 30% of the carrying costs of the marital residence from that amount. The Appellate Division found no basis for disturbing the court’s award of temporary maintenance. It held that the wife’s remedy for any perceived inequities in the pendente lite award is a speedy trial. As maintenance awards are intended to include all basic living expenses, including housing costs, the court’s directing the wife to pay a proportionate amount of her maintenance income to cover a share of the carrying costs of the marital residence was not in error.

 

Appellate Divison, Fourth Department

As a general rule, the value of the marital residence should be fixed as of the time of trial.

In Jocoy v Jocoy, --- N.Y.S.3d ----, 2023 WL 4285087, 2023 N.Y. Slip Op. 03652 (4th Dept., 2023) the wife appealed from a judgment of divorce that, inter alia, directed defendant husband to pay child support of $1,300 per month and a net amount of $8,740 for retroactive child support, and directed him to pay plaintiff $19,174, representing her half of the marital value of the former marital residence. The Appellate Division rejected plaintiff’s contention that the court erred in calculating defendant’s separate property credit with respect to the marital residence. Defendant purchased the residence prior to the marriage, and less than three years after the marriage, title to the residence was transferred into the parties’ joint names and the mortgage was refinanced. The court did not abuse its broad discretion in calculating defendant’s separate property credit by determining his equity in the residence as of the time of the marriage. However, it found that the court abused its discretion in determining the value of the marital residence by using the valuation date as of the commencement of the action rather than the valuation as of the time of trial. As a general rule, the value of the marital residence should be fixed as of the time of trial. It modified the judgment accordingly.

Where the court deviated from the presumptive child support award in part on the ground that the child shared the residences of the parents, the shared custody arrangement is not a proper basis for downward deviation from the presumptive support obligation.

  In Wagner v Wagner, --- N.Y.S.3d ----, 2023 WL 4284251, 2023 N.Y. Slip Op. 03593(4th Dept.,2023) the Appellate Division, inter alia,  rejected plaintiffs argument on appeal that he was entitled to summary reversal on the ground that he has been denied his right to effective appellate review because portions of the trial testimony could not be transcribed due to malfunctions of the audio recording system. The Appellate Division had previously reversed an order denying plaintiff’s motion for a reconstruction hearing and remitted the matter for such a hearing to “reconstruct[ ], if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed” (Wagner v. Wagner, 210 A.D.3d 1515, 1515, 176 N.Y.S.3d 826 [4th Dept. 2022]). On this appeal, the parties submitted a statement of settlement by Supreme Court purporting to reconstruct the missing testimony. In light of the availability of that alternative method to provide an adequate record, summary reversal was not warranted.

The Appellate Division, inter alia,  agreed with defendant that the court erred in deviating from the presumptive child support award pursuant to the Child Support Standards Act (CSSA). Although the court deviated from the presumptive child support award in part on the ground that the child shared the residences of the parents, the shared custody arrangement was not a proper basis for downward deviation from the presumptive support obligation.

Inasmuch as child support is determined by the parents’ ability to provide for their children rather than their current economic situation the Support Magistrate properly considered the PPP monies in imputing income to the father.

In Matter of Houck v Houck,  --- N.Y.S.3d ----, 2023 WL 4284852, 2023 N.Y. Slip Op. 03624 (4th Dept., 2023) the Appellate Division rejected appellants argument that the Support Magistrate erred in imputing income to him for child support purposes based upon money he received from the federal Paycheck Protection Program (PPP) in 2021. A support magistrate may impute income based on a party’s employment history, future earning capacity, educational background, or money received from friends and relatives. The record established that the father’s business suffered a temporary downturn due to the COVID-19 pandemic and that the PPP monies brought his income for 2021 back up to an amount that was generally consistent with what it had been prior to the pandemic. Inasmuch as child support is determined by the parents’ ability to provide for their children rather than their current economic situation the Support Magistrate properly considered the PPP monies in imputing income to the father.

July 1, 2023

Family Court Act § 659, titled Consideration of law allowing gender-affirming care, was added effective June 25, 2023.

§ 659. Consideration of law allowing gender-affirming care

1. A law of another state that authorizes a child to be removed from their parent or guardian based on the parent or guardian allowing their child to receive gender-affirming care shall not be enforced or applied in a case pending in a court in this state.

2. No court in this state shall admit or consider a finding of abuse based on the parent or guardian allowing their child to receive or seek gender-affirming care as evidence in any proceeding with respect to that parent or guardian and any of their children, unless such conduct would constitute abuse under the laws of this state if it occurred in this state.

(Laws of 2023, Ch. 143, § 1, effective June 25, 2023.)

 

Supreme Court of the United States

The Supreme Court declined to disturb the Fifth Circuit’s conclusion that the Indian Child Welfare Act (ICWA) is consistent with Congress’s Article I authority.

In Haaland v. Brackeen, --- S.Ct. ----, 2023 WL 4002951 (Supreme Court of the United States, 2023) the Petitioners—a birth mother, foster and adoptive parents, and the State of Texas—filed this suit in federal court against the United States and other federal parties. Petitioners challenged ICWA as unconstitutional on multiple grounds. Several Indian Tribes intervened to defend the law alongside the federal parties The District Court granted petitioners’ motion for summary judgment on their constitutional claims, and the en banc Fifth Circuit affirmed in part and reversed in part. The Fifth Circuit concluded that ICWA does not exceed Congress’s legislative power, that § 1915(c) does not violate the nondelegation doctrine, and that some of ICWA’s placement preferences satisfy the guarantee of equal protection. The Fifth Circuit was evenly divided as to whether ICWA’s other preferences—those prioritizing “other Indian families” and “Indian foster home[s]” over non-Indian families—unconstitutionally discriminate on the basis of race, and thus affirmed the District Court’s ruling that these preferences are unconstitutional. As to petitioners’ Tenth Amendment arguments, the Fifth Circuit held that § 1912(d)’s “active efforts” requirement, § 1912(e)’s and § 1912(f)’s expert witness requirements, and § 1915(e)’s recordkeeping requirement unconstitutionally commandeer the States. And because it divided evenly with respect to other challenged provisions (§ 1912(a)’s notice requirement, § 1915(a) and § 1915(b)’s placement preferences, and § 1951(a)’s recordkeeping requirement), the Fifth Circuit affirmed the District Court’s holding that these requirements violate the Tenth Amendment.

The Supreme Court observed that the case involved three separate child custody proceedings governed by the Indian Child Welfare Act (ICWA), a federal statute that aims to keep Indian children connected to Indian families. ICWA governs state court adoption and foster care proceedings involving Indian children. Among other things, the Act requires the placement of an Indian child according to the Act’s hierarchical preferences, unless the state court finds “good cause” to depart from them. 25 U.S.C. §§ 1915(a), (b). Under those preferences, Indian families or institutions from any tribe (not just the tribe to which the child has a tie) outrank unrelated non-Indians or non-Indian institutions. Further, the child’s tribe may pass a resolution altering the prioritization order. § 1915(c). The preferences of the Indian child or her parent generally cannot trump those set by statute or tribal resolution. In involuntary proceedings, the Act mandates that the Indian child’s parent or custodian and tribe be given notice of any custody proceedings, as well as the right to intervene. §§ 1912(a), (b), (c). Section 1912(d) requires a party seeking to terminate parental rights or to remove an Indian child from an unsafe environment to “satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family,” and a court cannot order relief unless the party demonstrates, by a heightened burden of proof and expert testimony, that the child is likely to suffer “serious emotional or physical damage” if the parent or Indian custodian retains custody. §§ 1912(d), (e). Even for voluntary proceedings, a biological parent who gives up an Indian child cannot necessarily choose the child’s foster or adoptive parents. The child’s tribe has “a right to intervene at any point in [a] proceeding” to place a child in foster care or terminate parental rights, as well as a right to collaterally attack the state court’s custody decree. §§ 1911(c), 1914. The tribe thus can sometimes enforce ICWA’s placement preferences against the wishes of one or both biological parents, even after the child is living with a new family. Finally, the States must keep certain records related to child placements, see § 1915(e), and transmit to the Secretary of the Interior all final adoption decrees and other specified information, see § 1951(a).

 The Supreme Court declined to disturb the Fifth Circuit’s conclusion that ICWA is consistent with Congress’s Article I authority. It pointed out that Congress’s power to legislate with respect to Indians is well established and broad.  Petitioners contended that ICWA impermissibly treads on the States’ traditional authority over family law. The Court found that when Congress validly legislates pursuant to its Article I powers, the Court “has not hesitated” to find conflicting state family law preempted, “[n]otwithstanding the limited application of federal law in the field of domestic relations generally.” And the Court has recognized Congress’s power to displace the jurisdiction of state courts in adoption proceedings involving Indian children. Petitioners contended that no source of congressional authority authorizes Congress to regulate custody proceedings for Indian children. They suggested that the Indian Commerce Clause, for example, authorizes Congress to legislate only with respect to Indian tribes as government entities, not Indians as individuals. It rejected this argument. The  Court’s holding more than a century ago that “commerce with the Indian tribes, means commerce with the individuals composing those tribes,” rendered that argument a dead end. Petitioners also asserted that ICWA takes the “commerce” out of the Indian Commerce Clause because “children are not commodities that can be traded.” This point, while rhetorically powerful, ignored the Court’s precedent interpreting the Indian Commerce Clause to encompass not only trade but also other Indian affairs. Petitioners next argued that ICWA cannot be authorized by principles inherent in the Constitution’s structure because those principles “extend, at most, to matters of war and peace.” However, petitioners made no argument that takes the Court’s cases on their own terms. The Court has referred generally to the powers “necessarily inherent in any Federal Government” and has offered non-military examples, such as “creating departments of Indian affairs.” Petitioners next observed that ICWA does not implement a federal treaty. However, Congress did not purport to enact ICWA pursuant to its treaty power and the Fifth Circuit did not uphold ICWA on that rationale. Finally, petitioners criticized the Court’s precedent as inconsistent with the Constitution’s original meaning, but they neither asked the Court to overrule the precedent they criticized nor tried to reconcile their approach with it. If there are arguments that ICWA exceeds Congress’s authority as precedent stands today, petitioners did not make them here. The Court rejected the Petitioners’ anticommandeering challenges, which addressed three categories of ICWA provisions.  The Court did not reach the merits of the petitioners’ two additional claims, an equal protection challenge to ICWA’s placement preferences and a non-delegation challenge to § 1915(c), the provision allowing tribes to alter the placement preferences, because no party before the Court had standing to raise them. (994 F.3d 249, affirmed in part, reversed in part, vacated and remanded in part.)

 

Appellate Divison, Third Department

Father properly committed to jail where his medical evidence spoke to an inability to pay support but the record was devoid of proof that he was only capable of obtaining employment involving physical labor, lacked other options in which to generate income, or attempted to find work accommodating his health limitations.

In Matter of Benson v Sherman, --- N.Y.S.3d ----, 2023 WL 4002706, 2023 N.Y. Slip Op. 03277 (3d Dept.,2023) the Appellate Division affirmed an order of the Family Court which held the respondent in willful violation of a prior order of support and committed the respondent to jail for six months. Under Family Ct Act § 437, a parent is presumed to have sufficient means to support his or her child until the age of 21. The failure to pay support as required constitutes prima facie evidence of a willful violation.  The father’s proof was ‘clearly inadequate to meet his burden of showing an inability to pay. (Family Ct Act § 454[3][a]) The medical evidence confirmed that the father was unable to work during his extended hospitalization and further demonstrated that he had significant physical limitations preventing him from performing manual labor following his discharge. He also remained under continuing care to address a serious infection. These factors, coupled with his efforts to obtain disability benefits and his potential eviction, spoke to an inability to pay support during the relevant October 2021 through March 2022 time frame. However, the record was devoid of proof that the father was only capable of obtaining employment involving physical labor, lacked other options in which to generate income, or attempted to find work accommodating his health limitations. Eviction proceedings against him were not probative of his ability to work and his application for Social Security disability benefits did not preclude Family Court from determining that he was able to work in some capacity. Moreover, the support obligation of $40 a month was minimal and no payments were made during this period. 

June 14, 2023

Appellate Division, Second Department

On counsel fee application under DRL §238 plaintiff was  required to submit itemized billing statements as proof of the attorneys’ fees incurred, to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the “extent and value of [the] services” rendered. A movant may not meet his or her burden on a motion by submitting evidence in reply.

   In Yakobowicz v Yakobowicz, --- N.Y.S.3d ----, 2023 WL 3856275, 2023 N.Y. Slip Op. 03044 (2d Dept.,2023) the parties 2014 a stipulation of settlement required the plaintiff to direct the trustee of their apartment in Israel to transfer title to the apartment to the defendant as part of her distributive award. Their 2014 judgment of divorce incorporated, but did not merge, the stipulation. The defendant moved, inter alia, to hold the plaintiff in contempt based upon, among other things, his failure to transfer title to the apartment to her. By order dated November 2, 2016, the Supreme Court granted the defendant’s renewed motion for interim counsel fees to the extent of awarding the defendant interim attorneys’ fees of $25,000 without prejudice to further application for additional sums. In August 2017, the defendant moved to hold the plaintiff in contempt for failing to pay the $25,000 interim attorneys’ fees award. Supreme Court, referred the motion to the hearing on defendant’s prior motion to hold the plaintiff in contempt. In August 2018, the Appellate Division affirmed the order granting defendant’s renewed motion to the extent of awarding her $25,000 in interim attorneys’ fees. In 2019 Supreme Court held the plaintiff in contempt for failing to direct the trustee to transfer title to the apartment to the defendant and for failing to pay the interim attorneys’ fees award, while permitting him to purge the contempts, which he did. In October 2019, the defendant moved, inter alia, pursuant to DRL 238 for an award of more than $200,000 in attorneys’ fees relating to her attempts to enforce the judgment of divorce, The parties  stipulated that her attorneys’ fee application could be decided without a hearing. Supreme Court granted defendant’s motion to the extent of awarding $50,000.

The Appellate Division observed that the defendant sought more than $200,000 in attorneys’ fees for pursuing the enforcement proceedings, but failed to include itemized billing for a significant portion of the attorneys’ fees sought. Contrary to the defendant’s contention, she was required to submit itemized billing statements as proof of the attorneys’ fees incurred, both to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the “extent and value of [the] services” rendered particularly considering that the parties agreed to have her attorneys’ fee application decided without a hearing. The Supreme Court properly rejected her attempt to remedy this issue by submitting the missing statements in reply, since a movant may not meet his or her burden on a motion by submitting evidence in reply. While the defendant omitted itemized billing statements covering the early portion of the enforcement proceedings from her moving papers, she nonetheless included statements for a nearly two-year period leading up to the motion. The plaintiff correctly contended that, under the circumstances, the defendant was not entitled to the compound interest charges contained in those statements. Some unknown portion of those interest charges related to attorneys’ fees contained in the missing statements, which were not recoverable. In any event, interest is not part of [a legal] fee, but rather compensation for delay in payment of the fee . The Appellate Division held that Supreme Court improvidently exercised its discretion in awarding only $50,000 in attorneys’ fees to the defendant, the nonmonied spouse. The defendant’s attorneys billed nearly $100,000 in hourly fees and costs for services rendered during the period reflected in the billing statements submitted with the moving papers, not including interest charges. Moreover, the defendant pursued the enforcement proceedings because of the plaintiff’s failure to comply with the judgment of divorce, and the court held him in contempt for his noncompliance. While the court found that the plaintiff was primarily at fault, it determined that the defendant’s actions “partly contributed to the excessively lengthy litigation.” However, the record did not indicate that the defendant’s actions materially increased the cost of litigation for the parties. Contrary to the plaintiff’s contention, the defendant was not prohibited as a matter of law from recovering attorneys’ fees relating to her applications. Finally, this Court’s review of the itemized entries in question did not reveal any significant number of hours billed that are plainly unrelated to the enforcement proceedings, despite the plaintiff’s assertions to the contrary. Under the circumstances, the Court concluded that the defendant demonstrated entitlement to $96,243.79 in attorneys’ fees in her moving papers. The plaintiff was entitled to a credit in the amount of $25,000 for the interim attorneys’ fee award previously paid.

Appellate Divison, Third Department

One family-one judge rule (22 NYCRR 205.3[c][6]) speaks to the assignment of particular cases within a court, and not whether the venue of a proceeding is proper.

In Matter of Awawdeh v Awawdeh, --- N.Y.S.3d ----, 2023 WL 3872165, 2023 N.Y. Slip Op. 03062 (3d Dept.,2023) the parties separated in 2019, at which time a divorce proceeding was commenced in Saratoga County. In 2021, the petitioner commenced a family offense proceeding in Washington County, where she had moved, and alleged that the respondent committed various family offenses. Respondent moved to dismiss the amended petition for failure to state a cause of action or, alternatively, on the basis that the filing of the amended petition in Washington County violated 22 NYCRR 205.3(c)(6). Family Court denied the motion. The Appellate Division observed that relying on what is known as the one family-one judge rule (see 22 NYCRR 205.3[c][6]), the respondent contended that the amended petition should have been dismissed with leave to refile in Saratoga County. The one family-one judge rule provides that “[m]ultiple proceedings involving members of the same family shall be assigned to be heard by a single judge to the extent feasible and appropriate” (22 NYCRR 205.3[c][6]). This rule, however, speaks to the assignment of particular cases within a court, and not whether the venue of a proceeding is proper, which is the essence of the respondent’s contention. Even if the one family-one judge rule governed the venue of proceedings, it also applies “to the extent feasible and appropriate” (22 NYCRR 205.3[c][6]). Notwithstanding the pending divorce proceeding in Saratoga County, the petitioner resided in Washington County when she commenced this family offense proceeding. Furthermore, the respondent does not dispute that Washington County could be considered an appropriate venue for the proceeding. It held that under the circumstances of this case, the respondent’s reliance on the one family-one judge rule as a basis for dismissal of the amended petition Kass unavailing.

  Respondent also took issue with the fact that the petitioner never explicitly alleged aggravated harassment in the second degree in the amended petition. Although this family offense was not specifically pled, the factual allegation forming the basis of the Family Court’s finding was sufficiently pled and the hearing proof was sufficient to make out a prima facie case on this family offense. In view of the foregoing, and noting that the respondent was able to defend himself against this factual allegation, any failure to explicitly plead aggravated harassment in the second degree did not warrant reversal.

 

A Lincoln hearing is the preferred method for ascertaining the child’s wishes. The wishes of this soon-to-be 16–year–old child, although not determinative, should have been considered. It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing is to ascertain a child’s preferences and concerns.

In Matter of Samantha WW v Malek XX, --- N.Y.S.3d ----, 2023 WL 3872128, 2023 N.Y. Slip Op. 03052 (3d Dept.,2023) the parties were the parents of the child (born in 2005). In 2017, the stipulated to an order of custody in which the mother and the father had joint legal custody of the child with the father having primary physical custody. In 2020, the mother filed a modification petition seeking primary physical custody of the child. During a fact-finding hearing, at the close of the mother’s proof, the mother and the attorney for the child requested that Family Court conduct a Lincoln hearing of the child. Family Court declined to conduct such a hearing, stating that it presumed the child’s position is that he prefers to reside with the mother in Florida and granted the father’s motion to dismiss on the ground that the mother failed to establish a change in circumstances. The Appellate Division held that while not determinative, the preferences of an older and more mature child are relevant in determining whether a change in circumstances exists and that Family Court abused its discretion in denying the attorney for the child’s request for a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. While the determination of whether to conduct a Lincoln hearing lies within Family Court’s discretion, it is indeed the preferred method for ascertaining the child’s wishes. At the time of the hearing, the child was six days shy of being 16 years old and the mother’s primary argument in support of her petition was that the child preferred to reside with her in Florida. A Lincoln hearing would have provided the court with significant pieces of information it needed to make the soundest possible decision. The wishes of this soon-to-be 16–year–old child, although not determinative, should have been considered, including any insight he may have provided as to the current status of his relationship with each parent. It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing “is to ascertain a child’s preferences and concerns. Further, the record was bereft of any articulation or explanation for Family Court’s decision not to conduct a Lincoln hearing, although it assumes the court decided – wrongly, in its opinion – that it was unwarranted. It concluded that a Lincoln hearing was called for under these circumstances and remitted the matter to Family Court to conduct a Lincoln hearing, and any appropriate hearing following same.

Family Ct Act § 1062 permits a child’s parent to seek an order terminating the child’s out-of-home placement. Family Court has discretion to determine whether a hearing is necessary to resolve that question. Standing alone the mother assertion that she had completed or otherwise continued to successfully engage in all services required of her did not compel termination of the placement.

  In Matter of Eli KK., --- N.Y.S.3d ----, 2023 WL 3872123, 2023 N.Y. Slip Op. 03061(3d Dept.,2023) both children were removed from the mother’s care in March 2021, on her consent, and placed in the custody of petitioner. The mother later admitted to neglecting the children. In August 2021, Family Court continued the placement of the children and imposed specified conditions upon the mother. In March 2022, petitioner conducted an unannounced home visit during the mother’s visitation with the younger child and discovered marihuana and drug paraphernalia within reach of the younger child. Petitioner then obtained a temporary order suspending contact between the mother and the younger child. Shortly thereafter, the mother moved, pursuant to Family Ct Act § 1062, to terminate the children’s out-of-home placements. Petitioner opposed, asserting that the alleged completion of services was an insufficient ground for such a motion and citing both the March 2022 incident and the fact that visitation with the older child had still not progressed from therapeutic visits. The mother appealed, arguing that it was an abuse of discretion to deny her motion without a hearing. The Appellate Division affirmed. It noted that Family Ct Act § 1062 permits a child’s parent, among others, to seek an order terminating the child’s out-of-home placement. The paramount concern on such a motion is whether the present placement continues to serve the purpose of Family Ct Act article 10 that is, protecting children from injury or mistreatment and “helping to safeguard their physical, mental, and emotional well-being– and the movant must establish that the return of the child protects these interests. Family Court is vested with the discretion to determine whether a hearing is necessary to resolve that question (see Family Ct Act § 1064) As grounds for the return of the children (see Family Ct Act § 1062[c]), the mother asserted that she had completed or otherwise continued to successfully engage in all services required of her. Standing alone, this did not compel termination of the placement. Further, following the March 2022 incident, the mother was ordered to engage in additional services, upon her consent. It was also undisputed that the mother’s visitation with each child was still required to be in a supervised setting. With respect to the younger child, the requirement of supervision was a recent regression. With respect to the older child, the mother acknowledged that certain of petitioner’s concerns were not being adequately addressed by her then-current counselor, and a component of the subject stipulation was that she would be connected with a new provider. In light of the foregoing, and considering Family Court’s familiarity with the parties and this neglect proceeding, there was no abuse of discretion in the court’s decision to deny the mother’s motion without a hearing.

 

Appellate Divison, Fourth Department 

Supreme Court erred in awarding the wife maintenance above the presumptive amount under DRL § 236 (B) (6) and in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in DRL § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors.

  In Renzi v Renzi, --- N.Y.S.3d ----, 2023 WL 3912644, 2023 N.Y. Slip Op. 03092 (4th Dept., 2023) the Defendant husband appealed from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $5,700 per month in maintenance until the husband reaches the age of 67. Although the judgment was entered upon the husband’s default and no appeal lies from a judgment entered on default, the appeal brings up for our review matters which were the subject of the contest before the court, i.e., the maintenance award. The Appellate Division held that Supreme Court erred in awarding the wife maintenance above the presumptive amount under Domestic Relations Law § 236 (B) (6) without following the requirements of that statute, and erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in section 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). It observed that where there is a deviation from the presumptive amount reached by application of the relevant formula, the court should explain the reasons for that deviation. It must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance. The court did not state what it found the wife’s income to be or set out the presumptive amount of maintenance owed under the statutory formula. It failed to “set forth the factors it considered and the reasons for its decision in writing or on the record” (DRL § 236 [B] [6] [d] [3]), and therefore “failed to show that it considered any of the factors enumerated in section 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award.  It remitted the matter to Supreme Court to determine the amount and duration of maintenance, if any, after setting forth all relevant factors that it considered in making its decision (Domestic Relations Law § 236 [B] [6] [e] [1], [2]; [f] [2]).

 

Fourth Department holds that oral stipulation was not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). The First and Second Departments have held differently. The Third Department has agreed with its position.

           In Cole v Hoover, --- N.Y.S.3d ----, 2023 WL 3914034, 2023 N.Y. Slip Op. 03103 (4th Dept., 2023) plaintiff, the former wife of defendant, sought vacatur of the judgment of divorce and a judgment declaring that the parties’ oral stipulation was “invalid and unenforceable.” Supreme Court denied her motion for summary judgment on the first cause of action, alleging that the oral stipulation was invalid because it did not comply with Domestic Relations Law § 236 (B) (3). The Appellate Division reversed. It held that the parties’ oral stipulation was not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). The statute unambiguously provides that, in order for an agreement regarding maintenance or a distributive award “made before or during the marriage” to be valid and enforceable in a matrimonial action, the agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded”. It has repeatedly held that oral stipulations do not comply with the statute. It noted that although the First and Second Departments have held differently the Third Department has agreed with its position, thus creating an even split at the Appellate Division level on that issue. It noted that the Court of Appeals has made it clear that there is “no exception” to the statute’s requirements (Matisoff v. Dobi, 90 N.Y.2d 127, 135 [1997]). 

  The Appellate Division held that Supreme Court erred in denying the motion on the ground that plaintiff ratified the oral stipulation. The proposition that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) could be upheld if ratified by the parties was implicitly rejected by the Court of Appeals in Matisoff. In that case, the First Department held that the parties’ oral agreement was enforceable because, inter alia, its “terms were acknowledged and ratified in the daily activities and property relations of the parties throughout their eleven-year marriage”. By reversing the First Department, the Court of Appeals necessarily rejected the contention that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) may be upheld if it is ratified by the parties. 

Family Court

Family Court denied the motion to dismiss the Neglect petition alleging a coercive and controlling relationship holding that the exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect.

  In Matter of Aisha R., 2023 WL 3831887 (Fam Court, 2023) the dated October 13, 2022, the Administration for Children’s Services (”ACS”) alleged that the respondent, Ariel T., neglected the children by perpetrating acts of domestic violence against their mother, non-respondent Taisha R., in their presence. Family Court denied the motion to dismiss the petition alleging a coercive and controlling relationship. The facts alleged met the standard to survive a CPLR 3211(a)(7) motion. The most visible impact on the children alleged in the petition was that Arielle, a two-year old child, repeated the derogatory words Mr. T. used against Ms. R., including calling his mother “a bitch. The children were also negatively impacted by Mr. T.’s alleged use of them as tools in his campaign of control over Ms. R. The petition alleged that Mr. T. took all the children’s vital documents and repeatedly threatened to take the children away from Ms. R. if she does not listen to him. Utilizing the children to further exert power and control over Ms. R. creates a substantial risk of harm to not only Ms. R., but the children as well. As alleged, Mr. T.’ actions and choice to use the children as a means of control over Ms. R. showed a disregard for the well-being of the children that raised serious concern regarding his parental judgment and the effect his decisions have on the children’s mental and emotional state. In addition to the significant lack of parental judgment here, this behavior teaches the children unhealthy relationship dynamics and places them directly in between their parents. Additionally, from the power and control allegedly exerted, it could reasonably be inferred that Mr. T. inhibited Ms. R.’s own ability to provide a minimum degree of care for the children. As per the petition, Mr. T. does not allow Ms. R. to leave the home, accuses her of sleeping with everybody, does not allow her to see friends or family, takes her monthly SSI benefits, and confiscated the children’s vital documents. Without vital documents, Ms. R. was unable to even perform the basic function of enrolling her children in school, and without access to her own funds, she could not purchase necessities for herself and the children, let alone the occasional “extras” that grease the parenting wheel with small children. Additionally, the isolation from the friends and family who would provide multiple benefits and positive experiences for the children detracts from the children’s ability to build social skills and eliminates their opportunity to observe and learn what non-abusive relationships are.  The exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect. Using derogatory language that the children repeat, using the children as tools to further control their mother, using isolating tactics that leave children feeling alone and unsupported, and unreasonably creating a tense home environment is not the way a reasonable and prudent parent would care for a child. Failing to distinguish this type of psychological abuse from the “undesirable but not neglectful” scenarios would mean that Family Court’s protection would not be extended to children who are impaired by non-physical forms of domestic violence.

In a juvenile delinquency proceeding the Respondent’s request for police records of officers who would not testify was granted. The Presentment Agency was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and had made no offer of proof, that the records would impeach the credibility of any officer it would call to testify.

In Matter of E.S.  --- N.Y.S.3d ----, 2023 WL 3265934, 2023 N.Y. Slip Op. 23135 (Fam Ct, 2023) a juvenile delinquency proceeding the Respondent’s request for police records of officers who will not testify was granted. The Presentment Agency contended that it was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and has made no offer of proof, that the records would impeach the credibility of any officer it would call to testify. The Court observed that  Section 245.20 of the Criminal Procedure Law provides for automatic discovery of certain categories of information favorable to the defense in a criminal proceeding, including broad disclosure of all evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to ... impeach the credibility of a testifying prosecution witness (CPL 245.20[1][k][iv]). Family Court noted that in Matter of Jayson C., the Appellate Division, First Department held that, although the Criminal Procedure Law is generally not applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]), the denial of records available to criminal defendants under CPL 245.20(1)(k)(iv), which broadly requires disclosure of all impeachment evidence, deprived the respondent in a juvenile delinquency proceeding of equal protection of the law (Matter of Jayson C., 200 A.D.3d at 447, 159 N.Y.S.3d 40). Criminal Procedure law 245.20(1)(k) also provides for disclosure of six other categories of evidence, including all evidence and information that tends to “(i) negate the defendant’s guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant’s culpability as to a charged offense; (iii) support a potential defense to a charged offense; (v) undermine evidence of the defendant’s identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment.” Although the court in Matter of Jayson C. did not address the six remaining categories of information that must be disclosed pursuant to CPL 245.20(1)(k), the disclosure provided for therein mirrors and broadens the constitutional protections developed in case law, including the obligation of the state to disclose all evidence or information which is “favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses”. Family Court Act § 331.2 and § 331.4 set forth the general scope of discovery in juvenile delinquency proceedings, which in addition to specific items set forth in the statute, directs that the Presentment Agency shall disclose to the respondent “anything required to be disclosed ... pursuant to the constitution of this state or of the United States” (FCA § 331.2 [1][g]). Thus, although the Family Court Act is silent regarding the specific statutory protections memorialized in CPL 245.20(1)(k)(i)-(iii), (v)-(vii), to deny this disclosure would violate the right to equal protection as per Matter of Jayson C. and as required by constitutional precedents. The court found that the first espoused rationale applies insofar as the records requested by Respondent generally would tend to be favorable to the defense. This portion of the motion was granted and the Presentment Agency was directed to produce to Respondent the police records of all officers assigned to the case, who assisted in the arrest, or who responded at the scene.

June 7, 2023

Appellate Divison, First Department

Where the husband elected to receive his compensation in stock options and RSUs, which could have been converted to cash at commencement the the commencement date of valuation was appropriate.

In Lorne v Lorne, --- N.Y.S.3d ----, 2023 WL 3742967, 2023 N.Y. Slip Op. 02942 (1st Dept.,2023) the Supreme Court, among other things, awarded defendant wife $7,000 in monthly maintenance retroactive to October 18, 2016; (2) determined that plaintiff husband’s Charles Schwab accounts ending in –2077, –2005, and –2479 were his separate property; (3) determined that property located at 162 Ken Rose Lane in Oregon (Ken Rose) was the husband’s separate property; (4) determined that the husband’s stock options and restricted units (RSU) in Teledyne Technologies should be valued as of date of commencement; (5) determined that the parties’ marital estate should be distributed 60% to the husband and 40% to the wife; (6) awarded the husband a 100% credit for his payment of post-commencement carrying costs on 50 Madison Avenue; (7) authorized the husband to make decisions in the ongoing litigation involving 50 Madison Avenue and to receive a credit for 60% of his related legal fees post-commencement; (8) credited the wife 40% of transfers made by the husband of $420,000, $90,000, and $534,814; (9) and determined the wife’s share of the husband’s net deferred income based on taxes withheld. The Appellate Division modified by reducing the husband’s “off the top” credit for his payment of post-commencement carrying costs on 50 Madison Avenue from 100% to 40%, vacating credits to the wife of $213,600 and $168,000, increasing the wife’s credit of $36,000 to $60,000, increasing the wife’s distributive share of the husband’s deferred compensation award by $104,237.08, deleting any calculation of any credits to the husband for overpayment of maintenance, and otherwise affirmed. 

The Appellate Division found no reason to disturb the trial court’s determination that the husband’s stock options and RSU in Teledyne Technologies were properly valued as of the commencement date. Generally, active assets are valued as of the commencement date while passive assets are valued closer to the date of trial, however this must be viewed as a helpful guidepost rather than a rigid rule (see McSparron v. McSparron, 87 N.Y.2d 275, 287–288, 639 N.Y.S.2d 265 [1995]). The husband testified that he was a board member and Chairman of the Audit Committee at Teledyne, and his duties included attending meetings, keeping abreast of the industry, and acting as a conduit for information with audit partners. Notably, the husband elected to receive his compensation in stock options and RSUs, which could have been converted to cash at commencement. Under these circumstances, it found that the commencement date of valuation was appropriate.

The Appellate Division held that the court providently exercised its discretion in awarding the husband 60% of the marital estate, and the wife 40%. The parties met in their fifties and did not have children together. While she largely managed the parties’ properties, the wife did not work outside the home. The wife also occasionally participated in the husband’s business-related events, but there was some testimony that the wife’s behavior at these events created friction with his associates. It was undisputed that while the action was pending the wife sent letters disparaging the husband to his employer and other professional contacts. Although the husband’s income increased dramatically during the marriage, his highest earning years occurred in the three years preceding commencement of the action when the parties had effectively set up separate households in New York and Connecticut. Under these circumstances, the court’s division of marital assets was equitable.

The court noted that the husband was not entitled to any credits for temporary maintenance payments that exceeded the permanent maintenance award as any difference was minimal due to the tax impact (see Wechsler v. Wechsler, 58 A.D.3d 62, 84, 866 N.Y.S.2d 120 [1st Dept. 2008], appeal dismissed 12 N.Y.3d 883, 883 N.Y.S.2d 177, 910 N.E.2d 1007 [2009]).

Appellate Division, Second Department

Based upon the defendant’s admissions that she utilized cash from the business to pay for certain personal expenses, as well as some employee salaries, the Supreme Court providently exercised its discretion in imputing an annual income of $80,000 to the defendant.  Where the noncustodial parent is contributing the majority of the financial support of the parties’ children, the court may determine that the noncustodial parent is entitled to declare the children as dependents.

        In Miller v Miller, --- N.Y.S.3d ----, 2023 WL 3729829, 2023 N.Y. Slip Op. 02872 (2d Dept.,2023) the  amended judgment of divorce, inter alia, (1) valued Healthcare Medical Services, PLLC, at $2,885,100, (2) awarded the defendant 20% of the value of Healthcare Medical Services, PLLC, (3) awarded the defendant $5,000 per month in child support, and (4) directed the plaintiff to pay 75% of all child support add-ons. The Appellate Division modified by adding a provision directing that the plaintiff is authorized to declare all of the parties’ unemancipated children as dependents on his personal income tax returns and otherwise affirmed.  The parties were married on June 21, 1994, and had eight children. The plaintiff was a medical doctor and the sole owner of two professional companies, Hanan Miller, MD, P.C., and Healthcare Medical Services, PLLC (HMS). The defendant owned and operated an upscale baby clothing store called Lavish Layette. The parties agreed that the defendant would have sole legal and residential custody of the parties’ unemancipated children. Supreme Court, among other things, imputed an annual income of $80,000 to the defendant and  determined that the defendant was entitled to child support in excess of the statutory cap.

The Appellate Division found that plaintiff’s contention that insufficient income was imputed to the defendant was without merit. The defendant testified at the trial that her amended 2017 tax return showed that she had an annual income of $45,436 from her business, Lavish Layette. However, the bookkeeper for Lavish Layette testified that the defendant received disbursements from the business in 2017 totaling $64,836.71. Based upon the defendant’s admissions that she utilized cash from the business to pay for certain personal expenses, as well as some employee salaries, the Supreme Court providently exercised its discretion in imputing an annual income of $80,000 to the defendant.

  The Appellate Division observed that where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both” ( Domestic Relations Law § 240[1–b][c][3]). The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. “Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning why there should or should not be a departure from the prescribed percentage”. Supreme Court stated that it applied the child support percentage to the amount above the statutory cap primarily due to the parties’ considerable income and the needs of the children. Under the circumstances presented, the court providently exercised its discretion in doing so.

The Court noted that where, as here, the noncustodial parent is contributing the majority of the financial support of the parties’ children, “the court may determine that the noncustodial parent is entitled to declare the children as dependents on his or her income tax returns.” Under the circumstances here, the plaintiff was entitled to declare all of the parties’ unemancipated children as his dependents for income tax purposes.

 

Where the mother’s initial papers submitted in support of her application for an award of counsel fees did not seek relief under 22 NYCRR 130–1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard.

  In LeBoeuf v Greene, --- N.Y.S.3d ----, 2023 WL 3729753, 2023 N.Y. Slip Op. 02870(2d Dept.,2023) in July 2020, the parties entered into a stipulation giving the mother final decision-making authority and residential custody of the child, with parental access to the father. In September 2020, the mother moved to modify the stipulation based upon the father’s alleged misrepresentations to her that in August 2020 he drove with the child to visit his parents in Alabama when he in fact flew with the child. The mother’s motion papers did not seek an award of counsel fees. At a court conference while the motion remained pending and undecided, the father’s counsel acknowledged to the Supreme Court that the father had lied to the mother when he told her that he did not fly with the child to Alabama in August 2020. The mother’s counsel made an oral application for an award of counsel fees, and the court permitted the mother to submit a written application. The mother then filed a written application for an award of counsel fees, which the father opposed. Supreme Court awarded her counsel fees of $25,000. 

The Appellate Division observed that it was clear from the record that the court awarded counsel fees pursuant to either 22 NYCRR 130–1.1 or Domestic Relations Law § 237(b). Under either standard the court improvidently exercised its discretion in granting the application. At the December 2, 2020 court conference, at which the Supreme Court permitted the mother to make a written application for counsel fees, the court did not state whether the application should be made under 22 NYCRR 130–1.1. Moreover, the court did not, either at the December 2, 2020 court conference or in the fee order, specifically make a finding that the father’s conduct was “frivolous” within the meaning of 22 NYCRR 130–1.1. Additionally, the mother’s initial papers submitted in support of her application for an award of counsel fees did not seek relief under 22 NYCRR 130–1.1, or set forth any statutory basis for an award of counsel fees. Under these circumstances, to the extent the court granted the mother’s application for an award of counsel fees pursuant to 22 NYCRR 130–1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard.

To the extent that the Supreme Court granted the mother’s application for an award of counsel fees under 22 NYCRR 130–1.1, the court improperly based its determination to grant the application, in part, on the father’s act of lying to the mother about flying to Alabama with the parties’ child, since this conduct occurred outside of the proceeding before the court. The court also based its determination to grant the mother’s application on misrepresentations the father made to the court during court conferences in September 2020 and October 2020. However, since the record did not contain transcripts of those court proceedings, it was unable to determine what, if any, “material factual statements that are false” were asserted by the father at those court conferences (22 NYCRR 130–1.1[c][3]). 

To the extent that the Supreme Court granted the mother’s application for an award of counsel fees pursuant to Domestic Relations Law § 237(b), the court did not adequately consider the disparate financial circumstances of the parties. Under the unique circumstances of this case, the Supreme Court improvidently exercised its discretion in granting the mother’s application for an award of counsel fees.

 

Defendant’s testimony as to his income, coupled with undisputed evidence of his educational background and his vague denial of recollection as to whether the accusations underlying his termination from his previous full-time position had merit, provided a basis for the court to impute income to the defendant. Court should not have, sua sponte, taken judicial notice of information regarding the defendant’s income on a certain website.

  In Anyanwu v Anyanwu,  --- N.Y.S.3d ----, 2023 WL 3729819, 2023 N.Y. Slip Op. 02859 (2d Dept.,2023) the Appellate Division affirmed the judgment of divorce which insofar as appealed from, awarded the plaintiff maintenance of $423.50 per month for a period of seven years and child support of $1,876.44 per month. The plaintiff and the defendant were married in December 1994 and have four children, three of whom were unemancipated at the time of trial. In January 2017, the plaintiff commenced this action for a divorce and ancillary relief. After a nonjury trial, the Supreme Court issued a decision in which it, inter alia, imputed income to the defendant in the amount of $92,942 per year. The court subsequently entered a judgment of divorce upon its decision after trial, awarding the plaintiff maintenance in the sum of $423.50 per month for a period of seven years and child support in the sum of $1,876.44 per month, calculated with the defendant’s imputed income, among other things.

The Appellate Division found that Supreme Court providently exercised its discretion by imputing $92,942 in annual income to the defendant when computing his maintenance and child support obligations. The defendant’s testimony as to his income in 2017, coupled with the undisputed evidence of his educational background and his vague denial of recollection as to whether the accusations underlying his termination from his previous full-time position had merit, provided a basis for the court, in the exercise of its discretion, to impute income to the defendant. Moreover, while the defendant is correct that the court should not have, sua sponte, taken judicial notice of information regarding the defendant’s income on a certain website (see OneWest Bank, FSB v. Berino, 158 A.D.3d 811, 813, 71 N.Y.S.3d 563; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 818, 962 N.Y.S.2d 301), this error was harmless. The defendant’s own admission to earning more than $96,000 in 2017 provided an independent basis for the court to impute income to him in the amount of $92,942 per year.

There is no express requirement to submit certified copies of birth certificates in a proceeding pursuant to FCA § 661(a). Although an application to USCIS for SIJS must be supported by documentary evidence of the applicant’s age, Family Court is only required to ascertain the juvenile’s age. There is no statutory requirement that a petitioner submit any particular evidence to establish the juvenile’s age.

In Matter of Joel A.A.R.,.--- N.Y.S.3d ----, 2023 WL 3729811, 2023 N.Y. Slip Op. 02881(2d Dept.,2023)  the Appellate Division reversed the orders of the family court and made specific findings to enable the child to petition the United States Citizen and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). It held that contrary to the Family Court’s determination, there is no express requirement to submit certified copies of birth certificates in a proceeding such as this pursuant to Family Court Act § 661(a) (see generally Matter of Rosa Amanda L.R. v. Carlos Arnoldo O.R., 189 A.D.3d 1250, 134 N.Y.S.3d 223). Although an application to USCIS for SIJS must be supported by “[documentary evidence of the [applicant’s] age, in the form of a valid birth certificate, official government-issued identification, or other document that in USCIS’ discretion establishes the [applicant’s] age” (8 CFR 204.11[d][2]), in proceedings pursuant to Family Court Act § 661(a), the Family Court is only required to ascertain the juvenile’s age, and there is no statutory requirement that a petitioner submit any particular evidence to establish the juvenile’s age. For purposes of this proceeding pursuant to Family Court Act § 661(a), the record supported a finding that the child was under the age of 21. Based upon its  independent factual review, it found that the child’s best interests would be served by the appointment of the mother as his guardian. Pursuant to SCPA 1705(1)(a), “[u]pon presentation of the petition process shall issue ... [t]o the ... parents ... if such persons are within the state and their residences therein are known.” Nevertheless, even where, as here, a parent is not within the state and service upon that parent is not required pursuant to SCPA 1705(1)(a), the Family Court possesses discretion to issue process to any relative “domiciled in its county or elsewhere” (id. § 1705[3]). However, in this case, it found that the record supported dispensing with service on the father. The record supported findings that the child was under the age of 21 and unmarried; that the mother should have been appointed as the child’s guardian; and that the child was dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i). Additionally, based upon its independent factual review, the record supported a finding that reunification of the child with his father was not a viable option due to parental abandonment and  the record supported a finding that it would not be in the best interests of the child to return to Honduras, his previous country of nationality and last habitual residence.

Appellate Divison, Fourth Department 

Screen shots of text messages between mother and children were properly admitted into evidence where the identity of the senders and receivers was sufficiently authenticated by the content of the text messages, as well as the grandmother’s testimony that she observed one of the children using his phone at the times the text messages were sent

In  Matter of D.T., v. C.T., --- N.Y.S.3d ----, 215 A.D.3d 1232, 2023 WL 3160145, 2023 N.Y. Slip Op. 02202 (4th Dept.., 2023) the Appellate Division rejected the argument of the  father and the attorney for the children (AFC)  that the appeal should be dismissed due to the mother’s improper service of the notice of appeal (see CPLR 2103 [a]). Inasmuch as neither the father nor the AFC were prejudiced as a result of the mother’s mistake, it  exercised its discretion to disregard the irregularity (citing CPLR 2001, 5520 [a]; M Entertainment, Inc. v. Leydier, 71 A.D.3d 517, 518, 897 N.Y.S.2d 402 [1st Dept. 2010]).

  The Appellate Division rejected the mother’s contention that Family Court erred in admitting into evidence two exhibits containing screenshots of text messages between the mother and two of the children. The identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages, as well as by the maternal grandmother’s testimony that she observed one of the subject children using his phone at the times the text messages were sent. Further, there was no evidence that any omitted material was necessary for explanatory purposes, and the mother was free to introduce other text messages between herself and the child that would have resolved any purported distortion caused by admitting in evidence only portions of the text conversation.

The Appellate Division rejected the mother’s contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child “must zealously advocate the child’s position.” However, an attorney for the child is entitled to advocate a position that is contrary to a child’s wishes when the attorney is “convinced ... that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” (22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child’s wishes, the attorney is still required to “inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position” (22 NYCRR 7.2 [d] [3]). Here, the children’s wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record established that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children.

The Appellate Division concluded that there was a sound and substantial basis in the record to support [the court’s] determination that it was in the children’s best interests to award sole custody to the father and a sound and substantial basis in the record supporting the determination to impose supervised visitation for the mother inasmuch as the record established that the mother frequently disparaged the father to the children, exposed the children to domestic violence, unwittingly allowed pornographic images of herself and her partner to be sent to the children’s mobile devices, and failed to maintain a stable home environment for a period of several years.  It agreed with the mother that the court should have set a visitation schedule rather than ordering visitation as agreed upon by the parties inasmuch as the record demonstrated that an order directing supervised visitation as mutually agreed upon by the parties would be untenable under the circumstances. It modified the order accordingly and remitted the matter to Family Court to fashion an appropriate schedule for supervised visitation. 

Supreme Court

Wife purged her contempt of court and satisfied the purge amount by way of serving her entire incarceration period but the balance of the Wife’s pendente lite child support and maintenance arrears remained due and payable by the Wife to the Husband

  In T.H., v. M.B., --- N.Y.S.3d ----, 2023 WL 3731263, 2023 N.Y. Slip Op. 23166 ( Sup Ct, 2023) by Decision and Order dated March 30, 2023, the Court found the Wife guilty of civil contempt pursuant to Judiciary Law Section § 753(3), for her willful non-compliance with the terms of the orders of the Court by failing to pay monthly pendente lite spousal support in the total amount of $48,529. The Court gave the Wife until April 28, 2023, to purge her contempt by paying the Husband $24,264.50, or half of the full arrears due, or be subject to further sanction, including arrest. This matter reconvened on April 28, 2023, and the Wife did not fully purge her contempt. She paid a total of $3,500. The court issued an Order of Commitment committing the Wife to the Custody of the Sheriff of New York County for delivery to the New York City Department of Corrections to be held for a maximum term of three (3) weeks commencing April 28, 2023, unless she purged herself of her contempt by payment of$20,764.50 to the Husband. By Amended Order of Commitment dated May 16, 2023, the Court modified the Wife’s incarceration term to nineteen (19) days, commencing April 28, 2023 and ending on May 17, 2023. On May 17, 2023, the Wife was discharged from the custody of the New York City Department of Corrections. The Court now found  that the Wife satisfied her purge amount of $20,764.50 by completing her incarceration period of nineteen days.  The Court held that by serving the full term, the Wife had effectively satisfied the purge amount of $20,764.50. The Court found it was manifestly unjust to enter a money judgment against the Wife for the purge amount following her completed incarceration period. It held that it  is either one or the other, not both. The Court ordered (1) that the Wife had purged her contempt of court and satisfied the $20,764.50 purge amount by way of serving her entire incarceration period; (2) that the balance of the Wife’s pendente lite child support and maintenance arrears of $24,264.50 under the Court’s March 30, 2023, Decision and Order remained due and payable by the Wife to the Husband; and (3) the Husband was entitled to a money judgment against the Wife in the sum of $24,264.50, representing the balance due on the total arrears amount of $48,529.

 

Family Court

Family Court denied the motion to dismiss the Neglect petition alleging a coercive and controlling relationship holding that the exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect.

  In Matter of Aisha R., 2023 WL 3831887 (Fam Court, 2023) the dated October 13, 2022, the Administration for Children’s Services (”ACS”) alleged that the respondent, Ariel T., neglected the children by perpetrating acts of domestic violence against their mother, non-respondent Taisha R., in their presence. Family Court denied the motion to dismiss the petition alleging a coercive and controlling relationship. The facts alleged met the standard to survive a CPLR 3211(a)(7) motion. The most visible impact on the children alleged in the petition was that Arielle, a two-year old child, repeated the derogatory words Mr. T. used against Ms. R., including calling his mother “a bitch. The children were also negatively impacted by Mr. T.’s alleged use of them as tools in his campaign of control over Ms. R. The petition alleged that Mr. T. took all the children’s vital documents and repeatedly threatened to take the children away from Ms. R. if she does not listen to him. Utilizing the children to further exert power and control over Ms. R. creates a substantial risk of harm to not only Ms. R., but the children as well. As alleged, Mr. T.’ actions and choice to use the children as a means of control over Ms. R. showed a disregard for the well-being of the children that raised serious concern regarding his parental judgment and the effect his decisions have on the children’s mental and emotional state. In addition to the significant lack of parental judgment here, this behavior teaches the children unhealthy relationship dynamics and places them directly in between their parents. Additionally, from the power and control allegedly exerted, it could reasonably be inferred that Mr. T. inhibited Ms. R.’s own ability to provide a minimum degree of care for the children. As per the petition, Mr. T. does not allow Ms. R. to leave the home, accuses her of sleeping with everybody, does not allow her to see friends or family, takes her monthly SSI benefits, and confiscated the children’s vital documents. Without vital documents, Ms. R. was unable to even perform the basic function of enrolling her children in school, and without access to her own funds, she could not purchase necessities for herself and the children, let alone the occasional “extras” that grease the parenting wheel with small children. Additionally, the isolation from the friends and family who would provide multiple benefits and positive experiences for the children detracts from the children’s ability to build social skills and eliminates their opportunity to observe and learn what non-abusive relationships are.  The exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect. Using derogatory language that the children repeat, using the children as tools to further control their mother, using isolating tactics that leave children feeling alone and unsupported, and unreasonably creating a tense home environment is not the way a reasonable and prudent parent would care for a child. Failing to distinguish this type of psychological abuse from the “undesirable but not neglectful” scenarios would mean that Family Court’s protection would not be extended to children who are impaired by non-physical forms of domestic violence.

In a juvenile delinquency proceeding the Respondent’s request for police records of officers who would not testify was granted. The Presentment Agency was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and had made no offer of proof, that the records would impeach the credibility of any officer it would call to testify.

In Matter of E.S.  --- N.Y.S.3d ----, 2023 WL 3265934, 2023 N.Y. Slip Op. 23135 (Fam Ct, 2023) a juvenile delinquency proceeding the Respondent’s request for police records of officers who will not testify was granted. The Presentment Agency contended that it was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and has made no offer of proof, that the records would impeach the credibility of any officer it would call to testify. The Court observed that  Section 245.20 of the Criminal Procedure Law provides for automatic discovery of certain categories of information favorable to the defense in a criminal proceeding, including broad disclosure of all evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to ... impeach the credibility of a testifying prosecution witness (CPL 245.20[1][k][iv]). Family Court noted that in Matter of Jayson C., the Appellate Division, First Department held that, although the Criminal Procedure Law is generally not applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]), the denial of records available to criminal defendants under CPL 245.20(1)(k)(iv), which broadly requires disclosure of all impeachment evidence, deprived the respondent in a juvenile delinquency proceeding of equal protection of the law (Matter of Jayson C., 200 A.D.3d at 447, 159 N.Y.S.3d 40). Criminal Procedure law 245.20(1)(k) also provides for disclosure of six other categories of evidence, including all evidence and information that tends to “(i) negate the defendant’s guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant’s culpability as to a charged offense; (iii) support a potential defense to a charged offense; (v) undermine evidence of the defendant’s identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment.” Although the court in Matter of Jayson C. did not address the six remaining categories of information that must be disclosed pursuant to CPL 245.20(1)(k), the disclosure provided for therein mirrors and broadens the constitutional protections developed in case law, including the obligation of the state to disclose all evidence or information which is “favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses” . Family Court Act § 331.2 and § 331.4 set forth the general scope of discovery in juvenile delinquency proceedings, which in addition to specific items set forth in the statute, directs that the Presentment Agency shall disclose to the respondent “anything required to be disclosed ... pursuant to the constitution of this state or of the United States” (FCA § 331.2 [1][g]). Thus, although the Family Court Act is silent regarding the specific statutory protections memorialized in CPL 245.20(1)(k)(i)-(iii), (v)-(vii), to deny this disclosure would violate the right to equal protection as per Matter of Jayson C. and as required by constitutional precedents. The court found that the first espoused rationale applies insofar as the records requested by Respondent generally would tend to be favorable to the defense. This portion of the motion was granted and the Presentment Agency was directed to produce to Respondent the police records of all officers assigned to the case, who assisted in the arrest, or who responded at the scene.

May 31, 2023

Appellate Division, First Department

Defendant was the monied spouse in light of the parties’ statements of net worth, which showed that defendant’s net worth was more than double that of plaintiff’s. Supreme Court providently exercised its discretion in holding plaintiffs’ motion in abeyance pending her submission of an updated statement of net worth.

In Binn v Binn, --- N.Y.S.3d ----, 2023 WL 3588204 (Mem), 2023 N.Y. Slip Op. 02759(1st Dept., 2023) the Appellate Division affirmed an order which granted the wife’s motion for counsel fees. It held that Supreme Court providently exercised its discretion in holding plaintiffs’ motion in abeyance pending her submission of an updated statement of net worth, instead of denying the motion without prejudice to renewal (see 22 NYCRR 202.16[k][2], [5])). Under the circumstances, directing the plaintiff to file an updated statement of net worth, rather than denying the motion with leave to renew, served the interests of justice and judicial economy. Further, the record did not support a finding that defendant was prejudiced by the court’s denial of his request to challenge plaintiff’s updated statement of net worth. It also found that the court correctly determined that defendant was the monied spouse in light of the parties’ statements of net worth, which showed that defendant’s net worth was more than double that of plaintiff’s. In addition, the finding was proper in view of the parties’ earning history and earning potential. The fact that plaintiff was able to pay her counsel fees did not preclude an award in her favor as plaintiff was not required to spend down finite assets to cover those fees.

Cyprus court’s determination that mother had not met her burden as to Grave Risk of Harm Defense is not tantamount to a determination on the merits of her domestic violence claims for purposes of the custody determination to be made by the New York court. 

  In Gould v Kontogiorge, --- N.Y.S.3d ----, 2023 WL 3633433, 2023 N.Y. Slip Op. 02824 (1st Dept.,2023) the mother appealed from an order of the  Supreme Court, which, inter alia,  directed her to reimburse plaintiff father, $1,900 for payments made to visitation supervisors through September 30, 2021, and, upon final resolution of this matter, to pay $4,687.90 for his and the child’s travel costs to New York from Cyprus (February 18, 2022 order). The  Appellate Division held that the motion court should not have awarded the father reimbursement for the $1900 he allegedly paid to visitation supervisors, as he offered no proof of payment beyond unsupported assertions in his motion papers. His motion was unaccompanied by any documentation, or by affidavits from the visitation supervisors, substantiating the payments (Matter of Parente v. Parente, 193 AD3d 862 [2d Dept 2021] ). In turn, it vacated the finding of civil contempt (to the extent not already purged) and the resultant $6,437.50 counsel fee award imposed against the mother for failing to timely reimburse the father for this expense as set forth in the motion court’s orders of September 20 and 27, 2022. It affirmed the  February 18, 2022 order, as the father did produce adequate proof of the costs of the child’s return to the U.S. from Cyprus. He submitted documentation of credit card charges for payments made to American Airlines in March 2021, on a Visa held by nonparties, and one of the nonparties is listed on the father’s Net Worth Statement as an individual who has extended him personal loans. However, that aspect of the order that limited the proof of domestic violence that the mother may try to introduce at the forthcoming custody trial to incidents that have occurred since the conclusion of the Hague Convention proceedings, was vacated. It found that the court correctly recognized “[a] decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence” (Matter of Katz v. Katz, 117 AD3d 1054, 1055 [2d Dept 2014] ). However, it then effectively vested the Hague Convention proceedings with preclusive effect as to claims of domestic violence, by ruling that, at the impending custody hearing, the mother could only seek to introduce evidence of domestic violence that has occurred since those proceedings’ conclusion. There should have been no such temporal limitation imposed on the domestic violence evidence the mother may seek to introduce. The mother introduced affidavit testimony of domestic violence to buttress her “grave risk of harm” defense to the child’s return pursuant to Article 13(b) of the Convention. However, the Cyprus court’s determination that she had not met her burden as to such defense is not tantamount to a determination on the merits of her domestic violence claims for purposes of the custody determination to be made by the New York court. As the U.S. Supreme Court has recognized, “return [of a child pursuant to the Hague Convention] is merely a provisional remedy that fixes the forum for custody proceedings” (Golan v. Saada, __US__, 142 S Ct 1880, 1888 [2022]). 

Appellate Division, Second Department

Family Court erred in granting motion to dismiss the custody petition on the ground of forum non conveniens. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it must stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state.

In Water v Yacopino, --- N.Y.S.3d ----, 2023 WL 3607006, 2023 N.Y. Slip Op. 02792 (2d Dept.,2023) the parties had one child in common. In November 2013, the Family Court awarded the mother physical custody and the father parental access. In May 2021, the father commenced this proceeding to enforce the November 2013 order. The father argued, inter alia, that the mother violated the November 2013 order by relocating with the child to Texas and preventing the father from having parental access with the child. In July 2021, the mother moved, pursuant to Domestic Relations Law § 76–f to dismiss the petition on the ground of forum non conveniens. Family Court granted the mother’s motion. The Appellate Division observed that pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act,(UCCJEA), a court in this State which makes an initial custody determination has exclusive, continuing jurisdiction over that determination so long as, inter alia, one parent remains a resident of New York (see id. § 76–a[1] ). Domestic Relations Law § 76–f(1) provides that a court of this State which has jurisdiction under the UCCJEA may decline to exercise jurisdiction if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum. The issue of inconvenient forum dismissal is addressed to the Family Court’s discretion after consideration of the statutory factors set forth in Domestic Relations Law § 76–f(2). ‘Particularly relevant’ to the analysis is the nature and location of evidence.  It agreed with the Family Court that Texas was the more appropriate and convenient forum. The child had not resided in New York since May of 2020. The child also had no significant connection to New York since 2020, and the substantial, relevant evidence pertaining to the child’s care, protection, education, and personal relationships was in Texas, not New York. The statutory factors weighed in favor of the court’s determination to decline to exercise jurisdiction. Domestic Relations Law § 76–f(3) specifies that “[i]f a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state.” Accordingly, the Family Court erred in granting the motion to dismiss the petition, and it remitted the matter to the Family Court, for further proceedings pursuant to Domestic Relations Law § 76–f(3), including the entry of an order staying all proceedings in the above-entitled proceeding on condition that a child custody proceeding is promptly commenced in Texas.

Support Magistrate providently exercised her discretion when she imputed annual income to the father based upon his ability to work full time for minimum wage in calculating his child support obligation  

In Matter of Lincor v Crowell, --- N.Y.S.3d ----, 2023 WL 3607026, 2023 N.Y. Slip Op. 02784 (2d Dept.,2023) the  father filed a petition for a downward modification of his child support obligation. After a hearing, the Support Magistrate directed the father to pay child support of $86 per week. The Support Magistrate determined that the father had failed to submit competent medical evidence to support his claimed inability to work, and imputed annual income to the father based upon his ability to work full time for minimum wage in calculating his child support obligation. The Appellate Division affirmed finding that he failed to provide competent medical evidence to show that his alleged medical conditions prevented him from working. Thus, the Support Magistrate providently exercised her discretion. 

Defendant was not deprived of her right to counsel pursuant to FCA § 262, nor were her constitutional due process rights violated, by the forensic evaluator’s request that she complete a parenting survey without the assistance of her counsel. There is no right to the participation or assistance of counsel.

  In Primero v Lee, --- N.Y.S.3d ----, 2023 WL 3607048, 2023 N.Y. Slip Op. 02801(2d Dept.,2023) the parents were married in 2016 and had one child, born in October 2016. The plaintiff commenced the action for divorce in October 2021. The Supreme Court appointed a mental health professional to conduct a forensic evaluation of the parties and the child. As part of the evaluation, the forensic evaluator requested that the defendant complete a parenting survey without consulting anyone, including her attorney. The defendant did not complete the survey and moved to enjoin the forensic evaluator from requiring that she submit written answers to the survey or to allow her to consult with counsel regarding the content of the survey and responses to the questions contained in it prior to submitting written answers to the forensic evaluator, and to preclude the parties from seeking the production of the written response to the parenting survey in any discovery request pursuant to CPLR article 31. The court denied the motion. The Appellate Division affirmed. It held that defendant was not deprived of her statutory right to counsel pursuant to Family Court Act § 262, nor were her constitutional due process rights violated, by the forensic evaluator’s request that she complete a parenting survey without the assistance of her counsel. Even in those instances where counsel has been permitted to be present for a client’s forensic examination in the context of a termination of parental rights proceeding, or in the context of a pre-retention psychiatric examination, it has been determined that “there is no right to the participation or assistance of counsel”, and counsel “who interferes in any way with the conduct of such examination may rightly be excluded” (Matter of Alexander L., 60 N.Y.2d at 329, 469 N.Y.S.2d 626, 457 N.E.2d 731).

 

Family Court may revoke a suspended judgment after a hearing if it finds that the parent failed to comply with one or more of the conditions of the suspended judgment. A parent’s attempt to comply with the literal provisions of the suspended judgment is not enough. The parent must also have gained insight into the problems that were preventing the children’s return to his or her care.

In Matter of Marish G, --- N.Y.S.3d ----, 215 A.D.3d 966, 2023 WL 3083030, 2023 N.Y. Slip Op. 02124 (2d Dept.,2023) the Appellate Division affirmed an order which found that the mother violated the terms and conditions of the suspended judgments contained in two prior orders of the court (one as to each child), revoked the suspended judgments, and terminated the mother’s parental rights. It held that the Family Court may revoke a suspended judgment after a hearing if it finds, by a preponderance of the evidence, that the parent failed to comply with one or more of the conditions of the suspended judgment. When determining compliance with a suspended judgment, it is the parent’s obligation to demonstrate that progress has been made to overcome the specific problems which led to the removal of the children. A parent’s attempt to comply with the literal provisions of the suspended judgment is not enough. The parent must also have gained insight into the problems that were preventing the children’s return to his or her care. A preponderance of the evidence established that the mother failed to comply with the conditions of the suspended judgments during their one-year terms and that she failed to demonstrate that she had made progress to overcome the specific problems which led to the removal of the subject children. The petitioner was not required to prove that it had exercised diligent efforts to reunify the mother and the children since the mother had previously admitted that she permanently neglected the children. A separate dispositional hearing was not required before revoking the suspended judgments and terminating her parental rights. The Family Court may enforce a suspended judgment without the need for a separate dispositional hearing where, as here, the record demonstrates that the court has presided over prior proceedings from which it became acquainted with the parties, and the record showed that the court was aware of and considered the child[ren]’s best interests.

The legality of a marriage is to be determined by the law of the place where it is celebrated. The parties’ religious marriage in Florida was not valid under Florida law since Florida requires a marriage license for a marriage to be valid.

In Bernstein v Benchemoun, --- N.Y.S.3d ----, 2023 WL 3486325, 2023 N.Y. Slip Op. 02637 (2d Dept., 2023) the parties were married on February 7, 2013, in a Jewish religious ceremony in Florida. At the ceremony the parties executed a religious marriage contract, known as a ketubah, but they did not obtain a marriage license from the State of Florida. The parties then came to New York, where they executed a second ketubah in the presence of a rabbi. In June 2018, the plaintiff commenced the action for a divorce. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint on the ground, among others, in effect, of lack of subject matter jurisdiction because there was no valid marriage between the parties. Supreme Court granted the defendant’s motion. The Appellate Division affirmed. It observed that the general rule is that the legality of a marriage is to be determined by the law of the place where it is celebrated. Since 1967, Florida has required a marriage license for a marriage to be valid, and a person solemnizing a marriage must require that the parties to the marriage produce a marriage license. The parties’ religious marriage in Florida was not valid under Florida law and was not cognizable in New York. The plaintiff contended that a marriage was solemnized in New York when the parties executed a second ketubah in New York, in the presence of a rabbi.  However, the rabbi who supervised the execution of the second ketubah testified that he never solemnized a marriage, and could not have solemnized a marriage since the parties were already married under Jewish law. The Appellate Division held that a finding that there was a solemnized marriage would require an analysis of religious doctrine, which could offend the First Amendment of the United States Constitution (citing First Presbyt. Church of Schenectady v. United Presbyt. Church in U.S. of Am., 62 N.Y.2d 110; Avitzur v. Avitzur, 58 N.Y.2d 108). Thus, under the circumstances, the Supreme Court could not determine that there was a cognizable marriage in New York.

Where an order of the supreme court or of another court of competent jurisdiction requires support of the child, the Family Court may only entertain applications to enforce or modify the order. Because there was an order of support the Support Magistrate did not have jurisdiction to entertain that branch of the petition.

In Dawson v Iskhakov, --- N.Y.S.3d ----, 2023 WL 3486585, 2023 N.Y. Slip Op. 02660 (2d Dept.,2023) the parties were divorced and had one child. In their April 17, 2017  judgment of divorce, issued on consent, the parties agreed that they would each pay child support to the child’s maternal grandmother. In June 2021, the mother filed a petition, seeking, child support. A Support Magistrate dismissed the petition for lack of subject matter jurisdiction. Family Court denied the mother’s objections. The Appellate Division affirmed. It held that Family Court possesses only the power which is explicitly conferred on it by statute. Pursuant to Family Court Act § 461(a), “[i]n the absence of an order of the supreme court or of another court of competent jurisdiction requiring support of the child, the family court may entertain a petition and make an order for its support.: Family Court Act § 461(b) clarifies that, where “an order of the supreme court or of another court of competent jurisdiction requires support of the child,” the Family Court may only entertain applications to enforce or modify the order. Here, the petition sought, inter alia, to establish an order of support rather than modify or enforce an existing order. Because there was already an order of support in effect that was issued by the Supreme Court, the Support Magistrate did not have jurisdiction to entertain that branch of the petition.

Family Court Act § 1046(a)(ii) permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred, and, in such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together.

In Matter of Erica H.-J, --- N.Y.S.3d ----, 2023 WL 3486499, 2023 N.Y. Slip Op. 02661 (2d dept.,2023) on the morning of Monday, January 18, 2016, the child Erica H.-J., who was then 23 months old, was admitted to a hospital with a lacerated liver, which was potentially life-threatening, and various other injuries. The petitioner commenced a child protective proceeding against Erica’s mother, Erica’s father, and the father’s girlfriend, Aisha B., alleging that they had abused Erica. The petitioner commenced a separate proceeding against the mother, alleging that she had, by the same conduct, derivatively neglected her child Nadia H. The Family Court conducted a fact-finding hearing, at which the evidence indicated that on the weekend immediately preceding her hospitalization, Erica had visitation with the father, and she spent some of the weekend with the father and Aisha B., and the remainder of the weekend with the mother. Family Court determined that the mother, the father, and Aisha B. were responsible for the care of Erica during the weekend preceding her hospitalization, and, while it could not be determined which of them had inflicted Erica’s injuries, they could all be held responsible for the abuse, on a theory of res ipsa loquitur. The court found, inter alia, that the mother abused Erica, and derivatively neglected Nadia H. The Appellate Division affirmed. It noted that under Family Court Act § 1046(a)(ii), a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child that would ordinarily not occur absent an act or omission of the respondents, and (2) that the respondents were the caretakers of the child at the time the injury occurred. Once the petitioner has established by a preponderance of the evidence that child abuse has occurred, Family Court Act § 1046(a)(ii) “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” (Matter of Philip M., 82 N.Y.2d 238). The statute “permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred, and, in such cases, “the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together”. Once the petitioner establishes a prima facie case, “the burden of going forward shifts to respondents to rebut the evidence of parental culpability.  Petitioner established a prima facie case of child abuse against the mother through medical records and expert medical testimony showing that the injuries sustained by Erica would not ordinarily occur absent an act or omission of the caregiver, and that the mother was a caretaker of Erica during the relevant time period. In response to this showing, the mother did not demonstrate that Erica’s injuries occurred when she was in the exclusive care of the father, or otherwise rebut the presumption of culpability. Accordingly, the Family Court properly determined that the petitioner established, by a preponderance of the evidence, that the mother abused Erica. Moreover, the court properly found that the mother’s derivative neglect of Nadia H. was established by a preponderance of the evidence.

A person is a proper respondent in an article 10 proceeding as an other person legally responsible for the child’s care if that person acts as the functional equivalent of a parent in a familial or household setting. The determination is a discretionary, fact-intensive inquiry. 

In Matter of Serenity R, --- N.Y.S.3d ----, 215 A.D.3d 854, 2023 WL 2994938, 2023 N.Y. Slip Op. 02009 (2d Dept.,2023) the Appellate Division found that Truman C. abused the child Serenity R. and derivatively neglected the child Lorenzo C. The Appellate Division affirmed. It held that  Family Court correctly found that he was a person legally responsible for Serenity R. Child protective proceedings encompass only abuse or neglect by a person who is a parent or other person legally responsible for the child’s care. A person legally responsible is defined as the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time. (Family Ct Act § 1012[g]). A person is a proper respondent in [a Family Court Act] article 10 proceeding as an other person legally responsible for the child’s care if that person acts as the functional equivalent of a parent in a familial or household setting (Matter of Yolanda D., 88 N.Y.2d 790). “Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent[s] are some of the variables which should be considered and weighed by a court”. “The definition expressly encompasses paramours who regularly participate in the family setting and who therefore share to some degree in the supervisory responsibility for the children”. Here, Serenity R.’s credible testimony established that the appellant, who was the boyfriend of Serenity R.’s mother, lived in the same home as her for two months prior to the sexual abuse, and would assist in watching her and cooking for her. Moreover, the evidence adduced at the fact-finding hearing was sufficient to prove, by a preponderance of the evidence, that the appellant sexually abused Serenity R. Further, the Family Court correctly concluded that the appellant derivatively neglected Lorenzo C. “Where a person’s conduct toward one child demonstrates a fundamental defect in the parent’s understanding of the duties of parenthood, or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in his or her care, an adjudication of derivative neglect with respect to the other children is warranted.” “In determining whether a child born after the underlying acts of abuse should be adjudicated derivatively neglected, the ‘determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists. The court correctly determined that, given the seriousness of his conduct in sexually abusing Serenity R., the risk to Lorenzo C. remained despite the fact that approximately two years had passed between the sexual abuse of Serenity R. and the birth of Lorenzo C.

Appellate Divison, Third Department

A parent's lack of respect for a transgender child’s gender identity, chosen name, and preferred pronouns are factors in a custody determination

In Matter of Laura E v John D.,  --- N.Y.S.3d ----, 2023 WL 3355656, 2023 N.Y. Slip Op. 02568 (3d Dept.,2023) the Appellate Division, inter alia, affirmed an order which modified a consent order and granted the mother sole legal custody and primary physical custody of the child. In focusing on whether Family Court’s custody and parenting time determinations served the bests interests of the child the Court observed that the subject child identified as male and used the gender-neutral pronouns they/them. The child’s gender identity, and their chosen name and preferred pronouns, were also a point of major contention between the parties. The father explained that addressing the child by their chosen name or preferred pronouns was contrary to his Catholic faith. Although the father initially agreed to engage in family counseling with the child and the mother, the counselor testified that this was short-lived. During the third family counseling session, the father took issue with the counselor addressing the child with the child’s preferred pronouns (they/them), which led to an argument between the father and the child. The father then stormed out of the family session. The counselor continued to treat the child and revealed that the child often reported distress at the father’s refusal to respect the child’s chosen name and preferred pronouns. The counselor further testified regarding a study that showed that suicide rates among transgender and gender nonbinary people are halved if the individual feels that their pronouns are respected in their daily lives.

May 10, 2023

Appellate Division, First Department

The parties’ unsuccessful investments into various business interests during the marriage are not subject to scrutiny for wasteful dissipation in the absence of any evidence that the defendant acted recklessly or in bad faith

  In Parker v Parker, 2023 WL 3236134 (1st Dept.,2023) the Appellate Division affirmed a judgment which to the extent appealed from determined that SICM Management LLC, Far East Restaurant Partners/Bice Australia, Green Partners LLC, and KNIC Properties LP had no value as of date of commencement, thus making no distribution of these businesses, and credited plaintiff wife $2,440,618.03 representing 30% of the value of Next Jump LLC as of date of commencement and $818,693.20 representing 40% of the value of Maris–Cathare Wines as of date of commencement; declined to credit the wife for defendant husband’s alleged wasteful dissipation of marital assets; declined to award the wife any spousal maintenance; determined that the apartment located at 4 East 66th Street was marital property to be immediately sold, with the net proceeds subject to equal distribution; declined to award the wife counsel fees, and declined to impose sanctions on the wife, except that it modified the judgment to the extent of crediting the wife 50% of the value of Next Jump and Cathare, and otherwise affirmed, without costs.

  The Appellate Division found  that the marital share of Next Jump was valued based on a buyout offer near the date of commencement, which was declined by the parties, for $8,135,393.42, and the husband testified that the marital share of assets owned by Cathare were worth approximately $2 million. The remaining business interests were assigned zero value, and in the absence of any evidence to the contrary, there was no basis to reverse this finding.

  The Appellate Division held that where both spouses equally contribute to a marriage of long duration, the division should be as equal as possible. The parties were married for 17 years, during which the plaintiff managed the parties’ households and acted as the children’s primary caretaker, and she held title with the defendant to Cathare and Next Jump, reflecting their intention to jointly own these investments fueled by marital funds. It found that the plaintiff should have been credited 50% of the value of these business interests.

  The Appellate Division held that the court properly rejected the plaintiff’s wasteful dissipation claims. The parties’ unsuccessful investments into various business interests during the marriage are not subject to scrutiny in the absence of any evidence that the defendant acted recklessly or in bad faith.

The Appellate Division held that in declining to award maintenance, the court properly considered the factors set forth in Domestic Relations Law § 236(B)(6), including the considerable equitable distribution award at her disposal. The parties’ lavish marital lifestyle came to an end in 2012, years prior to the commencement of the divorce, when the defendant left his position at Deutsche Bank to embark on his own business endeavors.

The Appellate Division held that the court providently exercised its discretion in ordering that plaintiff pay her own counsel fees in view her distributive award, and the unreasonable positions she adopted during the litigation, which delayed the proceedings and incurred additional counsel fees

Appellate Division, Second Department

The court properly considered the financial assistance the plaintiff received from his parents in deciding whether he was the monied spouse. He had the resources to pay far more than the defendant incurred in counsel fees, and he had a net worth that was exponentially greater than that of the defendant at the outset of the marriage

  In Plotkin v Esposito-Plotkin, --- N.Y.S.3d ----, 2023 WL 3215307, 2023 N.Y. Slip Op. 02336(2d Dept.,2023) shortly before their marriage in 2011, the parties executed a prenuptial agreement, which stated that the defendant had a net worth of approximately $350,000 while the plaintiff’s net worth was approximately $11.5 million, primarily based upon his beneficial interests in two irrevocable trusts valued at $11 million. The defendant stopped working in 2013 after the birth of the parties’ first child. In November 2018, the plaintiff moved out of the marital home. In December 2018, the plaintiff commenced the action for a divorce. In February 2019, the parties executed a pendente lite stipulation in which the plaintiff agreed to pay for the vast majority of the defendant’s and the children’s living expenses, in addition to $20,000 in counsel fees to the defendant’s attorneys. In October 2019, the defendant moved, inter alia, for an award of interim counsel fees of $75,000. At that point, the defendant had incurred approximately $50,000 in counsel fees and costs, while the plaintiff had incurred more than $100,000 in counsel fees. Supreme Court directed the plaintiff to pay interim counsel fees to the defendant’s attorneys of $50,000. The plaintiff failed to pay the fee award. In June 2020, the defendant moved, inter alia, to hold the plaintiff in criminal contempt. The plaintiff opposed, arguing that he was financially unable to pay the award. Supreme Court held the plaintiff in civil contempt without a hearing for his failure to pay the interim counsel fees. The Appellate Division affirmed. It held that Supreme Court properly determined that the plaintiff was the monied spouse. Since the defendant stopped working after the birth of the parties’ first child the plaintiff supported the family, either through his employment with his father’s business or through direct assistance from his parents. The court properly considered the financial assistance the plaintiff received from his parents in deciding whether he was the monied spouse. The plaintiff had the resources to pay far more than the defendant incurred in counsel fees, and he had a net worth that was exponentially greater than that of the defendant at the outset of the marriage. The Appellate Division held that the defendant did not clearly violate 22 NYCRR 202.16(k)(2) by submitting an eight-month-old statement of net worth with her motion,  for interim counsel fees, nor did the Supreme Court improvidently exercise its discretion in accepting it. The plaintiff’s contention that the defendant’s statement of net worth failed to accurately describe her financial circumstances because it did not include benefits she received under the parties’ pendente lite stipulation was without merit. The defendant included the pendente lite stipulation with her moving papers and, as a result, the information contained in it  was before the court. Moreover, the defendant submitted “appropriate evidence” demonstrating substantial compliance with 22 NYCRR 1400.2 and 1400.3, which, among other things, require attorneys in domestic relations matters “to provide [their] client[s] with written, itemized bills at least every 60 days”.

  Regarding the Supreme Court’s civil contempt finding, in the absence of  a material factual issue, the plaintiff was not entitled to an evidentiary hearing before being held in civil contempt.

Appellate Divison, Third Department

One parent may be held accountable for the neglectful acts of the other if he or she knew or should reasonably have known that the child was in danger

In Matter of Nina W, --- N.Y.S.3d ----, 2023 WL 3235311, 2023 N.Y. Slip Op. 02355 (3d Dept.,2023) Respondent was the mother of a child (born in 2003). The child lived with the mother “on and off” for the first half of her life, otherwise residing with a maternal aunt. Following one extended absence on the mother’s part, the father was awarded physical custody of the child, with the mother retaining joint legal custody. In July 2020, petitioner commenced this neglect proceeding against the mother, alleging, as relevant here, that she placed the child at imminent risk of harm by allowing the child to remain in the father’s home. After a fact-finding hearing, Family Court determined that the child’s condition was impaired or in imminent danger of being impaired and that the harm to the child arose from the mother’s abdication of her parental responsibilities and failure to exercise a minimum degree of care in providing the child with proper supervision, and the court accordingly adjudged the child neglected. The Appellate Division affirmed. It pointed out that, one parent may be held accountable for the neglectful acts of the other if he or she knew or should reasonably have known that the child was in danger. The mother did not dispute that the child suffered physical, mental or emotional impairment while living in the father’s home, nor did she deny her contemporaneous knowledge of the child’s impairment. Rather, she asserted that she could not neglect the child while the child was out of her physical custody.  The Appellate Division held that parents may not avoid their responsibilities to their children merely because the children are not in their custody. One of the allegations of neglect was based on events that occurred the same year the petition was filed: when approached by a caseworker to see whether the mother would be willing to allow the child to temporarily reside with her, the mother declined, despite knowing that the child’s residence in the father’s home was exposing her to the father’s drug and alcohol abuse. The mother also declined to otherwise plan for the child, preferring that she go to a group home or adolescent facility. By failing to plan for her child and allowing her to remain in the father’s home, the mother did not act as a reasonable and prudent parent, and this failure exposed the child to the imminent threat of further impairment. “The fact that the child had disciplinary problems and [the mother] had initially sought assistance does not foreclose a finding of neglect where the parent thereafter refuses to act reasonably or to cooperate in efforts at addressing the child’s problems.

Appellate Divison, Fourth Department

Screenshots of text messages between the mother and two of the children were admissible where the identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages ”as well as grandmother’s testimony that she observed one of the children using his phone at the times the text messages were sent.

  In Matter of Thompson v Thompson, --- N.Y.S.3d ----, 2023 WL 3160145, 2023 N.Y. Slip Op. 02202 (4th Dept., 2023) the Appellate Division rejected the mother’s contention that Family Court erred in admitting into evidence two exhibits containing screenshots of text messages between the mother and two of the children. The identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages ”as well as by the maternal grandmother’s testimony that she observed one of the children using his phone at the times the text messages were sent. Further, there was no evidence ... that any omitted material was necessary for explanatory purposes, and the mother was free to introduce other text messages between herself and the child that would have resolved any purported distortion caused by admitting in evidence only portions of the text conversation.

The Appellate Division rejected the mother’s contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child must zealously advocate the child’s position. However, an attorney for the child is entitled to advocate a position that is contrary to a child’s wishes when the attorney is “convinced ... that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child (22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child’s wishes, the attorney is still required to inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position. Here, the children’s wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record established that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children.

Supreme Court

In awarding possession of a companion animal in a divorce action the best interest of the animal, a dog,  warranted a time-sharing schedule

  In Conte v Conte, 2023 WL 3239943 (Table), 2023 N.Y. Slip Op. 50409(U) (Sup Ct, 2023) the parties to this divorce action had been living apart since July 17, 2022. On April 18, 2023 a hearing was held to determine custody of the parties’ dog, “King”. The Court observed that pursuant to DRL § 236(B)(5)(15), in awarding possession of a companion animal in a divorce action the court shall consider the best interest of such animal. In determining the best interests of a companion animal under DRL § 236(B)(5)(15), the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive.” L.B. v. C.C.B. 77 Misc 3d 429 [Kings County Supreme Court, 2022]. The Court found that both parties had been involved in King’s life, although the wife had been more involved in his medical care. Both parties were available and willing to care for King. The court determined that a time-sharing schedule was in King’s best interest. 

May 1. 2023

Appellate Division, First Department

Executive Order 8.202.8 tolled the statute of limitations until that order and subsequent Executive Orders extending the tolling period were rescinded. Since the period of the toll must be excluded from the calculation of the filing deadline, the juvenile delinquency petitions were timely filed on July 2, 2021

In Matter of Isaiah H., --- N.Y.S.3d ----, 2023 WL 2603170, 2023 N.Y. Slip Op. 01587 (1st Dept.,2023) the Appellate Division, reversed an order which granted the respondent’s motion to dismiss the petitions charging him with acts, which, if committed by an adult, would constitute crimes, and the matter was remanded to Family Court for further proceedings. It held that Family Court erred in dismissing the petitions as untimely filed. By Executive Order No. 8.202.8, issued on March 20, 2020, due to the Covid–19 pandemic, the “time limit[s] 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” were “tolled” (9 NYCRR 8.202.8; see Matter of Oustatcher v. Clark, 198 A.D.3d 420, 421, 155 N.Y.S.3d 12 [1st Dept. 2021]). “A toll suspends the running of the applicable period of limitation for a finite time period, and the period of the toll is excluded from the calculation of the relevant time period. However, a suspension “simply delays expiration of the time period until the end date of the suspension”. By its plain terms, Executive Order 8.202.8 tolled the statute of limitations, until that order and subsequent Executive Orders extending the tolling period were rescinded by Executive Order 8.210, issued on June 24, 2021, and effective the next day (9 NYCRR 8.210). Since the period of the toll must be excluded from the calculation of the filing deadline, the juvenile delinquency petitions were timely filed on July 2, 2021. Respondent allegedly committed his first unlawful act on December 21, 2019. Normally, the filing deadline for the petitions would have been the respondent’s 18th birthday – June 7, 2021, which was 534 days after he allegedly committed the first act. When the first executive order took effect on March 20, 2020, there were 444 days remaining before the respondent’s 18th birthday. By adding 444 days to June 24, 2021, when the executive order’s tolling provisions were terminated, the Agency’s deadline for filing the petitions was August 25, 2022. Here, the Agency refiled and served the second set of petitions on July 2, 2021, only eight days after the executive orders were rescinded. The order rescinding the prior Executive Orders meant that the statute of limitations would start running again, “picking up where it left off” (Artis v. District of Columbia, ––– U.S. ––––, 138 S. Ct. 594, 601, 199 L.Ed.2d 473 [2018]).

 

Appellate Division, Second Department

Where the plaintiff advised the defendant in an email that he would be “willing to cover the entire cost of [the child’s] education” if the child attended a particular school Supreme Court providently exercised its discretion in directing the plaintiff to pay 100% of the child’s tuition

In Abayomi v Guevara, --- N.Y.S.3d ----, 2023 WL 2904377, 2023 N.Y. Slip Op. 01880 (2d Dept.,2023) the plaintiff moved, inter alia, to modify the judgment of divorce to permit him to pay a portion of his child support obligation directly to the private school in which the child had been enrolled to cover his share of the tuition payment. There are no provisions in the order of support pertaining specifically to educational expenses or apportioning responsibility for that add-on expense between the parties. Supreme Court, denied his motion and, sua sponte, directed the plaintiff to pay 100% of the child’s tuition. The Appellate Division affirmed and rejected the plaintiffs argument that the Supreme Court improvidently exercised its discretion by requiring him to pay 100% of the child’s tuition. The evidence demonstrated that the plaintiff decided that the child should be enrolled in a particular private school, he commenced the application procedures for that school, and when he sought the defendant’s cooperation in the process, he advised the defendant in an email that he would be “willing to cover the entire cost of [the child’s] education” if the child attended that school. Further, the plaintiff did not contend that he was unable to support himself and pay 100% of the child’s tuition. Under the circumstances, it held that the Supreme Court providently exercised its discretion in directing the plaintiff to pay 100% of the child’s tuition (see Sinnott v. Sinnott, 194 A.D.3d at 877, 149 N.Y.S.3d 441; Matter of Weissbach v. Weissbach, 169 A.D.3d at 704, 95 N.Y.S.3d 85).

 

The presumption that parental access is in the best interests of the child, even when that parent is incarcerated, was overcome by a showing, that parental access would be harmful to the child’s welfare or not in the child’s best interests 

In Matter of Romero-Flores v Hernandez, --- N.Y.S.3d ----, 2023 WL 2590751, 2023 N.Y. Slip Op. 01516(2d Dept.,2023)  the father and the mother were the parents of one child. In January 2019, the father, who had been incarcerated since August 2011, filed a petition seeking parental access to the child. At the close of the father’s case at a hearing on his petition, the Family Court granted the motion of the attorney for the child to dismiss the petition. The Appellate Division affirmed. It held that parental access with a noncustodial parent is presumed to be in the best interests of the child, even when that parent is incarcerated. However, the presumption may be overcome upon a showing, by a preponderance of the evidence, that parental access would be “harmful to the child’s welfare or not in the child’s best interests.” The evidence demonstrated that the father had been incarcerated since 2011 for attempted murder and arson. The father had set fire to the mother’s vehicle and that fire spread to the mother’s family’s house. The fire caused the death of the child’s uncle and endangered the child as well as the mother, who the father knew were inside the house at the time. Additionally, the child was eight months of age at the time the father was incarcerated, and the father has had no contact with the child since that time. At the time of the hearing, the child was 11 years old and would be more than 18 years of age at the time of the father’s earliest release date. Under these circumstances, the court properly granted the motion

Where the plaintiff demonstrated that three years had passed since the judgment of divorce was entered, Supreme Court erred in summarily denying the plaintiff’s motion to upwardly modify the defendant’s basic child support obligation

  In Cooper v Oliver --- N.Y.S.3d ----, 2023 WL 2994847, 2023 N.Y. Slip Op. 01981(2d Dept.,2023)  the plaintiff moved, to modify the judgment of divorce to, among other things, upwardly modify the defendant’s basic child support obligation. Supreme Court, denied the motion. The Appellate Division held that as  relevant here, a court may modify an award of child support where three years have passed since the award was entered, last modified, or adjusted (see Domestic Relations Law § 236[B][9][b][2][ii][A]). In support of the plaintiff’s motion, the plaintiff demonstrated that three years had passed since the judgment of divorce was entered.  Under these circumstances, regardless of whether the plaintiff demonstrated a substantial change in circumstances, the Supreme Court erred in summarily denying that branch of the plaintiff’s motion which was to modify the judgment of divorce to upwardly modify the defendant’s basic child support obligation.

Consent to adoption is not required of a parent who evinces an intent to forego his or her parental rights and obligations by his or her failure for a period of six months to contact or communicate with the child or the person having legal custody of the child although able to do so

In Matter of Ryan --- N.Y.S.3d ----, 2023 WL 2994924, 2023 N.Y. Slip Op. 02010 (2d Dept.,2023) the child was born in March 2017. The child’s mother was killed in November 2018. In April 2021, the father was convicted of murder in the second degree for the killing of the mother. In June 2020, the petitioners filed a petition to adopt the child, alleging, inter alia, that pursuant to Domestic Relations Law § 111(2)(a), the father’s consent to adoption was not required. After a hearing, Family Court determined that the father had abandoned the child and that the father’s consent to the adoption of the child, therefore, was not required. The Appellate Division affirmed. It held that the petitioners met their burden of establishing, by clear and convincing evidence, that the father abandoned the child, and that the father’s consent to the adoption therefore was not required. Under Domestic Relations Law § 111(2)(a), consent to adoption is not required of a parent who evinces an intent to forego his or her parental rights and obligations by his or her failure for a period of six months to contact or communicate with the child or the person having legal custody of the child although able to do so. Here, the evidence at the hearing established that the father had no contact with the child since 2018. The father’s incarceration did not absolve him of the responsibility to maintain contact with the child. In addition, the evidence established that between March 2019, when the petitioners obtained custody of the child, and March 2022, when the hearing occurred, the father did not send any letters or gifts to the child or provide any financial support.

 

Custody determinations should generally be made only after a full and plenary hearing and inquiry. 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

In Matter of Baez-Delgadillo v Moya, --- N.Y.S.3d ----, 2023 WL 2994903 (Mem), 2023 N.Y. Slip Op. 01994 (2d Dept.,2023) the parties, who were never married to each other, were the parents of a child born in 2012. The child had been in the physical custody of the mother since his birth. In September 2019, the mother filed a petition for sole legal and physical custody of the child. On December 16, 2021, the Supreme Court awarded the mother temporary custody of the child, awarded the father supervised parental access and directed the father to enroll in therapy. On the record that day, the court directed the father to enroll in batterer’s intervention and alcohol treatment programs. The father failed to comply with the court’s directives. In an order dated March 2, 2022, the court, without a hearing, granted the mother’s petition for sole legal and physical custody and suspended the father’s parental access to the child based on his failure to attend alcohol treatment and therapy. The Appellate Division reversed, It held that custody determinations should generally be made only after a full and plenary hearing and inquiry” (see S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193). 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. Similarly, visitation determinations should generally be made after a full evidentiary hearing to ascertain the best interests of the child”. Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties' child.  Moreover, the court failed to articulate the factors and evidence material to its determination The Supreme Court also erred in suspending the father’s parental access without determining the best interests of the child. Furthermore, the court improperly conditioned the father’s future parental access or reapplication for parental access rights upon his compliance with treatment The matter was remitted to the Supreme Court, to conduct a hearing and for new determinations.

 

Where a willful violation of an order of support is found, the determination as to the appropriate sanction lies within the Family Court’s discretion

In O’Keeffe, v O’Keeffe,  --- N.Y.S.3d ----, 2023 WL 2994936, 2023 N.Y. Slip Op. 02006 (2d Dept.,2023)  the Support Magistrate, inter alia, found that the father willfully failed to comply with his child support obligations and in an order of commitment the Family Court, in effect, confirmed so much of the order of disposition as found that the father willfully failed to comply with his child support obligations, and committed the father to the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount of $15,000. The Appellate Division rejected the father’s argument on appeal that the Family Court improperly issued an order of commitment since less drastic enforcement remedies were available, and that the purge amount set by the court was excessive. It held that where, as here, a willful violation of an order of support is found, the determination as to the appropriate sanction lies within the Family Court’s discretion. Under the circumstances of this case, the court did not improvidently exercise its discretion.

Appellate Divison, Fourth Department

Mother neglected the children by, among other things, failing to provide a safe environment for them.

           In Matter of Cameron J.S., --- N.Y.S.3d ----, 2023 WL 2547887, 2023 N.Y. Slip Op. 01416 (4th Dept.,2023) the Appellate Division affirmed an order which adjudged that the mother neglected the children by, among other things, failing to provide a safe environment for them. (Family Ct Act § 1012 [f] [i] [B]). The evidence presented by the petitioner established that one of the mother’s adult children had previously sexually abused one of the subject children over the course of several years. That adult child was also mentally unstable, volatile, and violent, having physically fought with others in the home, punched holes in walls, and destroyed other property in the home. The evidence further established that the children witnessed those events and were, at times, the victims of those events. The police were repeatedly called to the residence to address issues involving the adult child, and his mere presence at the house left the subject children “uncomfortable” and “terrified.” Despite the petitioner’s requests that the mother adhere to a safety plan and ask the adult child to move from the residence, the evidence established that the adult child remained a constant presence in the home and that the mother refused to cooperate with the petitioner. It concluded that the evidence supported the determination that the mother failed to provide adequate supervision of the children. The mother’s actions in continuing to allow the adult child to reside in or visit the home placed the children “at substantial risk of harm.

April 16, 2023

Appellate Division, First Department

Appeal was rendered moot by the entry of the judgment of divorce in the underlying matrimonial matter, which terminated the automatic orders for the purpose of enforcement

In Bloom v Hilpert, --- N.Y.S.3d ----, 2023 WL 2875314 (Mem), 2023 N.Y. Slip Op. 01859 (1st Dept, 2023) the appeal from the order which denied defendant’s motion to direct plaintiff to reinstate family health insurance coverage pendente lite was dismissed as moot. The appeal was rendered moot by the entry of the judgment of divorce in the underlying matrimonial matter, which terminated the automatic orders for the purpose of enforcement and rendered the parties ineligible for joint health coverage

 

Appellate Division, Second Department

The award maintenance award was not improper even though it exceeded the amount the defendant requested in her statement of proposed disposition. 22 NYCRR 202.16[h) which requires the submission of a statement of proposed disposition does not abrogate judicial statutory authority to determine the amount of maintenance

In Novick v Novick, --- N.Y.S.3d ----, 2023 WL 2669469, 2023 N.Y. Slip Op. 01684 (2d Dept.,2023) the parties were married in 1992, and had three emancipated children. The plaintiff commenced this action for divorce in January 2017. The plaintiff, who was 57 years old at the time of trial, was self-employed in a dental practice and was the primary wage earner during the parties’ 24–year marriage. The defendant was a homemaker and the primary caretaker of the parties’ children and was not employed outside the home during the majority of the duration of the parties’ marriage. The judgment of divorce,  dated August 7, 2019, inter alia, (1) awarded the defendant maintenance of $12,000 per month for nine years, based on income imputed to the defendant of $40,000 per year and income imputed to the plaintiff of $375,000 per year, (2) awarded the defendant 33% of the fair market value of the plaintiff’s dental practice, (3) awarded the defendant pendente lite arrears of $29,245.76, (4) awarded the defendant counsel fees of $55,000, and (5) awarded the plaintiff one half of the defendant’s Morgan Stanley IRA account. The Appellate Division affirmed these awards.

The Appellate Division affirmed the maintenance award and held that the court providently exercised its discretion in imputing income of only $40,000 per year to the defendant. The evidence established that while the defendant had earned two master’s degrees during the marriage, she was only employed outside the home for a brief time during the 24–year marriage during which time her earnings were not substantial. The award was not improper even though it exceeded the amount the defendant requested in her statement of proposed disposition (see 22 NYCRR 202.16[h). The court rule which requires the submission of a statement of proposed disposition does not abrogate judicial statutory authority to determine the amount of maintenance (see generally N.Y. Const art VI, § 30; People v. Ramos, 85 N.Y.2d 678, 687–688, 628 N.Y.S.2d 27 ).

 

The Appellate Division held that the Supreme Court providently exercised its discretion in awarding the defendant 33% of the value of the plaintiff’s dental practice. The 33% share accounted for the defendant’s direct and indirect contributions, including that of primary caretaker of the parties’ three children. The court did not overvalue the plaintiff’s dental practice by applying a 35% capitalization rate. The court appointed a forensic expert, who explained that the capitalization rate for professional service companies is typically 33.33% and that he applied a slightly higher capitalization rate to account for the “slightly above-average risk” associated with the plaintiff’s dental practice, and the court providently exercised its discretion in crediting the expert. It held that Supreme Court did not engage in impermissible double counting by distributing to the defendant a share of the dental practice in addition to maintenance, as the plaintiff’s dental practice constituted a tangible, income-producing asset, rather than an intangible asset (see Keane v. Keane, 8 N.Y.3d 115, 828 N.Y.S.2d 283).

However, the Supreme Court improvidently exercised its discretion in failing to provide for the distribution of the funds in the T.D. Ameritrade account titled in the defendant’s name. The defendant failed to provide any evidence that the account was her separate property, and thus, it was subject to equitable distribution. It modified the judgment of divorce to equally divide the proceeds from that account between the parties. And, since Supreme Court failed to explain how it arrived at its determination that the plaintiff owed the defendant $29,245.67 for pendente lite arrears, it remitted the matter to the Supreme Court for a hearing on the issue.

While the expressed wishes of the children to remain in Long Island with the father was not controlling, they were entitled to great weight, as the children were 12 and 13 years old, respectively, at the time of the hearing

  

In Matter of Morgan v Eckles, --- N.Y.S.3d ----, 2023 WL 2669284, 2023 N.Y. Slip Op. 01678 (2d Dept., 2023) the Appellate Division held that Family Court properly denied the mother’s petition to modify the custody provisions of the judgment of divorce to allow her to relocate with the children to Rhode Island, and granted the father’s petition, in effect, to modify the custody provisions of the judgment of divorce to award him sole residential custody of the children, with certain parental access to the mother. The Family Court’s determination was supported by a sound and substantial basis in the record. Moreover, while the expressed wishes of the children to remain in Long Island with the father was not controlling, they were entitled to great weight, as the children were 12 and 13 years old, respectively, at the time of the hearing (see Matter of Guerra v. Oakes, 160 A.D.3d 855, 857, 74 N.Y.S.3d 102).

 

Where the matter has been submitted to the court, the court may not order an action discontinued except upon the stipulation of all parties appearing in the action

  In Matter of Johnson v Lomax, --- N.Y.S.3d ----, 2023 WL 2669267 (Mem), 2023 N.Y. Slip Op. 01675(2d Dept.,2023) the petitioner commenced a family offense proceeding against the respondent, his sister. The Family Court issued a temporary order of protection, in favor of the petitioner and against the respondent. A hearing was held on April 16, 2021, and after the hearing, the court found that the petitioner established, by a preponderance of the evidence, that the respondent committed a family offense. Thereafter, in an order dated April 26, 2021, the court vacated the temporary order of protection and directed that the petition was withdrawn. The Appellate Division reinstated the petition. It held that where, as here, the matter has been submitted to the court, the court may not order an action discontinued except upon the stipulation of all parties appearing in the action (CPLR 3217[b]). In this case, there was no stipulation from the parties. Thus, the court erred in directing that the petition was withdrawn. The petition was reinstated, and the matter was remitted to the Family Court, for further proceedings consistent herewith.

Trial courts are without authority to vacate or modify orders of the Appellate Division

In Greco v Greco, --- N.Y.S.3d ----, 2023 WL 2669251 (Mem), 2023 N.Y. Slip Op. 01666 (2d Dept.,2023)  the defendant moved in the Supreme Court, to modify a decision and order of the Appellate Division dated May 16, 2018, which affirmed, a prior order of the Supreme Court, dated April 20, 2016, which, inter alia, directed the plaintiff to pay certain counsel fees incurred by the defendant directly to the defendant’s counsel. Supreme Court denied the defendant’s motion on the ground that it lacks authority to modify an order of the Appellate Division. The Appellate Division held that Supreme Court properly denied the defendant’s motion which to modify the May 2018 order. Trial courts are without authority to vacate or modify orders of the Appellate Division. (Wiener v. Wiener, 10 A.D.3d 362, 363, 780 N.Y.S.2d 759).

 

The court did not improvidently exercise its discretion in declining to impute as income the cost of the apartment that the defendant’s corporate employer maintained for him in Los Angeles where he was traveling there for business on a regular basis 

In Lieberman-Massoni v Massoni, --- N.Y.S.3d ----, 2023 WL 2778332, 2023 N.Y. Slip Op. 01786 (2d Dept., 2022) the  parties were married on August 31, 1997, and had two children. In February 2012, the plaintiff commenced the action for a divorce. A trial on the issues of equitable distribution, maintenance, and child support commenced in June 2014. Evidence at the first trial showed that the defendant, a high-ranking executive at his corporate employer, had received several grants of shares in the company, called B–Units, throughout his employment. The parties’ neutral appraiser testified that the value of the defendant’s B–Units as of the date of commencement of this action was $1,126,000, based upon a formula value set forth in the employer’s operating agreement and a discount for lack of marketability and control. The defendant testified that the business as of the time of trial was “horrendous.” However, approximately two weeks after the close of the first trial, the plaintiff discovered that the defendant’s corporate employer had sold one of its divisions which yielded the defendant a distribution of more than $8 million, based upon his B–Units. The plaintiff moved, inter alia, to reopen the trial. In an order dated December 4, 2014  Supreme Court granted the motion. The court also reopened discovery. The defendant appealed and the order was affirmed. The new trial was held in September 2017. The Supreme Court issued a decision after trial dated October 5, 2018 and a judgment of divorce dated December 21, 2018, was entered.

 

The Appellate Divison held that the Supreme Court providently exercised its discretion in determining that the defendant’s B–Units that were granted before 2015 should be valued as of June 2017, immediately prior to the second trial, but that the plaintiff should be awarded only a percentage of the value of the B–Units as of that date, not a percentage of the B–Units themselves. Although the defendant was a high-ranking executive at his corporate employer, the court correctly determined that the value of these B–Units was not solely attributable to his actions. The court providently exercised its discretion, based on equitable and other considerations, to set the valuation date as of June 2017, rather than at the commencement of this action. Moreover, the  Supreme Court did not improvidently exercise its discretion in awarding the plaintiff a percentage of the value of the defendant’s B–Units rather than a percentage of the B-units themselves as the record did not demonstrate that the distribution of the B–Units in-kind by transferring a percentage of the B–Units to her, by assigning a percentage of the interest to her, or by distributing a percentage of the defendant’s future distributions to her would be practicable and not unduly burdensome. The court’s determination that the plaintiff should not share in future distributions, nor benefit in any value increases of the B–Units subsequent to June 2017, was a provident exercise of discretion in light of the defendant’s promotion in 2015 which provided him a more active role in the operation of his corporate employer. Nor did the Supreme Court improvidently exercise its discretion in crediting the defendant’s expert valuation of the B–Units over the valuation of the plaintiff’s experts. Since the plaintiff’s experts failed to discount the valuation of the B–Units based upon a lack of marketability and control, the court did not improvidently exercise its discretion in adopting the valuation of the defendant’s expert. Further, the court did not improvidently exercise its discretion in determining that the formula value testified to by the defendant’s expert more closely approximated the fair market value of the defendant’s B–Units than the value based upon a potential sale of the company, where there was no evidence that the sale of the corporate employer was imminent.

 

Considering the plaintiff’s substantial indirect contributions to the defendant’s business, including caring for the parties’ children and maintaining the parties’ residence in New York while the defendant worked for the majority of the time in Los Angeles, the Supreme Court providently exercised its discretion in awarding the plaintiff 35% of the value of the defendant’s B–Units as of the date of commencement of the second trial, as well as 35% of the defendant’s distribution from the 2014 sale of one of the divisions of the defendant’s corporate employer . The Supreme Court also providently exercised its discretion in determining that certain other B–Units that the defendant was granted in 2015 were his separate property. Bonus payments, though paid after commencement of a matrimonial action, may be viewed as marital property where such payments are compensation for past performance and are not tied to future performance. However, where a bonus is an incentive for future services to be rendered after commencement of an action, the bonus is separate property. Here, the evidence showed that the B–Units granted to the defendant in 2015, three years after the commencement of this action, were an incentive for future performance, not compensation for work done during the marriage.

 

The Appellate Division found that the court did not improvidently exercise its discretion in declining to impute as income the cost of the apartment that the defendant’s corporate employer maintained for him in Los Angeles. The defendant testified at the second trial that he was again traveling there for business on a regular basis 

Although the defendant paid for all of the parties’ household expenses out of a joint checking account, it was  undisputed that the defendant funded the account with post-commencement earnings. The plaintiff’s spending during the pendency of the action, which far exceeded the parties’ agreed-to “pre-commencement standard of living,” had nearly depleted all of the parties’ joint accounts. Accordingly, the Supreme Court did not improvidently exercise its discretion when it awarded the defendant a credit of 50% of the reduction in the mortgage principal made during the pendency of the action.

The Appellate Division held that Supreme Court providently exercised its discretion in directing the defendant to pay 70% of the plaintiff’s reasonable and necessary attorney’s fees and expert fees (see e.g. Weiss v. Nelson, 196 A.D.3d 722, 726, 152 N.Y.S.3d 143).

 

No appeal lies from an order denying reargument of a decision

 

In Lieberman-Massoni v Massoni, 2023 WL 2778342 (2d Dept.,2023) the Appellate Division held that no appeal lies from an order denying reargument of a decision, or from an order made upon reargument of a decision.

 

The competence of an expert in a particular subject may derive from long observation and real world experience and is not dependent upon formal training or attainment of an academic degree in the subject

In Lieberman-Massoni v Massoni,  --- N.Y.S.3d ----, 2023 WL 2778339, 2023 N.Y. Slip Op. 01788(2d Dept.,2023) the Appellate Division affirmed an order which awarded the plaintiff $716,931.50 in attorney’s fees and $72,110 in expert fees. It held, inter alia, that it is within the Supreme Court’s sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of serious mistake, an error of law, or an improvident exercise of discretion. An expert is qualified to proffer an opinion if he or she possesses ‘the requisite skill, training, education, knowledge, or experience to render a reliable opinion. The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject. 

Supreme Court

Where the mother abducted the child to India, a country that is not a member to the Hague Convention, during the midst of an ongoing custody and divorce proceeding in New York, custody was awarded to the father and she was denied all relief.

In S.C. v. R.N.,--- N.Y.S.3d ----, 2023 WL 2801971, 2023 N.Y. Slip Op. 23092 (Sup Ct, 2023) the mother abducted the child to India, a country that is not a member to the Hague Convention,- during the midst of an ongoing custody and divorce proceeding in New York. The child was autistic and had special needs which were being met by various services provided to her in New York, but which had now been terminated. On November 10, 2022, Plaintiff fled with the child to India. On November 17, 2022, the Court issued an order directing Plaintiff to return the child to New York within 72 hours, and granting Defendant sole interim custody in the event Plaintiff failed to comply. On December 19, 2022, the Court granted the motion of Plaintiff’s prior counsel to be relieved. The Court also found Plaintiff in contempt of Court, issued a warrant for her arrest, deemed Defendant to have sole custody of the child, and granted Defendant exclusive use and occupancy of the marital apartment. .A warrant for Plaintiff’s arrest was issued on December 20, 2022, as was a separate order granting Defendant a final order of sole legal and physical custody of the child. An inquest was held on April 4, 2023. Defendant was granted sole legal and physical custody of the child. No parental access was awarded to Plaintiff until such time as she participates in proceedings in New York. Considering the various relevant factors, and especially in consideration of Plaintiff’s outrageous and egregious conduct in absconding with the child, a distributive award of marital assets 100% to Defendant and 0% to Plaintiff was equitable and just. The Court noted that in K.K. v. P.K.M., 52 Misc.3d 1220(A), 2016 WL 4441387 (Supreme Court, Westchester County 2016), the Court was faced with identical circumstances — the abduction of a child to India. The Court there found that the mother’s abduction of the child to India, refusal to return to the marital home, and disobedience of Court orders to return, shocked the conscience and should be considered in equitable distribution. Similar to this matter, the mother there also severely limited the father’s ability to communicate with the child. This Court adopted the reasoning of the K.K. Court and found it significant that not only had Plaintiff refused to return and disobeyed orders of the Court, but had the gall to e-mail the Court to indicate she considered this action withdrawn and had commenced proceedings in India. In light of her egregious marital fault, the Plaintiff  forfeited her right to a share of the marital assets. The Court concluded that the Plaintiff was not entitled to maintenance and directed Defendant to pay a counsel fee award of $125,000.

April 1, 2023 

Appellate Division, Second Department

Improvident exercise of discretion in failing to conduct an in camera interview given the mother’s testimony that the child’s fear of visiting her in person was due to outside influence and the child was of such an age and maturity that his preferences were  necessary to create a sufficient record

 

In Badal v Wilkinson, --- N.Y.S.3d ----, 213 A.D.3d 926, 2023 WL 2147225, 2023 N.Y. Slip Op. 00997 (2d Dept.,2023) the mother and the father had one child together, born in 2013. When the child was one year and three months old, the mother was arrested. She was detained and subsequently deported to Trinidad and Tobago. In 2019, the mother filed a petition seeking telephone, video, and in-person parental access in Trinidad and Tobago. After a hearing, the Family Court granted the mother’s petition for phone and video parental access with the child and, in effect, denied in-person parental access in Trinidad and Tobago. The Appellate Division reversed. It held that the decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court. Here, the court improvidently exercised its discretion in failing to conduct an in camera interview of the child, particularly given the mother’s testimony that the child’s fear of visiting her in person was due to outside influence. The child was of such an age and maturity that his preferences were necessary to create a sufficient record to determine his best interests. It remitted the matter to Family Court to conduct an evidentiary hearing and an in camera interview with the child, to develop a sufficient record, including the practical effect of the COVID–19 pandemic on the parties, vaccination status of the mother and child, the mother and maternal grandmother’s ability and willingness to coordinate travel arrangements, and factual details as to the mother’s criminal history, and for a new determination of the mother’s petition for in-person parental access.

 

Supreme Court erred in awarding the plaintiff counsel fees, as neither the plaintiff nor her attorney submitted any documentation or evidence that would have supported such an award.

  In Kao v Bonalle, --- N.Y.S.3d ----, 2023 WL 2590953, 2023 N.Y. Slip Op. 01543 (2d Dept., 2023) the  parties were married on July 26, 2007, and had one child together, born in 2008. The plaintiff commenced this action for a divorce in July 2013. Supreme Court determined that the defendant had made certain excessive charges on his American Express credit card from January 2015 to May 2017. The court determined that the plaintiff was entitled to $138,870.84, which is equal to 50% of the excessive charges as calculated by the court. The court also determined that, in contemplation of this matrimonial action, the defendant transferred $150,000 into two 529 tuition plan accounts held on behalf of his two children from a previous marriage and that the plaintiff was entitled to $75,000, which was equal to 50% of the total funds transferred. The court also determined that the parties were to equally divide the net proceeds of the sale of a condominium located in Ohio, and determined that the defendant was to pay two-thirds of the plaintiff’s counsel fees, excluding the costs associated with the plaintiff’s appeal of a prior order in this action. The Appellate Division held, inter alia,  that (1) Supreme Court providently exercised its discretion in awarding the plaintiff 50% of the excessive charges made by the defendant on his American Express card during the subject post-commencement period of time but recalculated the amount of the  award due to errors in calculation; (2)  Supreme Court also properly awarded each party 50% of the net proceeds of the sale of the Ohio condominium; and (3) the Supreme Court erred in awarding the plaintiff counsel fees, as neither the plaintiff nor her attorney submitted any documentation or evidence that would have supported such an award. 

An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case. A party seeking to impose such a restraint must demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. 

  In Walsh v Russell, --- N.Y.S.3d ----, 2023 WL 2590848, 2023 N.Y. Slip Op. 01522(2d Dept., 2023) the mother commenced a proceeding seeking sole legal and physical custody of the child and subsequently commenced a family offense proceeding against the father. In October 2021, the attorney for the child (AFC) moved to prohibit the father from posting, uploading blogs, and displaying the likeness of the child regarding the proceedings, and from disparaging the child’s relatives in any and all public or social media forums, and to direct the father to erase, deactivate, and delete all existing postings, blogs, and likenesses of the child. In an affirmation, the AFC asserted that the father had “embarked on a social media/public campaign” with respect to the instant proceedings, and that the father had posted the child’s image, name, and allegations regarding the mother and the mother’s family members in various public forums. Family Court, inter alia, granted the AFC’s motion upon the father’s default. In January 2022, the Family Court held a hearing on the mother’s petitions. Although the father failed to appear at the hearing, the father’s attorney participated in the hearing by making objections and cross-examining the mother. In an order dated February 2, 2022, the Family Court, in effect, granted the mother’s custody petition and awarded her sole legal and physical custody of the child. The order, inter alia, prohibited the father from “posting, uploading blogs, and displaying the likeness of the child ... regarding these proceedings and disparaging the child’s relatives in any and all public forums and/or social media platforms,” and directed the father to erase, deactivate, and delete “any existing blogs and likenesses.” The Appellate Division held that the order appealed from was not entered upon the father’s default. Although the father failed to appear in person at the hearing, his counsel appeared on his behalf and participated in the hearing. It then observed that a prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression. A party seeking to impose such a restraint bears a heavy burden of demonstrating justification for its imposition. Such party must demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case (Karantinidis v. Karantinidis, 186 A.D.3d at 1503, 131 N.Y.S.3d 363). It found that the that portion of the order which directed the father to erase, deactivate, and delete “any existing blogs and likenesses” was “not tailored as precisely as possible to the exact needs of the case”. This restriction required the father to delete “any existing blogs and likenesses,” regardless of whether the blogs or likenesses relate to the child, the mother, the mother’s family, or the instant proceedings. It rejected the father’s contention that the order’s remaining restrictions on his ability to post blogs, display the likeness of the child, and disparage the child’s relatives, were constitutionally impermissible. The prior restraint was narrowly tailored to the exact needs of the case (see Kassenoff v. Kassenoff, 213 A.D.3d 822, 2023 N.Y. Slip Op. 00850, 183 N.Y.S.3d 533 [2d Dept.]).

 

Unlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to an award of interim counsel fees

In Chiarello v Chiarello, --- N.Y.S.3d ----, 2023 WL 2590863, 2023 N.Y. Slip Op. 01498 (2d Dept.,2023) in 2016, the plaintiff commenced this action for a divorce and in September 2018, the defendant moved for interim counsel fees of $25,000. On December 20, 2018, the Supreme Court directed the plaintiff to pay interim counsel fees of $20,000. The Appellate Division affirmed. It observed that the purpose of an award of interim counsel fees is to ensure that the less monied spouse will be able to litigate the action on equal footing with the monied spouse. Unlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to an award of interim counsel fees. Under the circumstances here, including the disparity of income between the parties, the plaintiff’s litigation tactics, and the evidence showing that the defendant lacked the resources necessary to continue litigating the action, the Supreme Court providently exercised its discretion in granting the defendant’s motion

The length of time after the end of the relationship and before the filing of the family offense petition during which the petitioner refrained from having contact with the respondent as a result of events giving rise to the commencement of the proceeding does not deprive the court of subject matter jurisdiction under Family Court Act § 812(1)(e).

In Matter of Eno v Illovsky, --- N.Y.S.3d ----, 2023 WL 2590808, 2023 N.Y. Slip Op. 01506 (2d Dept.,2023) petitioner was married to Lawrence Eno, who was the brother of the respondent. In December 2020, Lawrence Eno died. In February 2022, the petitioner commenced this family offense proceeding. Supreme Court issued an order granting the respondents motion to dismiss. The Appellate Division reversed and reinstated the petition. It found that  Family Court correctly determined that, after Lawrence Eno’s death, the petitioner and the respondent no longer had a relationship of affinity pursuant to Family Court Act § 812(1)(a). However, the petitioner demonstrated that the parties had been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), so as to confer subject matter jurisdiction upon the court. The petitioner demonstrated that the parties had known each other for more than 30 years, that they had a close relationship as sisters-in-law for most of this period, during which they lived within one mile of one another, frequently had dinner together, engaged in social activities in each other’s homes, attended most holiday celebrations together, supported each other during times of devastating family illnesses, and assisted each other with their respective children. That relationship need not have ended at a time relatively recent to the filing of the petition. Thus, the length of time before the filing of the petition during which the petitioner refrained from having contact with the respondent as a result of events giving rise to the commencement of this proceeding did not deprive the court of subject matter jurisdiction under Family Court Act § 812(1)(e).

Appellate Division, Third Department

Where the parties' stipulation modifying the judgment of divorce was signed, notarized and  filed with the County Clerk, Family Court lacked jurisdiction to enforce it because the parties failed to obtain a court order incorporating its terms. Family Court may only enforce or modify child support provisions contained in a valid court order or judgment.

        

In Barra v Barra, --- N.Y.S.3d ----, 2023 WL 2602640, 2023 N.Y. Slip Op. 01557 (3d Dept., 2023) Petitioner ( mother) and respondent ( father) were married in 1986, and they had six children. The parties entered into a separation and settlement agreement in 2011, which was incorporated but not merged into a 2015 judgment of divorce. Pursuant to the terms of the separation agreement, the parties agreed that any modifications to the terms of the separation agreement had to take place “in writing duly subscribed and acknowledged with the same formality” as the separation agreement.” In June 2018, through a written stipulation (hereinafter the 2018 stipulation), the parties agreed that the child support section of the separation agreement “shall be stricken and replaced with” the 2018 stipulation. On February 1, 2021, the mother filed a petition seeking to enforce the child support provisions of the judgment of divorce. The mother alleged that the father owed child support arrears pursuant to the separation agreement and judgment of divorce and that he failed to pay his share of the children’s uncovered medical expenses. The matter proceeded to a fact-finding hearing. Following the mother’s proof, the Support Magistrate found that, pursuant to the 2018 stipulation, the father had complied with his child support obligations, and that the mother failed to present a prima facie case establishing a violation of any of the pertinent terms. The Support Magistrate dismissed the mother’s petition. The Appellate Division, inter alia,  agreed with the mother’s contention that Family Court erred in considering the 2018 stipulation. Family Court is a court of limited jurisdiction and may only exert the powers granted to it by the State Constitution or by statute. Family Court may only enforce or modify child support provisions contained in a valid court order or judgment. Although the 2018 stipulation was signed, notarized, and then filed in the office of the Albany County Clerk, the parties failed to obtain a court order incorporating its terms. Accordingly, Family Court lacked subject matter jurisdiction to consider the 2018 stipulation to determine whether the father had failed to comply with his child support obligations. The proper inquiry was whether the father had complied with his child support obligations pursuant to a lawful order of support (see Family Ct Act § 453) – in this case, the judgment of divorce.

 

Appellate Division, Fourth Department

A parent who has been prohibited from direct contact with the child continues to have an obligation to maintain contact with the person having legal custody of the child

In Matter of Maria R., --- N.Y.S.3d ----, 2023 WL 2549146 (Mem), 2023 N.Y. Slip Op. 01453 (4th Dept., 2022) the Appellate Division affirmed an order which terminated the parental rights of respondent with respect to the subject child on the ground of abandonment. It held that  a “parent who has been prohibited from direct contact with the child, in the child’s best interest[s], continues to have an obligation to maintain contact with the person having legal custody of the child” (Matter of Lucas B., 60 A.D.3d 1352, 1352, 876 N.Y.S.2d 255 [4th Dept. 2009)]). Petitioner had legal custody of the child, and there was  no evidence that the father made any effort to maintain contact with petitioner. 

March 16, 2023

Recent Legislation

Laws of 2023, Ch 23 §2 enacted on March 3, 2023 amended newly enacted Domestic Relations Law 240 subdivision 1 (a-3) of to add subdivision 5. Domestic Relations Law 240 subdivision 1 (a-3)  is now effective December 23, 2023 and now reads as follows:

  (a-3) Court ordered forensic evaluations involving child custody and

  visitation.  (1) The court may appoint a forensic evaluator on behalf of

  the court to evaluate  and  investigate  the  parties  and  a  child  or

  children in a proceeding involving child custody and visitation provided

  that  the  child  custody  forensic  evaluator is a psychologist, social

  worker or psychiatrist who is licensed in the state of New York and  has

  received  within  the  last two years, a certification of completion for

  completing the training program pursuant to paragraph (o) of subdivision

  three of section five hundred seventy-five of the executive law.

    (2)  Notwithstanding  any  provision  of  law  to  the  contrary,   no

  individual  shall  be  appointed  by  a  court  to  conduct  a  forensic

  evaluation in  a  proceeding  involving  child  custody  and  visitation

  pursuant  to  this  paragraph unless such individual has received within

  the last two years, a certification of  completion  for  completing  the

  training  program  pursuant  to  paragraph  (o)  of subdivision three of

  section five hundred seventy-five of the executive law.

    (3) A  psychologist,  social  worker  or  psychiatrist  authorized  to

  conduct  court  ordered  child  custody forensic evaluations pursuant to

  this section shall notify the court in which such individual requests to

  be considered for such  court  ordered  evaluations.  Any  psychologist,

  social  worker  or  psychiatrist who no longer meets the requirements of

  this section in regards to completing within  the  last  two  years  the

  training  program  pursuant  to  paragraph  (o)  of subdivision three of

  section  five  hundred  seventy-five  of  the  executive  law  shall  be

  obligated   to   inform   such   courts   within  seventy-two  hours  of

  noncompliance so as to be removed from consideration for  court  ordered

  evaluations.

    (4)  Upon  appointment,  the  court  shall  require such child custody

  forensic evaluator to show proof of certification for completing  within

  the  last  two  years  the training program pursuant to paragraph (o) of

  subdivision three of section five hundred seventy-five of the  executive

  law.

    (5)  A  court shall appoint a forensic evaluator who has completed the

  training program pursuant to  paragraph  (o)  of  subdivision  three  of

  section five hundred seventy-five of the executive law when the child is

  living  out-of-state  and is farther than one hundred miles from the New

  York  state  border;  provided,  however,  that  such  forensic  custody

  evaluation   may   be  conducted  remotely  utilizing  videoconferencing

  technology. The evaluator must take all steps  reasonably  available  to

  protect   the   confidentiality  of  the  child's  disclosures  for  any

  evaluation conducted remotely utilizing videoconferencing technology, as

  needed.

    

Executive law (3)(o)was amended accordingly to replace the reference to the New York State Coalition Against Domestic Violence with the “organization  designated    by the federal department of health and human services to coordinate statewide improvements within local communities, social services systems, and programming regarding the prevention and intervention of domestic  violence  in  New York  state.. Laws of 2023, Ch 23, §2. 

Laws of 2023 Chapter 68 enacted on  March 3, 2023 and effective March 28, 2023  amended Chapter 798 of the Laws of 2022, which provides for one-day marriage officiants. It  makes technical changes to the underlying chapter to effectuate the intent of the law to authorize town and city clerks to issue one day marriage officiant licenses pursuant to new Domestic Relations law § 11-d. 

Technical changes were made to Domestic Relations law § 11 Subdivisions 1, 2, 3-a and 3-b to include references to one-day marriage officiants in section 11 of the Domestic Relations law.

Domestic Relations law § 11 Subdivisions 1, 2, 3-a and 3-b were amended to read as follows:

   

  1.  A  clergyman or minister of any religion, or by the senior leader,

   or any of the other leaders, of The Society for Ethical Culture  in  the

   city  of New York, having its principal office in the borough of Manhat-

   tan, or by the leader of  The  Brooklyn  Society  for  Ethical  Culture,

   having  its  principal  office in the borough of Brooklyn of the city of

   New York, or of the Westchester Ethical Society,  having  its  principal

   office  in Westchester county, or of the Ethical Culture Society of Long

   Island, having its principal office in Nassau county, or of  the  River-

   dale-Yonkers  Ethical Society having its principal office in Bronx coun-

   ty, or by the leader of any other  Ethical  Culture  Society  affiliated

   with  the American Ethical Union; provided that no clergyman or minister

   as defined in section two of the religious corporations law, or  Society

   for  Ethical  Culture leader shall be required to solemnize any marriage

   when acting in his or her capacity under this subdivision.

     1-a. A refusal by a clergyman or minister as defined in section two of

   the religious corporations law, or Society for Ethical Culture leader to

   solemnize any marriage under this subdivision shall not create  a  civil

   claim  or  cause  of  action  or result in any state or local government

   action to penalize, withhold benefits or discriminate against such cler-

   gyman or minister.

     2. The current or a former governor, a mayor of a  village,  a  county

   executive  of  a  county,  or a mayor, recorder, city magistrate, police

   justice or police magistrate of a city, a former mayor or the city clerk

   of a city of the first class of over one million inhabitants or  any  of

   his  or her deputies or not more than four regular clerks, designated by

   him or her for such purpose as provided  in  section  eleven-a  of  this

   article, except that in cities which contain more than one hundred thou-

   sand  and  less than one million inhabitants, a marriage shall be solem-

   nized by the mayor, or police justice, and by no other officer  of  such

   city, except as provided in subdivisions one and three of this section.

     3-a.  A judge or peacemaker judge of any Indian tribal court, a chief,

   a headman, or any member of any tribal council or other  governing  body 

   of any nation, tribe or band of Indians in this state duly designated by

   such  body  for  the  purpose  of officiating at marriages, or any other

   persons duly designated by such body, in keeping with  the  culture  and

   traditions  of  any such nation, tribe or band of Indians in this state,

   to officiate at marriages.

     3-b. A one-day marriage officiant, as designated by a town or city clerk              pursuant to section eleven-d of this article;  or, 

 

Domestic Relations law § 12 was amended to clarify the designation of one-day marriage officiants by a town or city clerk rather than the secretary of state.

 

Domestic Relations law § 12 was amended to read as follows:

   

     § 12.  Marriage, how solemnized.  No particular form  or  ceremony  is

   required  when  a marriage is solemnized as herein provided by a clergy-

   man or magistrate, or one-day marriage  officiant  as  designated  by    

    a  town  or city clerk pursuant to section eleven-d of this article, but                    the parties must solemnly declare  in  the  presence  of  a

   clergyman,  magistrate,  or  such  one-day  marriage  officiant  and the

   attending witness or witnesses that they take each other as spouses.  In

   every  case,  at  least one witness beside the clergyman, magistrate, or

   such one-day marriage officiant must be present at the ceremony.

     The preceding provisions of this chapter, so far as they relate to the

   manner of solemnizing marriages, shall not affect  marriages  among  the

   people  called friends or quakers; nor marriages among the people of any

   other denominations having as such any particular  mode  of  solemnizing

   marriages;  but  such marriages must be solemnized in the manner hereto-

   fore used and practiced in their respective societies or  denominations,

   and marriages so solemnized shall be as valid as if this article had not

   been enacted. 

Domestic Relations law § 13 was amended to make conforming changes referencing the designation of town or city clerks to issue one-day marriage officiant licenses.

 

Domestic Relations law § 13 was amended to read as follows:

     §  13.  Marriage  licenses.  It  shall  be  necessary  for all persons

   intended to be married in New York state to obtain  a  marriage  license

   from a town or city clerk in New York state and to deliver said license,

   within  sixty  days,  to  the clergyman, magistrate, or one-day marriage

   officiant as designated by   a town or city clerk pursuant to section      eleven-d of this article who is to officiate before the marriage

   ceremony may be performed. In case of a marriage contracted pursuant  to

   subdivision  four  of section eleven of this chapter, such license shall

   be delivered to the judge  of  the  court  of  record  before  whom  the

   acknowledgment  is  to be taken. If either party to the marriage resides

   upon an island located not less than twenty-five miles from  the  office

   or  residence  of  the  town clerk of the town of which such island is a

   part, and if such office or residence is not on such island such license

   may be obtained from any justice of the peace residing on  such  island,

   and  such  justice, in respect to powers and duties relating to marriage

   licenses, shall be subject to the provisions of this  article  governing

   town  clerks and shall file all statements or affidavits received by him

   while acting under the provisions of this section with the town clerk of

   such town. No application for a marriage license shall be denied on  the

   ground that the parties are of the same, or a different, sex. 

Domestic Relations Law § 13-b was amended to make conforming changes regarding designating one-day marriage officiants.

Domestic Relations Law § 13-b was amended to read as follows:

     § 13-b. Time within which marriage may be solemnized. A marriage shall

   not be solemnized within twenty-four hours after  the  issuance  of  the

   marriage  license, unless authorized by an order of a court of record as

   hereinafter provided, nor shall it be solemnized after sixty  days  from

   the  date  of  the  issuance  of  the marriage license unless authorized

   pursuant to section three hundred fifty-four-d  of  the  executive  law.

   Every  license  to  marry  hereafter  issued by a town or city clerk, in

   addition to other requirements specified by this chapter, must contain a

   statement of the day and the hour the license is issued and  the  period

   during which the marriage may be solemnized. It shall be the duty of the

   clergyman,  magistrate,  or one-day marriage officiant, as designated by    

   a town or city clerk pursuant to section eleven-d of this

   article,  performing the marriage ceremony, or if the marriage is solem-

   nized by written contract, of the judge  before  whom  the  contract  is

   acknowledged,  to annex to or endorse upon the marriage license the date

   and hour the marriage is solemnized. A judge or justice of  the  supreme

   court  of  this  state or the county judge of the county in which either

   party to be married resides, or the judge of the family  court  of  such

   county,  if  it  shall appear from an examination of the license and any

   other proofs submitted by the parties that one  of  the  parties  is  in

   danger  of imminent death, or by reason of other emergency public inter-

   est will be promoted thereby, or that such delay will  work  irreparable

   injury  or  great hardship upon the contracting parties, or one of them,

   may, make an  order  authorizing  the  immediate  solemnization  of  the

   marriage  and  upon filing such order with the clergyman, magistrate, or

   one-day marriage officiant performing the marriage ceremony, or  if  the

   marriage  is to be solemnized by written contract, with the judge before

   whom the contract is acknowledged, such clergyman,  magistrate  or  such

   one-day  marriage  officiant  may solemnize such marriage, or such judge

   may take such acknowledgment as the case may  be,  without  waiting  for

   such three day period and twenty-four hour period to elapse. The clergy-

   man,  magistrate,  judge, or such  one-day marriage officiant, as desig-

   nated by   a town or city clerk pursuant to section eleven-d of this          article,  must  file  such  order  with the town or city clerk who

   issued the license within five days after the  marriage  is  solemnized.

   Such  town  or  city  clerk  must record and index the order in the book

   required to be kept by him or her for recording affidavits,  statements,

   consents  and  licenses,  and  when so recorded the order shall become a

   public record and available in any prosecution  under  this  section.  A

   person who shall solemnize a marriage in violation of this section shall

   be guilty of a misdemeanor and upon conviction thereof shall be punished

   by  a  fine  of fifty dollars for each offense, and in addition thereto,

   his or her right to solemnize a marriage shall be suspended  for  ninety

   days. 

Section 110 of the executive law regarding one-day marriage officiants was repealed. 

 

Domestic Relations law § 11-d was added to  authorize town or city clerks to issue one-day marriage officiant licenses and lays out the requirements for a one-day marriage officiant license.

Domestic Relations law § 11-d was added to read as follows:

     § 11-d. One-day marriage officiant license. 1. A town  or  city  clerk

   shall  issue  a  one-day  marriage  officiant license upon request. Such

   one-day marriage officiant shall  have  the  authority  to  solemnize  a

   marriage  which  marriage shall be valid if performed in accordance with

   other provisions of law. Nothing  herein  contained  shall  nullify  the

   authority of other persons authorized to solemnize marriages.

     2.  Such  one-day marriage officiant shall be eighteen years of age or

   over and need not be a resident of the town or city to which they  apply

   or  a resident of the state. A one-day marriage officiant shall have the

   authority to solemnize a marriage anywhere in the state.

     3. An applicant for a one-day marriage officiant  license  must  apply

   for  such  license in the same town or city clerk's office as the couple

   to be married.   Such applicant shall  not  be  required  to  personally

   appear.

     4.  A  town  or  city  clerk shall be entitled to a fee of twenty-five

   dollars for issuing a one-day marriage officiant license.  Such  license

   shall  be  issued  only  after  payment  of such fee and submission of a

   completed application form.

     5. The application form shall require the following information of the

   applicant:  name, date of birth, address, email  address  and  telephone

   number.  The  application form shall also require the following informa-

   tion of the parties to be married: names, dates of birth, and  addresses

   as they appear on the application for a marriage license.

     6.  Such  license shall only be valid for the parties to be married as

   stated on the application and shall expire upon the  earlier  of  either

   completion  of  such  solemnization  or  the  expiration of the marriage

   license.

     7. One-day marriage officiants shall be exempt  from  registration  as

   required pursuant to section eleven-b of this article. 

 

Appellate Division, Second Department

Parties’ agreement in their stipulation did not provide an appropriate rationale for the court’s calculation of child support on parental income over the statutory cap.

In Monaco v Monaco, --- N.Y.S.3d ----, 2023 WL 2290584, 2023 N.Y. Slip Op. 01091 (2d Dept.,2023) the parties were married in 1996 and had three children. In February 2013, they executed a stipulation of settlement, which was incorporated but not merged into their judgment of divorce entered June 24, 2013. Pursuant to the parties’ stipulation, the father’s child support obligation was $1,618.02 every two weeks. In determining the father’s child support obligation, the parties agreed to apply the statutory percentage under the Child Support Standards Act ( CSSA) to their total combined parental income of $185,980. In September 2020, the father filed a petition seeking a downward modification of his child support obligation. Subsequently, the mother filed a petition for an upward modification. After a hearing, in an order dated December 3, 2021, a Support Magistrate, in effect, granted the father’s petition. The Support Magistrate found that the parties’ combined parental income under the CSSA was $251,708.46, which exceeded the statutory cap of $154,000. The Support Magistrate determined that it was appropriate to apply the statutory percentages to the combined parental income up to the statutory cap. The Family Court determined that the Support Magistrate should have used the entire combined parental income, including the amount exceeding the statutory cap, in calculating the father’s child support obligation. The Appellate Division held that Family Court should have denied the mother’s objection to the Support Magistrate’s determination to calculate child support based on the combined parental income up to the statutory cap. It observed that where, as here, the combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the cap, 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 based its decision to calculate child support on combined parental income in excess of the statutory cap on the parties’ agreement in their stipulation of settlement to apply the statutory percentage to their total combined parental income. The court found that the parties intended for their children to enjoy the standard of living that the children would have enjoyed had the family remained intact. However, the parties’ agreement in their stipulation did not provide an appropriate rationale for the court’s calculation of child support on parental income over the statutory cap. The record supported the Support Magistrate’s determination that it was appropriate to apply the statutory percentages to the statutory cap of $154,000, with no further support obligation based on the combined parental income over that amount. When determining an appropriate amount of child support, a court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle” (Hepheastou v. Spaliaras, 201 A.D.3d at 795, 162 N.Y.S.3d 75; see Kaufman v. Kaufman, 189 A.D.3d at 72, 133 N.Y.S.3d 54). The parties’ testimony at the hearing established that the two older children were no longer attending school, and that the oldest child was employed. The mother reported in her financial disclosure affidavit that she had no tuition or child care expenses, and there was no indication that the children are engaged in extracurricular activities. Moreover, although the father’s gross income was higher than the mother’s gross income, the record did not establish that the difference between the parties’ gross incomes warranted  applying the statutory percentages to the parties’ combined income in excess of the statutory cap. 

        

Appellate Division, Third Department

Family Court may not, upon request by an AFC, prohibit a child protective agency from discussing the issues of surrender and adoption with a child in its custody

In  Matter of Michael H., --- N.Y.S.3d ----, 2023 WL 2315550, 2023 N.Y. Slip Op. 01119 (3d Dept.,2023), a termination of parental rights  case  the question presented on appeal was whether Family Court may, upon request by an AFC, prohibit a child protective agency from discussing the issues of surrender and adoption with a child in its custody. The Appellate Division observed that a ”child protective agencies have “a duty to conduct family assessments and to develop a plan of services made in consultation with the family and each child over 10 years old, whenever possible. A child protective agency must “provide casework contact services” to, among others, children under its care (18 NYCRR 441.21[a]). Under the statutory and regulatory scheme, child protective agencies and their caseworkers have an obligation to discuss matters of permanency, which include adoption, with the child. Here, during the judicial surrender appearance, the AFC requested that Family Court issue an order that, “until I’ve spoken to [the child], no one is to speak to [the child] about surrender and adoption.” The Appellate Division observed that although circumstances may arise where it may be appropriate to allow an attorney for children reasonable time to discuss sensitive matters of importance, such as adoption or surrender, with their child-client before anyone else does, Family Court’s order was not a temporal arrangement to allow the AFC an opportunity to broach the issue with the child. Instead, the order was an outright ban on anyone, including petitioner’s caseworkers, having a discussion with the child regarding issues that are central to the child’s permanency (see Family Ct Act § 1089[c][1][ii]). Although the child has a right to meaningful representation and to learn about legal issues from the AFC, attorneys for children cannot transform such responsibility into a roadblock, as occurred here, preventing petitioner from fulfilling its mandates and planning for the child’s permanency and well-being (see 18 NYCRR 428.6; 441.21). Therefore, it found that Family Court erred when, through the order on appeal interfered with petitioner’s statutory obligations and responsibilities. The order was reversed on the law and vacated.

March 1, 2023 

Child Support Standards Chart Revised March 1, 2023 and Revised Forms

Child Support Standards Chart Revised March 1, 2023

Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2023. The revised forms reflect the increases as of March 1, 2023 in the Self Support Reserve from $18,346.50 to $19,683 and in the federal Poverty Level Income for a single person from $13,590 to $14,580.

Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2023 reflecting these changes are posted.

Uncontested Divorce Forms revised March 1, 2023  reflecting these changes are also posted.

Appellate Division, First Department

Family Court erred when it denied the mother’s motion without a hearing, asking Family Court to convert its temporary emergency jurisdiction to permanent jurisdiction under the (UCCJEA) 

In Matter of Nathaniel H.,   --- N.Y.S.3d ----, 2023 WL 2025651, 2023 N.Y. Slip Op. 00927 (1st Dept.,2023) the petition alleged that the father neglected the child by committing acts of domestic violence against the mother, including in the child’s presence, when they resided together in Texas, and that the mother had fled Texas with the child and moved to Virginia in September 2020, and then to New York in January 2021. Based on these allegations, Family Court properly exercised temporary emergency jurisdiction on May 3, 2021, when it issued a limited temporary order of protection in favor of the mother and child against the father, and ordered that the child be released to the mother with ACS supervision (Domestic Relations Law § 76–c[1]). The Appellate Division held that  Family Court erred when, by order dated September 15, 2021, without first holding a hearing, it denied the mother’s motion asking Family Court to convert its temporary emergency jurisdiction to permanent jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or to continue its temporary emergency jurisdiction, and relinquished temporary emergency jurisdiction based on the existence of a custody proceeding filed by the father in Texas. Family Court improperly relinquished emergency jurisdiction for three reasons. First, there is no evidence in this record, and Family Court’s order fails to state any basis for finding, that the Texas court had “home state” jurisdiction, since the child had not resided there for six months immediately preceding commencement of the father’s Texas custody proceeding (Domestic Relations Law §§ 75–a[7]; 76[1][a]). Second, the record and Family Court’s order are also devoid of any factual basis for finding that any of the alternative jurisdictional bases applied to Texas. There is no evidence that the child at that time had a “significant connection” with Texas or that “substantial evidence  . . .  concerning the child’s care, protection, training and personal relationships” was available in Texas (Domestic Relations Law § 76[1][b]). Finally, given the allegations in the neglect petition and the fact that Family Court had been informed on or about June 3, 2021 that the Texas Department of Family and Protective Services would not investigate whether the father was a danger to the child because the mother and child resided in New York, Family Court should not have relinquished emergency jurisdiction “in the absence of any orders from the Texas court safeguarding the child. It held that Family Court should not have denied the mother’s motion without first holding a hearing.

  

Appellate Division, Second Department

An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case.

In Kassenoff v Kassenoff, --- N.Y.S.3d ----, 2023 WL 2000546, 2023 N.Y. Slip Op. 00850(2d Dept.,2023) the parties to this action for a divorce, who were  the parents of three children, appeared for a conference to discuss, among other things, certain communications between the defendant and the plaintiff’s employer. On March 9, 2020, the plaintiff’s attorney submitted a proposed order to the Supreme Court which included provisions prohibiting the defendant from communicating with any employee of the plaintiff’s employer “regarding the Plaintiff, ... the facts and circumstances of this divorce (in the broadest meaning of the terms), the facts and circumstances of the parties’ marriage prior to the filing of this divorce, or the parties’ children,” and further prohibiting both parties from “criticizing, denigrating or disparaging the other on any form of social media.” On May 25, 2021, the court signed the order. The defendant  moved to vacate the order and Supreme Court denied the defendant’s motion. The defendant contended on appeal that the order dated May 25, 2021, was an unconstitutional prior restraint and content-based restriction on her First Amendment right to free speech. The Appellate Division modified the order. It held that a prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression. A party seeking to impose such a restraint bears a heavy burden of demonstrating justification for its imposition. Such a party must demonstrate that the speech sought to be restrained is  likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case. It agreed with the defendant that the restrictions placed upon her communications with employees of the plaintiff’s employer were not tailored as precisely as possible to the exact needs of this case. Specifically, the restriction prohibiting the defendant from discussing the children with any employee of the plaintiff’s employer was not necessary to prevent professional reputational harm to the plaintiff or financial or emotional harm to the children. It vacated the restriction on the defendant’s ability to discuss the children with any employee of the plaintiff’s employer.

 

Attorney-client privilege shields confidential communications between an attorney and client made for the purpose of obtaining or facilitating legal advice

 

In Kassenoff v Kassenoff, --- N.Y.S.3d ----, 2023 WL 2000604, 2023 N.Y. Slip Op. 00849 (2d Dept.,2023) in May 2019, the plaintiff commenced an action for a divorce. In June 2019, the plaintiff moved, inter alia, for temporary sole legal and physical custody of the parties’ three children, relying on certain text messages between the defendant and nonparty Cynthia Monaco, a friend of the defendant and an attorney. The defendant then moved, among other things, to compel the plaintiff to return or destroy those electronic communications between her and Monaco, on the basis of the attorney-client privilege. Supreme Court, inter alia, denied the defendant’s motion. The Appellate Division affirmed. It observed that Article 45 of the CPLR contains, inter alia, the evidentiary privileges based on confidential communications between, among others, attorney and client (see CPLR 4503). The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship. The critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client. The party asserting the privilege has the burden of demonstrating that it is applicable. Here, the Supreme Court properly determined that the defendant failed to establish that an attorney-client relationship existed between her and Monaco, and that the subject electronic communications were therefore privileged based on such a relationship. 

        

Appellate Division, Third Department

The parties’ ability to enter into an enforceable settlement agreement is specifically conditioned upon the provisions of GOL § 5–311 which prohibits spouses from contracting to “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge.” 

In Majid v Hasson, 2023 WL 2168397 (3d Dept.,2023) Plaintiff (husband) and defendant ( wife) were married in Iraq in 1988 and had one unemancipated child (born in 2010). The husband commenced an action for divorce in April 2019. The wife applied for poor person status and appointment of counsel, which Supreme Court granted. The parties executed a settlement agreement. According to the wife, she immediately rescinded her assent and demanded the return of the agreement. When it was not returned to her, she sought, and was appointed, new counsel. The wife moved to set aside the settlement agreement asserting that her lack of English proficiency and the general economic unfairness of the terms rendered the agreement unjust and unconscionable. Supreme Court denied the wife’s motion and entered a judgment of divorce incorporating, but not merging, the settlement agreement. The Appellate Division observed, inter alia, that the parties’ ability to enter into an enforceable settlement agreement is specifically conditioned upon the provisions of General Obligations Law § 5–311 which prohibits spouses from contracting to dissolve a marriage and “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge.” The fact that a wife waives spousal support, even in a long-term marriage, does not, in and of itself, render an agreement unconscionable, especially an agreement containing affirmations that the parties have been made aware of the current spousal support guidelines and wherein they both represent that they are capable of self-support. Article four of the settlement agreement, concerning spousal support, set forth the wife’s income as $11,446, which was well below the applicable federal 2020 poverty guidelines. As such, there was a question as to whether this provision was in violation of General Obligations Law § 5–311 in that the wife “is likely to become a public charge.” Because of this, it found that Supreme Court erred when it failed to make an inquiry into the circumstances surrounding the wife’s waiver of spousal support. The matter was remitted for a hearing at which Supreme Court must necessarily also inquire into child support as the Child Support Standards Act requires that “maintenance shall be calculated prior to child support because the amount of maintenance shall be subtracted from the [husband]’s income and added to the [wife]’s income as part of the calculation of the child support obligation. It observed that because the settlement agreement contained a severability clause it saw no reason to set aside the judgment of divorce.

Federal stimulus payments are  subject to equitable distribution and, therefore, Family Court does not have jurisdiction to direct a father to remit them to the mother.

In Matter of Josefina O. v. Francisco P,  2023 WL 2168447 (3d Dept.,2023)

Petitioner ( mother) and respondent (father) were separated parents of five children. By an order of support on consent entered in August 2019, the father agreed to pay the mother a weekly sum of child support and spousal support. In December 2020, the mother filed a family offense petition against the father. A month later, in January 2021, the mother commenced a divorce action and, in the context of this proceeding, the mother moved, for temporary child support and for the recoupment of federal stimulus payments received by the father for the benefit of the children. Family Court granted the mother’s motion under the guise of its authority “to issue a temporary order for child support ... within a family offense proceeding” pursuant to Family Ct Act § 828(4), and ordered that the father pay the mother a lump sum of money representing the children’s share of the federal stimulus funds that he received. The Appellate Division agreed with the father that the federal stimulus payments were subject to equitable distribution and, therefore, Family Court did not have jurisdiction to direct him to remit them to the mother. The Coronavirus Aid, Relief, and Economic Security Act provided eligible individuals an “advance refund amount” of the applicable tax credit of $500 for each qualifying child. Thereafter, eligible individuals were entitled to an additional “advance refund” of the applicable tax credit of $600 for each qualifying child under the Tax Relief Act of 2020. These federal stimulus payments were not paid “for the benefit of the minor children,” but they were the parties’ advance refund for a tax credit earned pursuant to their last tax return, which was jointly filed, and which was partially measured by the number of children the tax filers had listed as dependents. Generally, a tax refund is marital property and subject to equitable distribution by Supreme Court. Although, within the context of a family offense petition, Family Court may issue an order for temporary child support, and there could be appropriate circumstances where a party’s tax refund may be seized to satisfy child support obligations those circumstances were not present here. Moreover, Family Court’s order lacked the necessary requirements of an order for temporary support, and did not comply with the relevant statute’s requirement to advise the mother regarding services of the support collection unit (see Family Ct Act § 828[4]) – which had already been collecting the father’s regular payments. Nor did the order satisfy the purpose of temporary child support, particularly when further considering the legislative intent behind Family Ct Act § 828(4), which was enacted as part of the Family Protection and Domestic Violence Intervention Act of 1994 (see Senate Introducer’s Mem in Support, Bill Jacket, L 1994, ch 222 at 16, 24). Accordingly, it was an error to order the father to remit these advance tax refunds to the mother under the guise of a temporary order of child support

Resettlement is an appropriate, and preferred, remedy when a party alleges that an order does not accurately incorporate the terms of a stipulation

 

In Matter of Patrick UU v Francesca VV, --- N.Y.S.3d ----, 2023 WL 2168419, 2023 N.Y. Slip Op. 01040 (3d Dept., 2023) the Appellate Division held that there is no specific time limit in which to move to resettle. Resettlement, which “rest[s] on the inherent power of courts to cure mistakes, defects and irregularities that do not affect substantial rights of the parties”, is an appropriate, and preferred, remedy when a party alleges that an order does not accurately incorporate the terms of a stipulation.

February 16, 2023 

Appellate Division, First Department

Expenses for a child’s  residential program in a therapeutic boarding school properly treated as medical or therapeutic, rather than educational, where the program did not offer classes or course credit

In Matter of Ning-Yen Y v Karen K, --- N.Y.S.3d ----, 211 A.D.3d 622, 2022 WL 17835664, 2022 N.Y. Slip Op. 07310 (1st Dept.,2023), the parties’ parenting agreement provided that the children’s educational costs were to be allocated 70% to the father and 30% to the mother, while unreimbursed, nonelective medical, therapeutic, and psychiatric expenses were to be allocated 92% to the father and 8% to the mother. The Appellate Division held that it was an improvident exercise of discretion for the Family Court to deny the mother’s objection to the Support Magistrate’s characterization of the residential treatment program in Idaho as an educational expense rather than a therapeutic expense. The evidence presented at the hearing demonstrated that the subject program did not offer classes or course credit, and the father does not dispute that the child took online courses and classes at a local high school from which he received his high school diploma. Moreover, the father’s email to the mother and testimony made clear that the overriding purpose of enrolling the child in the therapeutic boarding school ... was to provide the child with intensive psychiatric and substance abuse treatment in a residential setting. Accordingly, the expenses for the residential program were properly treated as medical or therapeutic rather than educational, and the amount allocated to the mother for the expenses of this program must be recalculated at 8% rather than 30%.

  

The child does not have full-party status and cannot veto a settlement reached by the parents and force a trial after the attorney for the child had a full a fair opportunity to be heard.

  In Matter of Kylie P.--- N.Y.S.3d ----, 2023 WL 1826825 (Mem), 2023 N.Y. Slip Op. 00735 (1st Dept.,2023) after the court determined that there had been a change in circumstances warranting modification of the prior custody order, the parents entered into a settlement agreement, which the court incorporated into a modified custody order over the objection by the attorney for the older child. The Appellate Division held that although the attorney for the child in a custody proceeding has authority to pursue an appeal on behalf of the child, the child does not have full-party status and cannot veto a settlement reached by the parents and force a trial after the attorney for the child had a full a fair opportunity to be heard.

Appellate Division, Second Department

Bonds, purchased during the marriage with separate property and placed in both parties’ names, were not the defendant’s separate property

        In Glessing v Glessing,--- N.Y.S.3d ----, 2023 WL 380072, 2023 N.Y. Slip Op. 00306 (2d Dept.,2023) the parties were married in 1992. In 2017, the plaintiff commenced this action for a divorce. A judgment of divorce was entered in 2019. Supreme Court denied the defendant a separate property credit of $220,000 for the purchase of the marital residence; (2) directed the defendant to remit half of the cash in a home safe to the plaintiff; (3) directed the defendant to remit $23,692.64 from a Chase bank account to the plaintiff; (4) directed the distribution of the net proceeds of certain bonds to be divided equally between the parties; (5) directed the defendant to pay the plaintiff half of the parties’ marital credit card debt; and (6) awarded the plaintiff counsel fees.

The Appellate Division affirmed. It rejected the defendant’s contention that the “I” bonds, purchased in both parties’ names, were his separate property because he purchased them with proceeds from his disability pension. Pension benefits, except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property because they are “in essence, a form of deferred compensation derived from employment” during the marriage. However, any compensation a spouse receives for personal injuries is not considered marital property and is not subject to equitable distribution. Thus, to the extent a disability pension represents deferred compensation, it is subject to equitable distribution while to the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution. However, separate property that is commingled with marital property may lose its separate character. Here, although the Supreme Court determined that the plaintiff was not entitled to share in any portion of the defendant’s pension that was attributable to the defendant’s disability pension, it found that the “I” bonds, purchased during the marriage and placed in both parties’ names, were not the defendant’s separate property. Thus, the court providently exercised its discretion in ordering the net proceeds of the bonds to be divided equally between the parties.

Letter of intent between spouses was unenforceable because it did not comply with the DRL§ 236(B)(3) requirement that signatures must be acknowledged or proven in the manner required to record a deed.

 

          In Chin-Cheung v Cheung, --- N.Y.S.3d ----, 2023 WL 379756, 2023 N.Y. Slip Op. 00301 (2d Dept.,2023) the parties were married in 1964. During the marriage, the parties signed an agreement entitled “Letther [sic] of Intent Between [the defendant] and [the plaintiff] Property Ownership Agreement” in which the parties agreed not to share assets with each other in the event of a divorce if the defendant transferred all shares of a certain corporation to their adult son. In 2018, the plaintiff commenced this action for a divorce. The plaintiff moved, inter alia, for a determination that the letter of intent is an invalid and unenforceable postnuptial agreement. Supreme Court, inter alia, granted the plaintiff’s motion. The Appellate Division affirmed. The letter of intent was an agreement between spouses subject to Domestic Relations Law § 236(B)(3). A written agreement between spouses made before or during a marriage concerning the ownership, division, or distribution of property which does not meet the formalities of Domestic Relations Law § 236(B)(3) is not enforceable. The letter of intent was unenforceable because it did not comply with the Domestic Relations Law § 236(B)(3) requirement that signatures must be acknowledged or proven in the manner required to record a deed (see Galetta v. Galetta, 21 N.Y.3d at 192, 969 N.Y.S.2d 826, 991 N.E.2d 684; Matisoff v. Dobi, 90 N.Y.2d at 135, 659 N.Y.S.2d 209, 681 N.E.2d 376).

A suspension of child support payments is warranted  where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights

In Morgan v Morgan, --- N.Y.S.3d ----, 2023 WL 1425597, 2023 N.Y. Slip Op. 00424 (2d Dept.,2023) the mother was awarded sole custody of the children, and the father was directed to pay child support to the mother. In July 2019, the father moved to suspend his child support obligation, alleging, inter alia, parental alienation on the part of the mother. Family Court suspended his child support obligation on the ground of parental alienation. The Appellate Division affirmed. It held that child support payments may be suspended ‘where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent. A suspension of child support payments is warranted only where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights. The evidence adduced at the hearing demonstrated that the children held distorted and illogical views regarding the father and his efforts to develop a relationship with them. There was evidence that the older child, for example, viewed the father’s efforts to develop a relationship with the children as threatening, had homicidal thoughts with regard to the father, and refused to believe that the father had traveled to visit with her even when presented with photographs and the father’s passport demonstrating that he had. There was also evidence that the mother failed to make efforts to assist the children in developing a relationship with the father, and instead encouraged the children’s negative view of the father in an apparent effort to weaponize the children against him. The mother refused to produce the children for parental access on numerous occasions, particularly after sessions of supervised parental access that were seen as successful in moving the children towards reunification with the father, and she discussed the father’s child support payments with one of the children. The mother had also refused to produce the children for an evaluation with the court-ordered forensic evaluator after having initially done so because, according to the mother, one of the children had been traumatized by an earlier session. The evaluator testified that the mother engaged in an intentional “pattern of alienation” in which she would withhold the children from parental access with the father following appropriate and positive interactions between them, claiming that the children had been traumatized by the visit.

There is no per se rule that a finding of abuse or neglect of one sibling requires a finding of derivative abuse or neglect with respect to the other siblings

In Mattter of Destiny R, --- N.Y.S.3d ----, 2023 WL 152067, 2023 N.Y. Slip Op. 00093 (2d Dept.,2023) the Appellate Divison observed that proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent” (Family Ct Act § 1046[a][i]). There is no per se rule that a finding of abuse or neglect of one sibling requires a finding of derivative abuse or neglect with respect to the other siblings. The focus of the inquiry with respect to derivative findings is whether the evidence of abuse or neglect of another child or children demonstrates such an impaired level of parental judgment so as to create a substantial risk of harm for the other child or children in the parent’s care.

 

Mother’s 911 call fell within the excited utterance exception to the rule against hearsay where she made the call immediately after a startling and disturbing event, while still concerned for the safety of her children, and her demeanor indicated that the statements represented “impulsive and unreflecting responses” to the startling event.

 

In Matter of Omar G, --- N.Y.S.3d ----, 2023 WL 152056, 2023 N.Y. Slip Op. 00085 (2d Dept.,2023) the appellant, an adolescent offender was charged with criminal possession of a weapon in the second degree, among other offenses. At a fact-finding hearing in the Family Court, a recording of the call placed by the mother to the 911 emergency number during the incident was admitted into evidence under the excited utterance exception to the hearsay rule. During this call, the mother told the 911 operator, in an anxious tone and without being prompted, that “I need police.... My son’s got a gun and he’s waving it.... I have kids in the house.” She indicated that she needed to return to the apartment, which she had left in order to make the call. The Family Court also admitted into evidence, under the excited utterance exception, a video recording of a statement made by the mother during questioning by police officers in the apartment after the appellant had been arrested and taken to a police station, and permitted a police officer to testify as to the contents of the mother’s statement. While being interviewed by police officers, the mother recounted to the police officers that the appellant, while displaying a gun, said to her “I will boom you,” and also said that he would “boom” the mother’s boyfriend. Family Court, inter alia, found that the appellant committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the second degree, criminal possession of a firearm, endangering the welfare of a child, and obstructing governmental administration in the second degree, and adjudicated him a juvenile delinquent. The Appellate Division held that the recording of the mother’s 911 call fell within the excited utterance exception to the rule against hearsay. The mother made the call immediately after a startling and disturbing event, while she was still concerned for the safety of the two children in the apartment, and her demeanor indicated that the statements represented “impulsive and unreflecting responses” to the startling event. It erred however, in admitting as excited utterances the statements subsequently made by the mother while being interviewed by police officers in her apartment. Those statements, made after the appellant had been handcuffed and removed from the scene, were not spontaneous, but were made in narrative form and in response to prompting, after sufficient time had passed to render the mother capable of engaging in reasoned reflection. Although the mother raised her voice and became agitated as she recalled the incident, she was no longer acting under the stress of the incident itself, and her tone “did not evidence an inability to reflect upon the events” (People v. Cantave, 21 N.Y.3d 374, 382, 971 N.Y.S.2d 237, 993 N.E.2d 1257). The error in admitting those statements was not harmless with respect to the charge of criminal possession of a weapon in the second degree, and appellant was entitled to a new fact-finding hearing on the count of the petition charging criminal possession of a weapon in the second degree.

When a party has defaulted, the court must order child support based upon the needs or standard of living of the child, whichever is greater

In Rosenbaum v Festinger, --- N.Y.S.3d ----, 2023 WL 1808123, 2023 N.Y. Slip Op. 00684 (2d Dept.,2023) the parties were married in December 2001 and had two children, born in 2003 and 2004, respectively. In January 2013, the plaintiff commenced this action for a divorce. In September 2014, the plaintiff moved, inter alia, to direct the defendant to comply with certain discovery requests and, if the defendant failed to comply, to preclude him from offering evidence at trial relating to financial matters. In an order dated December 23, 2014, after a hearing, the Supreme Court granted the plaintiff’s motion. It stated, inter alia, that, in the event that the defendant failed to comply with the order, the court would determine child support based on the children’s needs as established at trial rather than upon consideration of the formula and factors set forth in the Child Support Standards Act. Subsequently, the defendant failed to comply with the conditional order of preclusion and, consequently, was precluded from presenting evidence at trial regarding his financial circumstances. In a judgment of divorce the Supreme Court, inter alia, directed the defendant to pay child support to the plaintiff of $5,597 per month. The Appellate Division affirmed. It held that when a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs or standard of living of the child, whichever is greater” (Domestic Relations Law § 240[1–b][k]). Here, as authorized, the Supreme Court calculated the defendant’s monthly child support obligation on the basis of the children’s needs and did not impute income to the defendant. Thus, the requirement that the court specifically state the amount of income imputed and the resultant calculations did not apply.

Under the UCCJEA, a court of New York shall treat a foreign country as if it were a state of the United States” and may treat a foreign nation as a home state

In Cavez v Maldonado, --- N.Y.S.3d ----, 2023 WL 1808086, 2023 N.Y. Slip Op. 00659 (2 Dept.,2023) the parties have one son, born in March 2009, who had resided in Guatemala with the mother since birth. The father lives in New York. On June 20, 2021, the mother and the child came to the United States on tourist visas. On July 6, 2021, the child came to New York to visit the father. In October 2021, when the father allegedly refused to return the child to the mother, the mother filed two petitions for writs of habeas corpus which were later “marked satisfied.” On October 13, 2021, the father moved, by order to show cause, requesting the Family Court to exercise temporary emergency jurisdiction over the child pursuant to Domestic Relations Law § 76–c; he also filed a petition for custody of the child. On October 25, 2021, the mother cross-petitioned for custody. Subsequently, the court confirmed the referee’s finding that New York is not the child’s home state and that there was no basis for the court to exercise temporary emergency jurisdiction. In an order dated December 8, 2021, the court, inter alia, in effect, dismissed the father’s petition on the ground that it lacked jurisdiction and directed that the child be released to the physical custody of the mother for the purpose of returning to Guatemala, the child’s home state. The Appellate Division affirmed. It observed that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75–a[7]) Under the UCCJEA, a court of New York “shall treat a foreign country as if it were a state of the United States” (Domestic Relations Law § 75–d[1]) and thus, may treat a foreign nation as a home state.  When the parties commenced their custody proceedings in October 2021, Guatemala was the child’s home state for the purposes of the statute, and New York had never been the home state of the child. The Family Court therefore lacked jurisdiction to make an initial custody determination (see Domestic Relations Law § 76[1][a]).

 

 Since the father testified that he was paying the mortgage and utility bills for the house in which the mother and the child were residing, the Support Magistrate erred in failing to ascertain and deduct from his child support obligation the shelter costs incurred by the father in providing housing for the mother and the child

In Glaudin v Glaudin, --- N.Y.S.3d ----, 2023 WL 1808087, 2023 N.Y. Slip Op. 00662 (2d Dept.,2023) the parties had one child together, who was born in November 2018 while the parties were in the process of obtaining a divorce. The father moved out of the marital residence, which was owned by him as separate property, and the mother and the child continued to live there. In January 2020, the mother filed a petition against the father for child support. After conducting a hearing, the Support Magistrate determined that the father’s assertion that he was unable to procure employment lacked credibility and imputed certain income to him based on his reported monthly expenses. In an order dated January 13, 2021, the Support Magistrate, inter alia, directed the father to pay basic child support of $211 per week. The father filed objections to the Support Magistrate’s order, asserting that he had lost his last job due to absences resulting from being required to attend Family Court proceedings, and that the mother was residing in his home without paying rent or utility bills. In an order dated February 19, 2021, the Family Court denied the father’s objections. The Appellate Division held that the Support Magistrate providently exercised her discretion in imputing income to the father based on his work experience and earning capacity, and her assessment of his credibility. However, since the father testified without contradiction that he was responsible for paying the mortgage and utility bills for the house in which the mother and the child were residing, the Support Magistrate erred in “failing to ascertain and deduct from his child support obligation the shelter costs incurred by the [father] in providing housing for [the mother and the child]” As a result of the failure to award him a credit for the carrying charges he has incurred during the mother’s exclusive occupancy of the marital residence, the father “was making double shelter payments”. The father’s objection to the failure to award him such a credit should have been granted. It remitted the matter to the Family Court for a recalculation of the father’s child support obligation and child support arrears, with the father receiving a credit for any carrying charges incurred by him in providing housing to the mother and the child.

Appellate Division, Third Department

Visitation denied where exposing the children further to the mother, who continued to deny that sexual  abuse took place, would retraumatize them and be harmful to their welfare

In Matter of William Z v Kimberly Z, --- N.Y.S.3d ----, 2023 WL 402039, 2023 N.Y. Slip Op. 00352 (3d Dept.,2023) Family Court granted sole custody to the father and denied the mother visitation. The Appellate Division affirmed. It found that the testimony of the children’s three mental health counselors provided ample basis for the court’s conclusion that sexual abuse by the grandfather took place and that the mother was aware of it but took no action to investigate the allegations or protect her children from their abuser. It found that exposing the children further to the mother, who continued to deny that the abuse took place, would retraumatize them and be harmful to their welfare. The record made clear that the mother failed to address or even acknowledge her involvement in the  abuse via her own existing counseling. A sound and substantial basis in the record supported Family Court’s determination to deny the mother visitation with the children. 

Where the court does not identify the family offense(s) proven by the petitioner, the Appellate Division may independently review the record and determine whether the evidence supports Family Court’s finding that the respondent committed one or more family offense.  

In Matter of Pauline DD., v. Dawn DD.--- N.Y.S.3d ----, 2023 WL 402052, 2023 N.Y. Slip Op. 00353 (3d Dept.,2023) petitioner commenced a family offense proceeding. At the conclusion of the hearing, Family Court issued a bench decision, which found that the petitioner had committed the family offense of harassment in the second degree. The court also found that the respondent had committed an unspecified family offense and issued a two-year protection order. The Appellate Division held that where, as here, the court does not identify the family offense(s) proven by the petitioner, it may independently review the record and determine whether the evidence supports Family Court’s finding that the respondent committed one or more family offenses.  

Where Administrative Law Judge determination was properly before the Support Magistrate and Family Court because it was annexed to the petition and formed a part of that pleading  it would not, standing alone, serve as proof of the father’s allegations because it was not formally offered and received into evidence.

In Woodcock v Welt, --- N.Y.S.3d ----, 2023 WL 402096, 2023 N.Y. Slip Op. 00360 (3d Dept.,2023) in July 2019, the filed a support modification petition in which he claimed that he was disabled and unable to work. He provided support for that claim, however, annexing to the petition a May 2019 determination by an Administrative Law Judge (ALJ) who had presided over a hearing on his application for Social Security disability benefits. The ALJ determination included a description of the medical proof presented regarding the father’s physical condition, and findings that the father was disabled as defined by federal law as of November 1, 2016 and entitled to supplemental security income. After a hearing on the father’s petition, where the ALJ determination was a subject of inquiry but the written decision itself was never formally entered into evidence, the Support Magistrate issued a decision finding that the father, who had been laid off from his employment during the pendency of the proceeding, had demonstrated a change in circumstances since the prior support order in that he was physically impaired from working. The Support Magistrate found that the father remained capable of performing some work, imputed a lower annual income of $20,280 to him and, relying upon that figure, reduced his support obligation to $50 a month. Family Court denied the mother’s objections. The Appellate Division affirmed. It held that  although the ALJ determination was properly before the Support Magistrate and Family Court because it was annexed to the petition and formed a part of that pleading (see CPLR 3014), it would not, standing alone, serve as proof of the father’s allegations because it was not formally offered and received into evidence. However, an order from a Support Magistrate is final and Family Court’s review under Family Ct Act § 439(e) is tantamount to appellate review, and “the absence of timely objection” to evidence at a hearing will result in the waiver of any challenge to its consideration on appeal. The mother offered no objection to the consideration of the ALJ determination during the fact-finding hearing. Both counsel for the mother and the Support Magistrate questioned the father regarding the ALJ determination, and he testified regarding its existence, his purported inability to work and his receipt of SSI. The mother waived her objection to consideration of the ALJ determination under these circumstances and, as such, Family Court properly denied it. The Appellate Division was satisfied that the father demonstrated a sufficient change in circumstances to warrant a downward modification in his child support obligation

 

Family Court’s allocution in juvenile delinquency proceeding fell short of the statutory mandate warranting dismissal where Family Court failed to question respondent’s mother regarding the acts to which respondent admitted, his waiver of the fact-finding hearing or her awareness of the possible dispositional options. 

 

In  Matter of Christian W.,--- N.Y.S.3d ----, 211 A.D.3d 1378, 2022 WL 17835265, 2022 N.Y. Slip Op. 07275 (3d Dept.,2022) petitioner commenced three juvenile delinquency proceedings against respondent (born in 2008). In satisfaction of all three petitions, respondent admitted to the charge of criminal mischief in the fourth degree, as alleged in the first petition, and consented to be placed in a nonsecure facility for one year. Respondent appealed. The Appellate Division held that  respondent’s argument that the plea allocution did not comply with Family Ct Act § 321.3 was not moot,  despite the expiration of respondent’s placement,  because the delinquency determination challenged herein “implicates possible collateral legal consequences. Further, preservation of such a claim is not required. It held that  Family Court must “ascertain through allocution of the respondent and his [or her] parent or other person legally responsible for his [or her] care, if present, that (a) he [or she] committed the act or acts to which he [or she] is entering an admission, (b) he [or she] is voluntarily waiving his [or her] right to a fact-finding hearing, and (c) he [or she] is aware of the possible specific dispositional orders” (Family Ct Act § 321.3[1]). Although respondent’s mother was present at the April 2021 allocution, Family Court only asked her whether she had sufficient time to speak to respondent about the proceedings. The record reflected that the court failed to question respondent’s mother regarding the acts to which respondent admitted, his waiver of the fact-finding hearing or her awareness of the possible dispositional options. As a result, Family Court’s allocution fell short of the statutory mandate (see Family Ct Act § 321.3[1]) The order was reversed and the petition dismissed.

 

Appellate Division, Fourth Department

The Marihuana Regulation and Taxation Act) amended Family [Court] Act § 1046 (a) (iii), in pertinent part, by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana.

  In Matter of Gina R, --- N.Y.S.3d ----, 211 A.D.3d 1483, 2022 WL 17882663, 2022 N.Y. Slip Op. 07321(4th Dept.,2023) a neglect proceeding, the  Appellate Division, inter alia, agreed with the mother that the court erred in applying Family Court Act § 1046 (a) former (iii) in determining that petitioner established a prima facie case that the subject children were neglected based solely on the mother’s use of marihuana, without presenting evidence that the children’s condition was impaired or at imminent risk of impairment (see Family Ct Act § 1046 [a] [iii]) and modified the order by vacating that finding. “The Marihuana Regulation and Taxation Act (L 2021, ch 92) amended Family [Court] Act § 1046 (a) (iii), in pertinent part, by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana, while still allowing for consideration of the use of marihuana to establish neglect, provided that there is a separate finding that the child’s physical mental or emotional condition was impaired or is in imminent danger of becoming impaired.. The amendment to section 1046 (a) (iii) went into effect on March 31, 2021 (see L 2021, ch 92), two days before the court rendered its decision in this case and, as a general matter, a case must be decided upon the law as it exists at the time of the decision. Inasmuch as petitioner’s presentation of evidence was based on the state of the law at the time of the hearing, petitioner may not have fully explored the issue of impairment. It remitted the matter to Family Court to reopen the fact-finding hearing on the issue whether the children’s condition was impaired or at imminent risk of impairment as a result of the mother’s use of marihuana.

Contract is unambiguous if  language it uses has a definite and precise meaning, unattended by danger of misconception, and concerning which there is no reasonable basis for a difference of opinion.

In Vella v Vella, 2023 WL 1494924 (4th Dept.,2023) the Appellate Division held that whether an agreement is ambiguous is a question of law for the courts ... Ambiguity is determined by looking within the four corners of the documents, not to outside sources. (Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350, 696 N.E.2d 174 [1998]). A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’.

Family Court order staying petitions for custody is  not appealable as of right

In Feltz v Yanucil, 2023 WL 1495062 (4th Dept.,2023) the father filed a petition seeking, inter alia,  modification of the prior custody order and the Family Court determined that New York was an inconvenient forum and  issued an order staying the proceedings pending the commencement of custody and visitation proceedings in Mercer County, New Jersey. The Appellate Division held that the order staying the father’s petitions was not appealable as of right. (but granted leave to appeal on its own motion).  

The court does not have the right to impose counseling and related conditions as a prerequisite to visitation

In Sharlow v Hughes --- N.Y.S.3d ----, 2023 WL 1495695, 2023 N.Y. Slip Op. 00518 (4th Dept.,2023) the Appellate Division held that the court erred in requiring the mother to participate in counseling, take her medications as prescribed, and provide proof of a negative hair follicle test prior to having therapeutic visitation with her children. Although the court may include such directives as a component of visitation, it does not have the authority to make them a prerequisite to visitation. 

Where a party fails to appear in court on a scheduled date but is represented by counsel, the order of protection is not one entered upon the default of the aggrieved party and appeal is not precluded.

In Matter of Bailey v Bailey, --- N.Y.S.3d ----, 2023 WL 1877874, 2023 N.Y. Slip Op. 00780 (4th Dept., 2023) the Appellate Division agreed with the father that Family Court erred in entering an order of protection upon his default based on his failure to appear in court. The record establishes that the father was represented by counsel, and it has previously determined that where a party fails to appear in court on a scheduled date but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded. It agreed with the father that the court erred in issuing an order of protection without adhering to the procedural requirements of Family Court Act § 154-c (3) ..., inasmuch as the court did not make a finding of fact that the mother was entitled to an order of protection based upon ‘a judicial finding of fact, judicial acceptance of an admission by the father or judicial finding that the father has given knowing, intelligent and voluntary consent to its issuance. The court failed to specify which family offense the father committed. Nevertheless, remittal was not necessary because the record was sufficient for this Court to conduct an independent review of the evidence which was sufficient to establish by a fair preponderance of the evidence that the father committed the family offenses of criminal obstruction of breathing or blood circulation and stalking in the fourth degree warranting the issuance of an order of protection against him (see Family Ct Act § 832).

Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court

  

In Matter of Ianello v Colonomos, --- N.Y.S.3d ----, 2023 WL 1877715, 2023 N.Y. Slip Op. 00767 (4th Dept., 2023) the father appealed from an order that inter alia, awarded the parties joint legal custody of the child with primary physical custody to petitioner mother.  The Appellate Division observed that in the order on appeal, the court failed to make any factual findings whatsoever to support the award of primary physical custody. It is well established that the court is obligated ‘to set forth those facts essential to its decision. Here, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its initial custody determination, nor did it make any findings with respect to the relevant factors that it considered in making a best interests of the child determination. Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses. It reversed the order and remitted the matter to Family Court to make a determination on the petition and cross petition, including specific findings as to the best interests of the child, following an additional hearing if necessary.

Supreme Court

Supreme Court held that CPLR § 3122(d) was not intended to include reimbursement of attorneys fees within the context of a matrimonial action

 

  In L.F.,v. M.F.,--- N.Y.S.3d ----, 2023 WL 1875169, 2023 N.Y. Slip Op. 23038

(Sup Ct, 2023) the Supreme Court held that CPLR § 3122(d) was not intended to include reimbursement of attorneys fees within the context of a matrimonial action. CPLR § 3122(d) provides as follows: (d) Unless the subpoena duces tecum directs the production of original documents for inspection and copying at the place where such items are usually maintained, it shall be sufficient for the custodian or other qualified person to deliver complete and accurate copies of the items to be produced. The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery. After a close and fair reading of the plain language of CPLR § 3122(d), this Court did not find that the statute expressly or implicitly authorizes the reimbursement of attorney’s fees for a non-party witness responding to a lawfully issued subpoena, especially within the context of a matrimonial action. Nowhere in the plain language of CPLR § 3122(d) are the words “legal fees”, “counsel fees”, “attorney’s fees” or “fees”.

 New York's priest-penitent privilege belongs only to the penitent and only under circumstances affirmed by the New York Court of Appeals in Lightman v. Flaum, 97 N.Y.2d 128, 134, 736 N.Y.S.2d 300, 761 N.E.2d 1027 [2001] (only information imparted ‘in confidence and to obtain spiritual guidance).

In L.M., v. M.A., 2023 WL 1810035 (Sup Ct, 2023) the Supreme Court declined to quash a subpoena requiring a Coptic Orthodox Church Bishop to testify in a matrimonial action over his objection, allegedly based on religious doctrine, where his testimony was necessary to determine whether or not he conducted a wedding ceremony for the two parties to this action. The parties disagreed about whether they were married in 2017, with the plaintiff stating that they were married, and the defendant stating that the Bishop “blessed” their relationship, but did not marry them. The Bishop refused to testify as to which ceremony he performed, allegedly because his religious conviction prevents him from testifying in a civil action involving church members, and the parties and their witnesses have testified to diametrically conflicting views as to which ceremony took place. The Court and the parties all asked the Bishop to testify. Defendant served a valid subpoena upon the Bishop and the Bishop, through counsel, moved to quash the subpoena, stating through counsel and an affidavit from a Coptic theologian, that it is contrary to the tenets of the religion for the Bishop to testify in civilian court “brother against brother.”Both parties expressly waived any privilege and sought to compel the Bishop’s testimony. The court found that Bishop A.B.’s testimony was necessary to make that “compelling State interest” determination of whether or not the parties were married.

 

Family Court 

       In Matter of  I.M., N.M., J.A.D., D.M., K.D., B.M.,--- N.Y.S.3d ----, 2022 WL 18107290, 2022 N.Y. Slip Op. 22398 (Family Court, 2022) Administration for Children’s Services ( “ACS”) filed an abuse petition against the respondent P.D. (“RF”) on behalf of the children I.M., N.M., J.A.D., D.M. and K.D. A finding of abuse and neglect was entered against RF on behalf of all those children on August 2, 2022. On August 25, 2022, ACS filed another abuse petition against RF and T.M. ( “RM”). On August 29, 2022, the attorney for SC B.M. and the attorney for SC D.M. filed separate applications for DNA testing to be done on RF to determine if he was the biological father of their respective clients. On September 1, 2022, ACS filed a separate application for DNA testing under separate legal grounds but indicated that they fully supported the motions filed by the attorneys for the children. On September 8, 2022, RM filed an application in opposition to the motions filed by the attorneys for the children and ACS. RF filed a response on October 24, 2022, after requesting extensions. Family Court granted the motion. It observed that Family Court Act 1038-a is clear that “upon the motion of a petitioner or attorney for the child, the court may order a respondent to provide non-testimonial evidence, only if the court finds probable cause that the evidence is reasonably related to establishing the allegations in a petition filed pursuant to this article. Such order may include, but not be limited to, provision for the taking of samples of blood, urine, hair or other materials from the respondent’s body in a manner not involving an unreasonable intrusion or risk of serious physical injury to the respondent.” In Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982), the Court held that an order to obtain a blood sample of a suspect may be issued provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a “clear indication” that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable.” In re Anthony M., supra, the Court upheld that the agency had the ability to intervene and request paternity testing where paternity was disputed during a pending abuse matter. However, courts have not found probable cause in cases where the request for nontestimonial evidence was not related to the allegations. The Court granted the motions of the attorneys for the children and ACS and ordered RF and SC D.M. and B.M. to submit to DNA testing forthwith at an approved laboratory and in compliance with all regulations. The Court found  probable cause to order RF to submit to DNA testing for the purpose of determining the paternity of both D.M. and B.M. The Court heard and credited the testimony of I.M. during the 2020 fact-finding against RF and his testimony established that RF repeatedly sexually assaulted RM and that both RM and RF made statements claiming that D.M. was their child together. Thus, this put D.M. paternity at issue, as there are conflicting statements from the parties as to his paternity. Establishing his paternity is in his best interests, as he will then know who his father is and there will be no uncertainty surrounding the father/child relationship. As to B.M., ACS alluded in their motion and had previously stated on the record that RF may have made statements in another forum about being the father of B.M. This put his paternity at issue as well and it is in the best interest of the child for him to know his father. 

February 1, 2023

Appellate Division, First Department

Aggravating circumstances exist when the evidence shows that the child was present during a number of violent incidents directed at the petitioner. Aggravating circumstances also exist when the record demonstrates repeated violations of prior orders of protection. 

In  Matter of Marta M., v. Gopal M., --- N.Y.S.3d ----, 2023 WL 362984 (1st Dept., 2023) a family offense proceeding, the Appellate Division held that it was not an abuse of discretion for Family Court to conclude that a five-year order of protection for the mother’s benefit, and a two-year order of protection for the children’s benefit was warranted. The finding of aggravating circumstances was supported by a preponderance of the evidence showing that the child was present during a number of violent incidents directed at the petitioner (see Family Court Act § 827[a][vii]; 842). Aggravating circumstances also exist when the record demonstrates repeated violations of prior orders of protection. 

Statements of net worth need only be in “substantial compliance” with the prescribed form (22 NYCRR 202.16[b])

In Matter of Antoine L v Virginie F., --- N.Y.S.3d ----, 2023 WL 305694, 2023 N.Y. Slip Op. 00252 (1st Dept.,2023) the Appellate Division affirmed an order of the Family Court which to the extent appealed from, awarded the respondent mother $75,000 in interim counsel fees. It held that the court providently exercised its discretion in awarding the mother interim counsel fees (see Domestic Relations Law § 237[b]). Contrary to the father’s contention, the mother’s failure to include with her counsel fee application a statement of net worth in the prescribed form (see 22 NYCRR 202.16[k][2]) did not mandate denial of the application as a matter of law. Although 22 NYCRR 202.16(k)(2) provides that a motion for counsel fees shall not be heard “unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section,” subdivision (b) states that statements of net worth need only be in “substantial compliance” with the prescribed form (22 NYCRR 202.16[b]). The financial disclosure affidavit submitted by the mother substantially complied with the official form.

 

In Neglect proceeding a Suspended judgment for a period not exceeding six months, with no minimum period specified, is authorized by Family Court Act § 841(b)

In Matter of Annissa D v Martha D., --- N.Y.S.3d ----, 2023 WL 362978 (Mem), 2023 N.Y. Slip Op. 00264 (1st Dept.,2023) the Appellate Division affirmed an order of the Family Court which found that the respondent committed acts constituting the family offenses of disorderly conduct and harassment in the second degree, entered a suspended judgment set to expire immediately, vacated the temporary order of protection, and marked the matter off the calendar. It held that  Family Court’s disposition was authorized by Family Court Act § 841(b), which provides for the issuance of a suspended judgment for a period not exceeding six months, with no minimum period specified. Under the circumstances of the case, Family Court providently exercised its discretion in imposing such a limit on the suspension period. At the close of the fact-finding hearing, the matter had been pending for nearly two years with a temporary order of protection in place against the respondent, and there had been no allegations that the respondent failed to comply with the order or engaged in any behavior that would warrant an extension. Moreover, in making its determination, the court properly considered the relationship of the parties. Based on the same factors that supported the limit on the suspension period, Family Court providently determined that there was good cause to dismiss the petition.

 

Appellate Division, Second Department

A party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children

In Martinez v Carpanzano, --- N.Y.S.3d ----, 2023 WL 152045 (Mem), 2023 N.Y. Slip Op. 00088 (2d Dept., 2023) the Appellate Division affirmed an order which denied the father petition for a downward modification of his child support obligation on the basis that there had been a substantial change in circumstances, namely, that the parties’ older child had reached the age of twenty-one and was now emancipated. The Appellate Division held that while the eldest child’s reaching the age of twenty-one constituted emancipation, this did not automatically reduce the unallocated amount of monthly child support owed by the father, considering the express terms of the parties’ judgment of divorce and the fact that the parties’ other child remained unemancipated. Rather, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children. The father failed to make the requisite showing. 

Emancipation occurs once the child becomes economically independent through employment and is self-supporting. A child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support.

 In Vayner v Tselniker, --- N.Y.S.3d ----, 2023 WL 152093, 2023 N.Y. Slip Op. 00099 (2d Dpt., 2023 the parties’ stipulation of settlement which was incorporated into the judgment of divorce provided that the child would be emancipated if he attained the age of 18 years and became employed full-time and self-supporting.  After a hearing, the Support Magistrate issued an order finding that the child was not emancipated during the period of time from December 14, 2020, to November 27, 2021. The Appellate Division affirmed.  It observed that emancipation of the child suspends the parent’s support obligation. Emancipation occurs once the child becomes economically independent through employment and is self-supporting. The fact that a child may work full time is not determinative, as a child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support. The evidence demonstrated that, although the child worked full-time and paid for his own car insurance, his mother still paid for his food, shelter, clothing, laundry, cell phone service, and an income tax preparation service, and his father provided the child with cash and purchased parts that were used to repair the child’s cars.

Order in neglect proceeding relating to the father’s access to the children had to be reversed and the matter remitted where no court proceeding occurred, nor was father present for a discharge conference that was to be held by the petitioner.

In Matter of Fatuma I. --- N.Y.S.3d ----, 2022 WL 17824593, 2022 N.Y. Slip Op. 07234 (2d Dept.,2022) a neglect proceeding Family Court which directed that the father shall not be present with the children unsupervised, that the father’s parental access with the children shall be supervised by the mother or the maternal grandfather, and that the father shall not reside in or spend the night in the children’s home while the children are present. It found that the Family Court did not hold a hearing before entering the provisions of the order regarding the father’s access to the children, and the father had no opportunity to be heard with respect to those provisions in the order, The court issued the order, apparently with the consent of the petitioner and the mother. No court proceeding occurred, nor did the record reflect that the father was present for a discharge conference that was to be held by the petitioner. Under these circumstances, the provisions of the order relating to the father’s access to the children had to be reversed and the matter remitted to the Family Court, to conduct a new permanency hearing with respect to the father’s access to the children

Supreme Court erred by declining to distribute any portion of the husband’s 401(k) account to the wife. Husband directed to obtain a letter from his employer setting forth the value of his 401(k) account as of date of commencement and pay to the wife 50% of the amount

 

In Westbrook v Westbrook, --- N.Y.S.3d ----, 2023 WL 305712, 2023 N.Y. Slip Op. 00255 (3d Dept.,2023) Plaintiff (husband) and defendant (wife) were married in April 2010 and hade three minor children. In August 2020, the husband commenced the action for divorce. At trial, both parties proceeded in a self-represented capacity. The court ordered the husband to pay maintenance to the wife of $150 per week for three years and six months. Supreme Court ordered that the husband continue to pay the mortgage until 30 days after the judgment of divorce, at which time either party could buy out the other’s interest for $7,500 or the house was to be sold. The court did not distribute the husband’s 401(k) account due to a lack of proof regarding the account’s accrual. The husband was to retain and be responsible for a Dodge Ram 1500, and the wife would retain possession and be responsible for maintaining a Jeep Grand Cherokee. Supreme Court ordered that each party also be responsible for all debts solely in his or her name. The court determined that neither party was entitled to an award of counsel fees. The wife appealed.

The Appellate Division found that Supreme Court erred by declining to distribute any portion of the husband’s 401(k) account to the wife. The parties did not dispute that the amount in the husband’s 401(k) account was approximately $1,000 and that those funds accumulated during the marriage and were thus marital property subject to equitable distribution. Although the valuation of the husband’s 401(k) account was not entirely clear, it found that the wife was entitled to her equitable share. It directed the husband, within 60 days of the date of this decision, to obtain a letter from his employer setting forth the value of his 401(k) account as of August 28, 2020 – which is the date the husband commenced this action. The husband was then directed, within 90 days of the date of receipt of this letter, to pay to the wife 50% of the amount set forth by the employer pursuant to the Majauskas formula

Real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse. Appreciation in the value of [that] separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. 

In George JJ., v. Shannon JJ., --- N.Y.S.3d ----, 2023 WL 306135, 2023 N.Y. Slip Op. 00256 (3d Dept.,2023) Plaintiff (husband) and defendant (wife) were married in 2012 and had four unemancipated children. In 2018, the husband commenced the divorce action. The wife joined issue and asserted a counterclaim alleging an irretrievable breakdown of the parties’ relationship (see Domestic Relations Law § 170[7]). Following a bench trial, Supreme Court issued a decision where it, among other things,  granted the husband a financial interest in a property purchased by the wife before the marriage ( Hancock property) and in a certain number of livestock. 

The Appellate Division held that Supreme Court erred in awarding the husband a financial interest in the Hancock property. Whether a particular asset is marital or separate property is a question of law that a trial court must initially address to ascertain the marital estate. Although a parcel of real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse any appreciation in the value of [that] separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. The “nontitled spouse seeking an interest in the appreciation of separate property occurring during the marriage bears the burden of establishing that the increased value was due in part to his or her efforts as opposed to market forces or other unrelated factors. It was undisputed that the Hancock property was purchased by the wife prior to the marriage. Although the parties also purchased a mobile home for the property and the husband testified that he used his skill as a union carpenter to pour the foundation and place the electric, these events also occurred prior to the marriage and did not transmute the property into marital property. Even though Supreme Court credited the wife’s testimony that a market analysis valued the Hancock property at $49,000, the husband did not dispute the wife’s further testimony that they received an insurance policy on the Hancock property in the amount of $45,000 before the marriage – thereby resulting in a marginal increase in value over the span of the marriage. Despite that the husband offered testimony as to the renovations and general upkeep that he performed at the various other properties owned or managed by the parties during their marriage, he did not indicate what specific efforts he made on the Hancock property after the date of their marriage. Based on this record, the husband did not satisfy his burden of establishing that the value of the Hancock property increased due to his efforts, as opposed to market forces or other unrelated factors. Accordingly, it was an abuse of discretion to award the husband a financial interest in same (see Ceravolo v. DeSantis, 125 A.D.3d at 117, 1 N.Y.S.3d 468; Macaluso v. Macaluso, 124 A.D.3d at 961, 1 N.Y.S.3d 464).

 

The Appellate Division found that the record did not support Supreme Court’s valuation of livestock and, therefore, it was an abuse of discretion to award the husband a $40,000 distribution for the cows jointly owned by the parties. Neither party offered any evidence relating to the value of the cows.

The Appellate Division pointed out that although, when the record is sufficiently developed, this Court may, in the interest of judicial economy, make any adjustments necessary for the equitable distribution of the marital estate” absent a detailed record, the Court may remit the matter to Supreme Court for a new determination. Inasmuch as the husband was not entitled to any portion of the value of the Hancock property, and the Supreme Court’s distribution of that asset and of the livestock, both of which were significant assets in the marital estate, may have affected the court’s overall scheme of distribution, it remitted for Supreme Court to reconsider equitable distribution

 

Family Ct Act § 625(a) provides that if all parties consent the court may, dispense with the dispositional hearing in neglect proceeding. Family Court improperly dispensed with the dispositional hearing where no indication respondent affirmatively consented

 

In Matter of Harmony F., --- N.Y.S.3d ----, 2023 WL 305710, 2023 N.Y. Slip Op. 00259  (3d Dept.,2023) the Appellate Division found that petitioner clearly and convincingly established that the respondent had not sufficiently planned for the child’s future and had taken insufficient steps to correct the conditions that led to the child’s removal and, accordingly, that Family Court properly adjudicated the child as permanently neglected by the father. However, it agreed with respondent that Family Court improperly dispensed with the dispositional hearing under the circumstances presented. Family Ct Act § 625(a) expressly provides that, “[u]pon completion of [a] fact-finding hearing, [a] dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing”. Here, the court stated that there was no need for a further or separate dispositional hearing before rendering its determination that the respondent had permanently neglected the child and terminating his parental rights. However, there was no indication that the respondent affirmatively consented to dispense with the hearing, and, absent consent, the requirement of a dispositional hearing may not be circumvented. Even though the record provided adequate support for Family Court’s disposition, it remitted the matter for the court to conduct a dispositional hearing or to otherwise affirmatively gain the parties’ consent to dispense of the matter without one.

  

Petitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights, where among other things, the caseworker provided incorrect information to the court.

In  Matter of Syri’annah PP.--- N.Y.S.3d ----, 2023 WL 305694, 2023 N.Y. Slip Op. 00252 (3d Dept.,2023) the Appellate Division reversed an order which granted petitioner’s application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject children to be abandoned, and terminated respondent’s parental rights. It found that petitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights. The record demonstrated that respondent filed numerous motions to resume visitation, return his children, intervene in the neglect proceeding against the mother and terminate the children’s placement. During at least one appearance, respondent remarked that he would continue to “battle” for the return of his children, even prompting Family Court to candidly admit that respondent had been an active participant during the entire proceeding. Respondent had several visits with the children where he inquired if he could obtain their school records and asked what clothing or supplies they needed. The respondent made several inquiries to the caseworker and the mother, including during the delay caused by the pandemic. The record demonstrated that petitioner  acted in a manner that has prevented or discouraged respondent’s ability to visit and communicate with the children. There were  several troubling instances in the record where the caseworker or the coordinator cancelled respondent’s scheduled visitation with the children due to his late confirmation of the scheduled visit or arrival including one egregious incident where respondent was three minutes late to confirm an appointment for later that day. Respondent contended that his employment imposed inherent difficulties for him to confirm the appointments pursuant to the coordinator’s self-imposed deadline, including due to cell phone use restrictions at work and a lack of cellular service at the job site, but that the caseworker and the coordinator refused to consider his requests for additional time or accommodations to confirm the visits. The appellate AFC echoed this argument, adding that petitioner knew that respondent worked during the time he was required to confirm his visits but that the caseworker and the coordinator refused to accommodate his reasonable requests to extend the window he had to confirm the visits, which were scheduled to occur several hours later. Notwithstanding the fact that respondent cancelled one visit due to illness, attended five visits and had seven visits cancelled on him in the foregoing manner, the caseworker then reported to Family Court that respondent had only attended 4 out of 20 scheduled visits. Based on the incorrect information presented by the caseworker, who relied on text messages from the coordinator, who did not testify at the hearing, petitioner was successful in obtaining an order suspending respondent’s visitation with the children in December 2019, thereby making it more difficult for respondent to visit and communicate with the children.

January 16, 2023

Appellate Division, Third Department

Where May 2022 custody order did not indicate that the 2021 order was being superseded, vacated or that it relinquished the grandmother’s right to pursue a custody appeal, the grandmother’s appeal from the 2021 custody order was not moot

In the Matter of Linda UU.,v. Dana VV., 2023 WL 95177 (3d Dept.,2022) following a fact-finding hearing on all petitions, in 2021 Family Court found that the grandmother failed to establish the existence of extraordinary circumstances to supplant the mother’s right to custody of the child, and ordered the mother to have sole legal and residential custody of the child and awarded the grandmother visitation every other weekend. Family Court also determined that the grandmother failed to establish a family offense and failed to establish a willful violation of an order of protection or the custody order. While the grandmothers appeal was pending, Family Court issued a custody order in May 2022. The Appellate Division took judicial notice of the order. It disagreed with the mother that the 2022 order rendered the grandmother’s appeal moot. The 2022 order continued sole legal and residential custody of the child with the mother and modified the grandmother’s visitation. The May 2022 order did not indicate that the 2021 order was being superseded, vacated or that it relinquished the grandmother’s right to pursue a custody appeal. Accordingly, the grandmother’s appeal was not moot

Appellate Division, Fourth Department

A child in a custody proceeding is entitled to effective assistance of counsel which requires the AFC to take an active role in the proceeding. The child received ineffective assistance where the AFC made his client’s wish that there be a change in custody known to the court, but he did not “zealously advocate the child’s position.”

In Matter of Sloma v Saya, --- N.Y.S.3d ----, 210 A.D.3d 1494, 2022 WL 17075260, 2022 N.Y. Slip Op. 06587 (4th Dept.,2022) the Attorney for the Child (AFC) appealed from an order of the Family Court which determined at the conclusion of the father’s presentation of evidence at a trial that he failed to establish a change in circumstances and granted the mother’s motion to dismiss the father’s custody modification petition. The Appellate Division held that under the circumstances of this case, she had standing to appeal the order (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 71-74, 103 N.Y.S.3d 445 [2d Dept. 2019]) and that the child received ineffective assistance of counsel. It reversed the order and remitted the matter for a new trial. The Appellate Division pointed out that Section 7.2 of the Rules of the Chief Judge provides that, in proceedings such as an article 6 custody proceeding where the child is the subject and an AFC has been appointed pursuant to Family Court Act § 249, the AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]). “[I]n ascertaining the child’s position, the [AFC] must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” (22 NYCRR 7.2[d] [1]). “[I]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” (22 NYCRR 7.2 [d] [2]). Moreover, a child in an article 6 custody proceeding is entitled to effective assistance of counsel which requires the AFC to take an active role in the proceeding. Here, the AFC at trial made his client’s wish that there be a change in custody known to the court, but he did not “zealously advocate the child’s position.” He did not cross-examine the mother, the police officers, or the school social worker called by the father. It agreed with the AFC on appeal that the trial AFC’s cross-examination of the father was designed to elicit unfavorable testimony related to the father, thus undermining the child’s position. His questioning also seemed designed to show that there was no change in circumstances since the entry of the last order. Further, he submitted an email to the court in response to the mother’s motion to dismiss in which he stated his opinion that there had been no change in circumstances, which again went against his client’s wishes. While the AFC’s actions may have been the result of good intentions, he did not “zealously advocate the child’s position” (22 NYCRR 7.2 [d]), and the child was denied effective assistance of counsel.

Family Court

For a petition for an order and judgment of parentage to be granted when there is a case involving assisted reproduction and the parties are not married, the consent to the assisted reproduction must be in a record in such a manner as to indicate the mutual agreement of the intended parents to conceive and parent a child together

In  A.B., v. M.S., 2022 WL 18141596 (Fam. Ct., 2022), M.S. sought an Order and Judgment of Parentage (Assisted Reproduction) for a baby being carried by A.B., due to be born on or about May 28, 2022. The parties appeared before a Support Magistrate on April 22, 2022. On that date, Ms. S. was unrepresented, and Ms. B. appeared with her attorney. The Support Magistrate adjourned the matter and appointed counsel to Ms. S., and parties and counsel appeared on April 29, 2022. On that date, Ms. B. indicated that she was not consenting to an order of parentage, but that she was waiving her right to a hearing and consenting to the Support Magistrate deciding the matter based upon the papers that had been filed. The Support Magistrate entered an Order and Judgment of Parentage (Assisted Reproduction), holding that “upon the child’s birth, A.B. and M.S. will be the legal parents of the child who is expected to be born on May 31, 2022, and upon the birth of such child, they shall forthwith assume responsibility for the child’s maintenance and support”. A.B. objected to the entry of the Order and Judgment of Parentage (Assisted Reproduction), asserting the Support “Magistrate have conducted a fact-finding to fully flesh out the record.” The Objection was denied. Family Court found that Ms. B. made an informed decision to waive her right to a hearing. It observed that the “Child Parent Security Act”, set forth at Article 5-C of the Family Court, is intended to “legally establish a child’s relationship to his or her parents where the child is conceived through assisted reproduction” (Family Court Act Section 581-101). In order for a petition for an order and judgment of parentage to be granted when there is a case involving assisted reproduction and the parties are not married, “the consent to the assisted reproduction must be in a record in such a manner as to indicate the mutual agreement of the intended parents to conceive and parent a child together.” (Family Court Act Section 581-304(b)). Attached to the petition in this matter was an “Intrauterine Insemination Consent Form” where A.B. was listed as the “patient” and M.S. was listed as the “partner.” Both Ms. B. and Ms. S. placed their initials in several locations throughout the document in spaces calling for the initials of both the “patient” and the “partner.” Paragraph 7 of the form read as follows: “Responsibility of Offspring. I/We understand that, if a woman undergoes intrauterine insemination with the consent of her husband/partner, the husband/partner is treated in law as if he were the natural father of a child thereby conceived. I/We further agree a) That any child or children conceived or born as a result of the intrauterine insemination shall be my/our legitimate child and heirs of my/our body; and b) That such child or children conceived or both shall be considered in all respects including descent and distribution of my property, a child or children or my/our body(ies).” Both parties signed the form. The Support Magistrate made it clear to both parties on April 29, 2022, that he considered the language in the form as sufficient to establish the mutual agreement, intent and consent required to enter an order of judgment and parentage. The Support Magistrate stated unequivocally to Ms. B. that “If you waive that right to a hearing, based on the evidence presented to me, the documents presented to me, I will make an order of parentage.” By waiving her right to present evidence to the contrary, Ms. B. lost the ability to claim, after the fact, that the form failed to establish the requisite mutual consent and intent. The court refused to consider any factual arguments set forth in either the objection or the rebuttal as the time to make such arguments would have been at a hearing. However, the right to a hearing was waived.

January 1, 2023

Appellate Division, Second Department

Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce where the amendment proposed by the defendant was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).

In Ferrigan v Ferrigan, --- N.Y.S.3d ----, 2022 WL 17660436, 2022 N.Y. Slip Op. 07058 (2d Dept.,2022) the parties were married in March 1996. Their judgment of divorced entered August 12, 2003 included a stipulation of settlement dated February 27, 2003 which was incorporated but not merged into the judgment. In August 2018, the defendant moved, inter alia, pursuant to CPLR 5019(a) to resettle the judgment of divorce on the ground that a provision in the judgment of divorce requiring him to provide health insurance for the parties’ children was inconsistent with the provision in the stipulation which provided that the plaintiff would provide health insurance for the children through her employer, but if she were unemployed, the defendant would do so through his employer. In an order dated April 1, 2019, the Supreme Court, inter alia, granted the defendant’s motion so as to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to provide health insurance for the parties’ children..

 

The Appellate Division modified. It held that the defense of laches is not a basis to preclude the resettlement of the judgment of divorce as the plaintiff failed to show that she was prejudiced by the defendant’s delay in seeking to correct the error. Since the plaintiff failed to show a change in circumstances making it inequitable to grant the requested relief, t]he mere lapse of time without a showing of prejudice will not sustain a defense of laches. Resettlement of a judgment of divorce pursuant to CPLR 5019(a) is an appropriate remedy when the judgment does not accurately incorporate the terms of a stipulation of settlement. Although the judgment of divorce provided that the defendant was responsible for providing health insurance for the parties’ children, that provision was inconsistent with the terms of the stipulation which contained a provision which set forth that the plaintiff was responsible for providing health insurance for the parties’ children through her employer unless she became unemployed, and then the defendant would be responsible for providing health insurance for them through his employer. Supreme Court properly granted defendant’s motion to resettle the judgment of divorce to the extent that it was inconsistent with the stipulation. However, the Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce to the extent it sought to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to be solely responsible to provide health insurance for the parties’ children. The amendment proposed by the defendant failed to comport with the terms of the stipulation regarding the responsibility of the parties as to the health insurance for their children and was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).

Appellate Division, Third Department

Argument that his change in residence constituted a change in circumstances was unpreserved for appellate review  “absent a motion to conform the pleadings to the proof” 

In Matter of Anthony JJ, v Angelin JJ, --- N.Y.S.3d ----, 2022 WL 17835304 (3d Dept.,2022) Family Court dismissed the father’s custody modification petition, finding that the father had failed to demonstrate a change in circumstances warranting a best interests analysis. The Appellate Division affirmed. It held that the required change in circumstances may be found to exist where the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the children. Here, the record as a whole reflected a level of hostility and mutual distrust between the parties that demonstrated that the parties were incapable of working together in a cooperative fashion for the good of their children. However, as Family Court found, this hostility and failure to cooperate existed at the time of the prior order – serving as the basis, at least in part, for awarding the mother sole legal and primary physical custody of the children, and was therefore not a new development. The father’s argument that his change in residence constituted a change in circumstances was unpreserved for appellate review  “absent a motion to conform the pleadings to the proof” before Family Court.

 

Condition in dispositional neglect order requiring Respondent to “maintain and provide documentation of legal income source(s) sufficient to support the child” did not violate her constitutional rights where Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way

In Matter of  Y. SS.,--- N.Y.S.3d ----, 2022 WL 17835259(3d Dept.,2022) after a hearing Family Court issued a decision finding the subject child to be a neglected child. A dispositional hearing was held, after which Family Court issued a dispositional order indicating that respondent has yet to achieve any insight that she engaged in any wrongful and neglectful behavior and ordering that the subject child remain in petitioner’s custody. The Appellate Division affirmed.  It was established that respondent had a friend with whom she sometimes performed sexual services for money. At some point, in text messages, the friend began asking for things involving the subject child. Respondent testified that she “knew he wanted something with my daughter, but he wasn’t getting it.” On one occasion, respondent sent a naked photograph of the subject child to the friend. On another occasion, during a telephone call with the friend, respondent offered to perform oral sex on him while allowing him to look at the subject child naked while she slept. In text messages, respondent provided her address to the friend. The Appellate Division held that the willingness of respondent to involve the subject child in the performance of her sexual services for money put the subject child’s physical, emotional and mental health in imminent danger and we cannot say that “a reasonable and prudent parent [would] have so acted ... under the circumstances” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]). Although respondent testified that she took the photograph to send to the child’s doctor, Family Court found respondent’s testimony incredible. Family Court properly adjudicated the subject child to be neglected. The Appellate Division rejected Respondents argument  that some of the conditions of Family Court’s dispositional order were unconstitutional. Respondent challenged the condition that she “maintain and provide documentation of legal income source(s) sufficient to support the child.” Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way. It was unclear how this condition, which encouraged her not to engage in prostitution as a means of income, violated her constitutional rights. Respondent also challenged the condition that she “acknowledge and demonstrate an understanding of her role in the neglect of the subject child ..., specifically how her prostitution and involvement of [the subject child] in that prostitution as sexual bait for a pedophile harmed [the subject child] and placed [her] at risk of further harm.” Contrary to respondent’s argument, this condition did not require her to admit to a finding of neglect, but rather that she recognize and understand how involving the subject child in her prostitution put the child at risk. A demonstration of understanding would decrease the chance of such behavior recurring. It did not find that this condition implicated respondent’s right to due process of law.

Appellate Division, Fourth Department 

Although the burden of proof in a Neglect proceeding rests with the petitioner, once the petitioner has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability.

In Matter of Mea V, 210 A.D.3d 1408 (4th Dept, 2022) a neglect proceeding, the Appellate Division observed that a prima facie case of child abuse or neglect may be established by evidence that a child sustained an injury that would ordinarily not occur absent an act or omission of respondents and that respondents were the caretakers of the child at the time the injury occurred (Family Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40 [1993]). Although the burden of proof rests with the petitioner, once the petitioner “has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability. To rebut the presumption of parental culpability, the respondents may present evidence to (1) establish that during the time period when the child was injured, the child was not in respondents care; (2) demonstrate that the injury or condition could reasonably have occurred accidentally, without the acts or omission of respondents; or (3) counter the evidence that the child had the condition which was the basis for the finding of injury . In determining whether to rely on the presumption, the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretakers explanation in light of all the circumstances. The Appellate Division rejected respondents contention that, inter alia,  they rebutted the presumption of parental culpability by providing a reasonable explanation for how the child’s injuries could have occurred without any act or omission on their part. Respondents originally claimed to the pediatrician and the Child Protective Services caseworker that the child’s injuries, which included 28 rib fractures and an injured lung, were accidental, but none of the medical evidence supported that claim. It concluded that Family Court properly rejected respondents’ subsequent claim at trial that the injuries were due to an underlying medical condition: the testimony of respondents’ expert witnesses was incredible and their conclusions were not consistent with the other evidence.

 

Family Court

 

Where, no other State could properly assume custody jurisdiction it was appropriate for New York to assume “vacuum jurisdiction” 

In Olaide O v Oluseun O, 2022 WL 17727139 (unreported disposition) (Fam Ct, 2022) the child F. had resided in Nigeria with relatives  for his entire life. During the custody hearing, Ms. O., who resided in New York  testified that she and her husband had resided in Nigeria and that Mr. O. left Nigeria in 2016 with the intention that she and the children would follow as soon as possible. Based on testimony presented at the hearing, the Court found that Ms. O. never consented to the child’s permanent residence in Nigeria, that the relatives caring for the child in Nigeria were not persons acting as a parent and that it was the intention of both parties to bring the child to the United States. Therefore, the Court held that: “Here, no other State can properly assume jurisdiction. Nor can jurisdiction properly lie in Nigeria when both parents, who have a superior right to custody, reside in New York. Additionally, the Children who reside here in NY have rights to visit with their sibling that cannot be effectuated without the court assuming jurisdiction. Therefore, it was appropriate for New York to assume “vacuum jurisdiction” in this case. Nusrat C. v. Muhammed R., 67 AD3d 419 (1st Dept 2009) (finding that subject matter jurisdiction existed under both DRL § 70 (a) and DRL 76(1)(d) even though the child lived abroad, because both parents lived in the state and were personally before the court). Pursuant to DRL 76(1)(d), this Court has jurisdiction over the child F. O.”

 

Domestic Relations Law § 240, subd.1 (a-3). Appointment of  a child custody forensic evaluator on behalf  of the  court.

Domestic Relations Law § 240, subd.1 was amended to add subdivision (a-3) which provides that the court may appoint a child custody forensic evaluator on behalf  of the  court  to evaluate and investigate the parties and a child or children in a proceeding involving child custody and visitation, provided the individual is a psychologist, social worker or psychiatrist who is licensed in the state of New York and has undergone the required biennial domestic violence-related training and  has  received  within  the  last two years, a certification of completion for completing the training program pursuant to Executive Law § 575,  subdivision 3 (O). No  individual  may be appointed by a court to conduct a forensic evaluation in a proceeding involving child custody and visitation pursuant to this paragraph unless the individual has received within the last two  years,  a certification of completion for completing the training program pursuant to  Executive Law § 575   subdivision 3 (O). 

         Laws of 2022, Chapter 740, § 1 enacted on December 23, 2022  amended Domestic Relations Law § 240 Subdivision 1 by adding a new paragraph (a-3), effective as provided in § 4 on the 180th day after it  shall have become a law (June 25, 2023).  It provides as follows:

         (a-3)  Court  ordered forensic evaluations involving child custody and

       visitation. (1) The court may appoint a forensic evaluator on behalf  of

       the  court  to evaluate and investigate the parties and a child or chil-

       dren in a proceeding involving child  custody  and  visitation  provided

       that  the  child  custody  forensic  evaluator is a psychologist, social

       worker or psychiatrist who is licensed in the state of New York and  has

       received  within  the  last two years, a certification of completion for

       completing the training program pursuant to paragraph (o) of subdivision

       three of section five hundred seventy-five of the executive law.

        (2) Notwithstanding any provision of law to the contrary, no  individ-

       ual  shall be appointed by a court to conduct a forensic evaluation in a

       proceeding involving child custody and visitation pursuant to this para-

       graph unless such individual has received within the last two  years,  a

       certification of completion for completing the training program pursuant

       to  paragraph  (o) of subdivision three of section five hundred seventy-

       five of the executive law.

 

         (3)   A psychologist, social  worker  or  psychiatrist  authorized  to

       conduct  court  ordered  child  custody forensic evaluations pursuant to

       this section shall notify the court in which such individual requests to

       be considered for such court ordered  evaluations.    Any  psychologist,

       social  worker  or  psychiatrist who no longer meets the requirements of

       this section in regards to completing within  the  last  two  years  the

       training  program  pursuant  to  paragraph  (o)  of subdivision three of

       section five hundred seventy-five of the executive law  shall  be  obli-

       gated to inform such courts within seventy-two hours of noncompliance so

       as to be removed from consideration for court ordered evaluations.

        (4)  Upon  appointment,  the  court  shall  require such child custody

       forensic evaluator to show proof of certification for completing  within

       the  last  two  years  the training program pursuant to paragraph (o) of

       subdivision three of section five hundred seventy-five of the  executive

       law.

Laws of 2022, Ch 798, effective March 29, 2023 amended Domestic Relations Law, §11, Subd.1, 1-a, 2 and 3-a, 12, 13 and 13-b. One-day marriage officiants

The Domestic Relations Law was amended to allow individuals to be designated as one-day marriage officiants in order to solemnize marriages. The Executive Law was amended by adding Executive Law §110 that outlines the requirements that must be met to designate a lay person as a one-day marriage officiant.

Domestic Relations Law, §11, Subd.1, 1-a, 2 and 3-a  was amended on December 28, 2022 by Laws of 2022, Ch 798, §1, effective March 29, 2023 to read as follows:

  

   

     1.  A  clergyman or minister of any religion, or by the senior leader,

   or any of the other leaders, of The Society for Ethical Culture  in  the

   city  of New York, having its principal office in the borough of Manhat-

   tan, or by the leader of  The  Brooklyn  Society  for  Ethical  Culture,

   having  its  principal  office in the borough of Brooklyn of the city of

   New York, or of the Westchester Ethical Society,  having  its  principal

   office  in Westchester county, or of the Ethical Culture Society of Long

   Island, having its principal office in Nassau county, or of  the  River-

   dale-Yonkers  Ethical Society having its principal office in Bronx coun-

   ty, or by the leader of any other  Ethical  Culture  Society  affiliated

   with  the American Ethical Union; provided that no clergyman or minister

   as defined in section two of the religious corporations law, or  Society

   for  Ethical  Culture leader shall be required to solemnize any marriage

   when acting in his or her capacity under this  subdivision.    [1-a.]  A

   refusal  by  a  clergyman  or  minister as defined in section two of the

   religious corporations law, or Society for  Ethical  Culture  leader  to

   solemnize  any  marriage under this subdivision shall not create a civil

   claim or cause of action or result in  any  state  or  local  government

   action to penalize, withhold benefits or discriminate against such cler-

   gyman or minister[.]; or,

     2.  The  current  or a former governor, a mayor of a village, a county

   executive of a county, or a mayor,  recorder,  city  magistrate,  police

   justice or police magistrate of a city, a former mayor or the city clerk

   of  a  city of the first class of over one million inhabitants or any of

   his or her deputies or not more than four regular clerks, designated  by

   him  or  her  for  such  purpose as provided in section eleven-a of this

   article, except that in cities which contain more than one hundred thou-

   sand and less than one million inhabitants, a marriage shall  be  solem-

   nized  by  the mayor, or police justice, and by no other officer of such

   city,  except  as  provided  in  subdivisions  one  and  three  of  this

   section[.]; or,

     3-a.  A judge or peacemaker judge of any Indian tribal court, a chief,

   a headman, or any member of any tribal council or other  governing  body

      of any nation, tribe or band of Indians in this state duly designated by

   such  body  for  the  purpose  of officiating at marriages, or any other

   persons duly designated by such body, in keeping with  the  culture  and

   traditions  of  any such nation, tribe or band of Indians in this state,

   to officiate at marriages[.]; or,

     3-b. A one-day marriage officiant, as designated by the  secretary  of

   state pursuant to section one hundred ten of the executive law; or,

Matter in italics is new; matter in brackets [ ] is old law to be omitted.

Domestic Relations Law, §12  was amended on December 28, 2022 by Laws of 2022, Ch 798, §2, effective March 29, 2023 to read as follows:

  

     § 12.  Marriage, how solemnized.  No particular form  or  ceremony  is

   required when a marriage is solemnized as herein provided by a clergyman

   [or],  magistrate,  or  one-day  marriage officiant as designated by the

   secretary of state pursuant to section one hundred ten of the  executive

   law but the parties must solemnly declare in the presence of a clergyman

   [or],  magistrate,  or  one-day  marriage  officiant  and  the attending

   witness or witnesses that they take each other  as  [husband  and  wife]

   spouses.  In every case, at least one witness beside the clergyman [or],

   magistrate, or one-day marriage officiant must be present at the ceremo-

   ny.

     The preceding provisions of this chapter, so far as they relate to the

   manner of solemnizing marriages, shall not affect  marriages  among  the

   people  called friends or quakers; nor marriages among the people of any

   other denominations having as such any particular  mode  of  solemnizing

   marriages;  but  such marriages must be solemnized in the manner hereto-

   fore used and practiced in their respective societies or  denominations,

   and marriages so solemnized shall be as valid as if this article had not

   been enacted.

Matter in italics is new; matter in brackets [ ] is old law to be omitted.

Domestic Relations Law, §13 was amended on December 28, 2022 by Laws of 2022, Ch 798, §3, effective March 29, 2023 to read as follows:

  

     § 13. Marriage  licenses.  It  shall  be  necessary  for  all  persons

   intended  to  be  married in New York state to obtain a marriage license

   from a town or city clerk in New York state and to deliver said license,

   within sixty  days,  to  the  clergyman  [or],  magistrate,  or  one-day

   marriage  officiant  as designated by the secretary of state pursuant to

   section one hundred ten of the executive law who is to officiate  before

   the marriage ceremony may be performed. In case of a marriage contracted

   pursuant  to  subdivision  four  of section eleven of this chapter, such

   license shall be delivered to the judge of the court  of  record  before

   whom  the acknowledgment is to be taken. If either party to the marriage

   resides upon an island located not less than twenty-five miles from  the

   office  or  residence of the town clerk of the town of which such island

   is a part, and if such office or residence is not on  such  island  such

   license  may  be obtained from any justice of the peace residing on such

   island, and such justice, in respect to powers and  duties  relating  to

   marriage  licenses,  shall  be subject to the provisions of this article

   governing town clerks  and  shall  file  all  statements  or  affidavits

   received  by  him while acting under the provisions of this section with

   the town clerk of such town. No application for a marriage license shall

   be denied on the ground that the parties are of the same, or  a  differ-

   ent, sex.

Matter in italics is new; matter in brackets [ ] is old law to be omitted.

Domestic Relations Law, §13-b was amended on December 28, 2022 by Laws of 2022, Ch 798, §4, effective March 29, 2023 to read as follows:

  

     § 13-b. Time within which marriage may be solemnized. A marriage shall

   not  be  solemnized  within  twenty-four hours after the issuance of the

   marriage license, unless authorized by an order of a court of record  as

   hereinafter  provided,  nor shall it be solemnized after sixty days from

   the date of the issuance  of  the  marriage  license  unless  authorized

   pursuant  to  section  three  hundred fifty-four-d of the executive law.

   Every license to marry hereafter issued by a  town  or  city  clerk,  in

   addition to other requirements specified by this chapter, must contain a

   statement  of  the day and the hour the license is issued and the period

   during which the marriage may be solemnized. It shall be the duty of the

   clergyman [or], magistrate, or one-day marriage officiant, as designated

   by  the  secretary  of state pursuant to section one hundred ten of  the

   executive  law,  performing the marriage ceremony, or if the marriage is

   solemnized by written contract, of the judge before whom the contract is

   acknowledged, to annex to or endorse upon the marriage license the  date

   and  hour  the marriage is solemnized. A judge or justice of the supreme

   court of this state or the county judge of the county  in  which  either

   party  to  be  married resides, or the judge of the family court of such

   county, if it shall appear from an examination of the  license  and  any

   other  proofs  submitted  by  the  parties that one of the parties is in

   danger of imminent death, or by reason of other emergency public  inter-

   est  will  be promoted thereby, or that such delay will work irreparable

   injury or great hardship upon the contracting parties, or one  of  them,

   may,  make  an  order  authorizing  the  immediate  solemnization of the

   marriage and upon filing such order with the clergyman [or], magistrate,

   or one-day marriage officiant performing the marriage  ceremony,  or  if

   the  marriage  is  to  be solemnized by written contract, with the judge

   before whom the contract is acknowledged, such  clergyman  [or],  magis-

   trate or one-day marriage officiant may solemnize such marriage, or such

   judge  may  take such acknowledgment as the case may be, without waiting

   for such three day period and twenty-four hour  period  to  elapse.  The

   clergyman,  magistrate  [or],  judge,  or one-day marriage officiant, as

   designated by the secretary of state pursuant to section one hundred ten

   of  the  executive law, must file such order with the town or city clerk

   who issued the license within five days after  the  marriage  is  solem-

   nized.  Such  town  or city clerk must record and index the order in the

   book required to be kept by him or her for recording affidavits,  state-

   ments,  consents  and  licenses,  and  when  so recorded the order shall

   become a public record and  available  in  any  prosecution  under  this

   section.  A  person  who shall solemnize a marriage in violation of this

   section shall be guilty of a misdemeanor  and  upon  conviction  thereof

   shall  be  punished  by a fine of fifty dollars for each offense, and in

   addition thereto, his or her right to  solemnize  a  marriage  shall  be

   suspended for ninety days.

Matter in italics is new; matter in brackets [ ] is old law to be omitted.

Executive Law  was amended on December 28, 2022 by Laws of 2022, Ch 798, §5, effective March 29, 2023 to add a new section 110 to read as follows:

  

     § 110. Designation of one-day marriage officiant.   The secretary,  or

   his or her designee, shall issue one-day marriage officiant designations

   to laypersons over the age of eighteen regardless of state residence who

   intend  to  perform  a marriage solemnization ceremony within the state.

   Such designations shall only be  issued  after  an  applicant  remits  a

   completed  application form and fee, both to be determined by the secre-

   tary. The application form shall require the following  information  and

   be  accompanied  by  legal  proof  of identification. From the applicant

   requesting designation: applicant name, date of  birth,  legal  address,

   email  address  and  telephone number.   The application form shall also

   require the names, addresses and  birth  dates  of  the  parties  to  be

   married  as they appear on the application for a marriage license issued

   by a town or city clerk in the state, the name  of  the  city,  town  or

   village in which such solemnization will be performed and the exact date

   of  the  solemnization.  The application and fee must be received by the

   department at least thirty days before the date  of  the  ceremony.  The

   department shall notify the applicant of approval of such designation no

   later  than seven days prior to the date of the marriage ceremony stated

   on the application. Such designations shall only be valid for the  cere-

   mony  stated on the application and shall expire upon completion of such

   solemnization.

     

Matter in italics is new; matter in brackets [ ] is old law to be omitted.

Domestic Relations Law and the Social Services Law Amendments

The Domestic Relations Law and the Social Services Law were  amended effective December30, 2022 to give full parental rights in adoption, surrender,  and termination of parental rights  proceedings   to fathers of children in foster care who have been adjudicated or are in the process of being adjudicated a parent, have executed an unrevoked acknowledgement of parentage, or have filed an unrevoked notice of intent to claim parentage.  

Adoption

The requirement of notice of adoption proceedings to fathers of children in foster care who do not have full parental rights has been rescinded and relevant provisions of the Social Services Law and the Domestic Relations Law have been modified to make them consistent with the modifications. 

   

In New York an adoption may take place in either of two ways. An adoption may be by means of a private transaction between individuals, which is referred to as a “private-placement” adoption.   In a private placement adoption, the biological parents have voluntarily given up their parental rights and have placed the child with the agency for adoption. The adoption agency will place the child with prospective adoptive parents. 

In New York an adoption may also be arranged between an agency set up for the care, custody, and placement of children and prospective adoptive parents, which is referred to as an “authorized agency adoption.”    “Authorized  agency adoptions are adoptions of children who are already in the care of the state through a foster care agency or a private adoption agency.  In a foster care adoption, when a child is in the care of the state and living with foster parents, the agency  will usually file a petition to terminate the parental rights  of the child's parents so that the child can be adopted. In authorized-agency adoptions, all preliminary procedures up to the petition for adoption are governed by the Social Services Law.    Any adoption that is not an agency adoption is a private placement adoption

Consent to an adoption in an  agency adoption,

In an agency adoption, the foster care agency or the private adoption agency consents to the adoption of the child in its care and guardianship.  If the child is 14 years old or older, the child must also consent to the adoption.  

Under the Domestic Relations Law, in cases of " agency adoptions, only certain fathers have the right to consent to or prevent the adoption of their child. 

The only fathers who have "consent" rights if the child was placed for adoption at over six months of age are:

(1) those fathers who were married to the child's mother at the time of the child's birth;   

(2) those fathers of a child born out of wedlock who have maintained substantial and continuous or repeated contact with the child as manifested by: 

(i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either 

(ii) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or 

(iii) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child.   

(3) Those fathers of  a child born out-of-wedlock, who openly lived with the child for a period of 6 months within the 1 year period immediately preceding the placement of the child for adoption and who during that period openly held himself out to be the father of the child.   

Laws of 2022, Ch 798 broadens the definition of "consent" fathers in cases of agency  adoptions, so that fathers who have been legally adjudicated to be the parent of the child or have timely executed a formal acknowledgment of parentage have full parental rights. 

This law does not affect "private-placement" adoptions. It applies only to adoptions that occur after a child has been involuntarily separated from their family by the state, and the state seeks to sever the parent-child relationship for an unmarried  father. The state will still be able to terminate such an unmarried father's parental rights in appropriate cases on the grounds of abandonment, permanent neglect, mental illness, intellectual disability, and severe and repeated abuse, just as it would in the case of a mother or married father who failed to meet those obligations. The local child protective agencies will similarly still have the ability to seek child support from the parents of children in foster care, if they choose to do so. This legislation simply alters the potential consequence of an unmarried father's failure to comply with his  obligation to pay support to a third party agency, so that his continued relation-ship to his child does not hinge on such payment alone. 

Domestic Relations Law, §111, subd. 1 (d), (e), and (f) were amended by Laws of 2022, Ch 828, §1, effective December 30, 2022 to read as follows:

                      (d)  Of any person or authorized agency having lawful custody or guar-

     7  dianship of the adoptive child;

     8    (e) In the case of the adoption of a child transferred to the  custody

     9  and  guardianship  of  an  authorized agency, foster parent, or relative

    10  pursuant to section three hundred eighty-four-b of the  social  services

    11  law or a child transferred to the custody and guardianship of an author-

    12  ized  agency  pursuant  to  section  three hundred eighty-three-c of the

    13  social services law:

    14    (i) Of any person adjudicated by a court of this state or a  court  of

    15  any  other  state  or territory of the United States to be the father of

    16  the child prior to the filing of a petition to terminate parental rights

    17  to the child pursuant to section  three  hundred  eighty-four-b  of  the

    18  social  services  law, an application to execute a judicial surrender of

    19  rights to the child pursuant  to  subdivision  three  of  section  three

    20  hundred eighty-three-c of the social services law, or an application for

    21  approval  of an extra-judicial surrender pursuant to subdivision four of

    22  section three hundred eighty-three-c of the social services law;

      1    (ii) Of any person who filed a petition in a court in this state seek-

     2  ing to be adjudicated the father of the child prior to the filing  of  a

     3  petition  to  terminate parental rights to the child pursuant to section

     4  three hundred eighty-four-b of the social services law,  an  application

     5  to  execute  a  judicial  surrender  of  rights to the child pursuant to

     6  subdivision three of section three hundred eighty-three-c of the  social

     7  services  law,  or  an  application  for  approval  of an extra-judicial

     8  surrender pursuant to subdivision four of section three hundred  eighty-

     9  three-c of the social services law, provided that the parentage petition

    10  has  been  resolved  in the petitioner's favor or remains pending at the

    11  conclusion of the proceedings pursuant to section three hundred  eighty-

    12  four-b,  three  hundred  eighty-three-c, or three hundred eighty-four of

    13  the social services law;

    14    (iii) Of any person who has executed an  acknowledgment  of  parentage

    15  pursuant  to  section  one  hundred eleven-k of the social services law,

    16  section five hundred sixteen-a of  the  family  court  act,  or  section

    17  forty-one  hundred  thirty-five-b  of the public health law prior to the

    18  filing of a petition to terminate parental rights to the child  pursuant

    19  to  section  three  hundred eighty-four-b of the social services law, an

    20  application to execute a judicial  surrender  of  rights  to  the  child

    21  pursuant to subdivision three of section three hundred eighty-three-c of

    22  the  social services law, or an application for approval of an extra-ju-

    23  dicial surrender pursuant to subdivision four of section  three  hundred

    24  eighty-three-c  of  the social services law, provided that such acknowl-

    25  edgement has not been vacated;

    26    (iv) Of any person who filed an unrevoked notice of  intent  to  claim

    27  parentage  of  the child pursuant to section three hundred seventy-two-c

    28  of the social services law prior to the filing of a petition  to  termi-

    29  nate  parental  rights  to  the  child pursuant to section three hundred

    30  eighty-four-b of the social services law, an application  to  execute  a

    31  judicial  surrender of rights to the child pursuant to subdivision three

    32  of section three hundred eighty-three-c of the social services  law,  or

    33  an  application  for approval of an extra-judicial surrender pursuant to

    34  subdivision four of section three hundred eighty-three-c of  the  social

    35  services law;

    36    (f) In any other adoption proceeding:

    37    (i)  Of  the  father, whether adult or infant, of a child born out-of-

    38  wedlock and placed with the adoptive parents more than six months  after

    39  birth,  but  only  if  such father shall have maintained substantial and

    40  continuous or repeated contact with the child as manifested by:    [(i)]

    41  (A)  the payment by the father toward the support of the child of a fair

    42  and reasonable sum, according to the father's means, and  either  [(ii)]

    43  (B) the father's visiting the child at least monthly when physically and

    44  financially  able to do so and not prevented from doing so by the person

    45  or authorized agency having lawful custody of the child, or [(iii)]  (C)

    46  the  father's regular communication with the child or with the person or

    47  agency having the care or custody of  the  child,  when  physically  and

    48  financially  unable to visit the child or prevented from doing so by the

    49  person or authorized agency having lawful  custody  of  the  child.  The

    50  subjective  intent of the father, whether expressed or otherwise, unsup-

    51  ported by evidence of acts specified in this paragraph manifesting  such

    52  intent,  shall  not  preclude  a determination that the father failed to

    53  maintain substantial and continuous or repeated contact with the  child.

    54  In making such a determination, the court shall not require a showing of

    55  diligent  efforts  by  any  person  or agency to encourage the father to

    56  perform the acts specified in this paragraph. A father, whether adult or

     1  infant, of a child born out-of-wedlock, who openly lived with the  child

     2  for  a  period  of  six  months  within  the one year period immediately

     3  preceding the placement of the child for adoption and  who  during  such

     4  period  openly  held himself out to be the father of such child shall be

     5  deemed to have maintained substantial and continuous  contact  with  the

     6  child for the purpose of this subdivision[.];

     7    [(e)]  (ii)  Of  the  father, whether adult or infant, of a child born

     8  out-of-wedlock who is under the age of six months  at  the  time  he  is

     9  placed  for  adoption,  but  only if: [(i)] (A) such father openly lived

    10  with the child or the child's mother for  a  continuous  period  of  six

    11  months  immediately  preceding  the placement of the child for adoption;

    12  and [(ii)] (B) such father openly held himself out to be the  father  of

    13  such  child  during such period; and [(iii)] (C) such father paid a fair

    14  and reasonable sum, in accordance  with  his  means,  for  the  medical,

    15  hospital  and  nursing expenses incurred in connection with the mother's

    16  pregnancy or with the birth of the child.

    17    [(f) Of any person or authorized agency having lawful custody  of  the

    18  adoptive child.]

Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted.

                                                                   

Domestic Relations Law, §111-a, subd. 1 was amended by Laws of 2022, Ch 828, §2, effective December 30, 2022 to read as follows:

    22    1.  Notwithstanding  any  inconsistent provisions of this or any other

    23  law, and in addition to the notice requirements of any law pertaining to

    24  persons other than those specified in subdivision two of  this  section,

    25  notice  as  provided  herein  shall be given to the persons specified in

    26  subdivision two of this section of  any  adoption  proceeding  initiated

    27  pursuant  to  this  article  or  of any proceeding initiated pursuant to

    28  section one hundred fifteen-b of this article relating to the revocation

    29  of an adoption consent, when such proceeding involves a child born  out-

    30  of-wedlock  provided, however, that such notice shall not be required to

    31  be given [to any person who previously has  been  given  notice  of  any

    32  proceeding involving the child, pursuant to section three hundred eight-

    33  y-four-c of the social services law, and provided further that notice in

    34  an  adoption  proceeding, pursuant to this section shall not be required

    35  to be given]: (a) in the case of the adoption of a child transferred  to

    36  the  custody and guardianship of an authorized agency, foster parent, or

    37  relative pursuant to section three hundred eighty-four-b of  the  social

    38  services  law  or a child transferred to the custody and guardianship of

    39  an authorized agency pursuant to section three hundred eighty-three-c of

    40  the social services law;  or  (b)  to  any  person  who  has  previously

    41  received  notice  of  any  proceeding  pursuant  to  section one hundred

    42  fifteen-b of this article. In addition to such other requirements as may

    43  be applicable to the petition in any proceeding in which notice must  be

    44  given  pursuant  to this section, the petition shall set forth the names

    45  and last known addresses of all persons required to be given  notice  of

    46  the  proceeding,  pursuant  to this section, and there shall be shown by

    47  the petition or by affidavit or other proof satisfactory  to  the  court

    48  that there are no persons other than those set forth in the petition who

    49  are  entitled to notice. For the purpose of determining persons entitled

    50  to notice of adoption proceedings initiated pursuant  to  this  article,

    51  persons  specified  in subdivision two of this section shall not include

    52  any person who has been convicted of one or more of the following sexual

    53  offenses in this state or convicted of one or more offenses  in  another

    54  jurisdiction  which, if committed in this state, would constitute one or

    55  more of the following offenses, when the child who is the subject of the

    56  proceeding was conceived as a  result:  (A)  rape  in  first  or  second

     1  degree;  (B)  course  of  sexual  conduct  against  a child in the first

     2  degree; (C) predatory sexual assault; or (D)  predatory  sexual  assault

     3  against a child.

Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted.

                                                                   

Social Services Law §383-c, subd. 4, (b) was amended by Laws of 2022, Ch 828, §3, effective December 30, 2022 to read as follows:

  

 

     7    (b)  Before  a  judge  or surrogate approves a judicial surrender, the

     8  judge or surrogate [shall]  may  order  that  notice  of  the  surrender

     9  proceeding be given to [persons identified in subdivision two of section

    10  three  hundred  eighty-four-c of this title and to] such [other] persons

    11  as the judge or surrogate may, in his or her discretion,  prescribe.  At

    12  the  time  that  a parent appears before a judge or surrogate to execute

    13  and acknowledge a surrender, the judge or surrogate  shall  inform  such

    14  parent  of  the right to be represented by legal counsel of the parent's

    15  own choosing and of the right to obtain supportive counseling and of any

    16  right to have counsel assigned pursuant to section two hundred sixty-two

    17  of the family court act, section four hundred seven of  the  surrogate's

    18  court  procedure  act,  or section thirty-five of the judiciary law. The

    19  judge or surrogate also shall inform the parent of the  consequences  of

    20  such  surrender,  including  informing  such  parent  that the parent is

    21  giving up all rights to have custody, visit with, speak with,  write  to

    22  or  learn  about  the  child, forever, unless the parties have agreed to

    23  different terms pursuant to subdivision two of this section, or, if  the

    24  parent registers with the adoption information register, as specified in

    25  section  forty-one hundred thirty-eight-d of the public health law, that

    26  the parent may be contacted at any time after the child reaches the  age

    27  of  eighteen  years,  but only if both the parent and the adult child so

    28  choose. The court shall  determine  whether  the  terms  and  conditions

    29  agreed to by the parties pursuant to subdivision two of this section are

    30  in  the child's best interests before approving the surrender. The judge

    31  or surrogate shall inform the parent that where a  surrender  containing

    32  conditions  has  been  executed,  the parent is obligated to provide the

    33  authorized agency with a designated mailing  address,  as  well  as  any

    34  subsequent  changes  in  such  address,  at which the parent may receive

    35  notices regarding any  substantial  failure  of  a  material  condition,

    36  unless  such  notification is expressly waived by a statement written by

    37  the parent and appended to or included in such instrument. The judge  or

    38  surrogate  also  shall inform the parent that the surrender shall become

    39  final and irrevocable immediately upon its execution and acknowledgment.

    40  The judge or surrogate shall give the parent a copy  of  such  surrender

    41  upon the execution thereof.

Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted.

                                                                   

Social Services Law §383-c, subd. 4 (d) was amended by Laws of 2022, Ch 828, §4, effective December 30, 2022 to read as follows:

    45    (d)  Before a judge or surrogate approves an extra-judicial surrender,

    46  the judge or surrogate shall order notice to be given to the person  who

    47  executed  the  surrender[,  to  persons identified in subdivision two of

    48  section three hundred eighty-four-c of this title]  and  to  such  other

    49  persons  as  the  judge  or  surrogate  may,  in  his or her discretion,

    50  prescribe. [The petition shall  set  forth  the  names  and  last  known

    51  addresses  of all persons required to be given notice of the proceeding,

    52  pursuant to section three hundred  eighty-four-c,  and  there  shall  be

    53  shown by the petition or by affidavit or other proof satisfactory to the

    54  court  that there are no persons other than those set forth in the peti-

    55  tion who are entitled to notice pursuant to such section.] No person who

    56  has received such notice and been afforded an opportunity  to  be  heard

     1  may  challenge  the  validity  of  a surrender approved pursuant to this

     2  subdivision in any other proceeding. Nothing in this  section  shall  be

     3  deemed  to  dispense  with the consent to adopt if otherwise required of

     4  any person who has not executed the surrender.

Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted

Social Services Law §383-c, subd. 5 (h) was amended by Laws of 2022, Ch 828, §5, effective December 30, 2022 to read as follows:

    

     9    (h) Upon execution of a surrender instrument, the parent executing the

    10  surrender  shall  provide  information to the extent known regarding the

    11  other parent, any person  to  whom  the  surrendering  parent  had  been

    12  married  at  the  time  of  the conception or birth of the child and any

    13  other person who would be entitled to [notice of a proceeding to  termi-

    14  nate  parental rights pursuant to section three hundred eighty-four-c of

    15  this title] consent to the adoption of the child pursuant to subdivision

    16  one of section one hundred eleven of the domestic relations law.    Such

    17  information  shall  include,  but  not  be  limited to, such parent's or

    18  person's name, last-known address, social  security  number,  employer's

    19  address  and any other identifying information. Any information provided

    20  pursuant to this paragraph shall be recorded in the uniform case  record

    21  maintained  pursuant  to  section  four  hundred nine-f of this article;

    22  provided, however, that the failure to provide  such  information  shall

    23  not invalidate the surrender.

Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted

Social Services Law §384, subd. 8 was amended by Laws of 2022, Ch 828, §6, effective December 30, 2022 to read as follows:

    27    8. Upon execution of a surrender instrument, the parent executing  the

    28  surrender  shall  provide  information to the extent known regarding the

    29  other parent, any person  to  whom  the  surrendering  parent  had  been

    30  married  at  the  time  of  the conception or birth of the child and any

    31  other person [who would be entitled to notice of a proceeding to  termi-

    32  nate  parental  rights pursuant to] listed in subdivision two of section

    33  three hundred  eighty-four-c  of  this  title.  Such  information  shall

    34  include,  but  not  be limited to, such parent's or person's name, last-

    35  known address, social security number, employer's address and any  other

    36  identifying  information.  Any  information  provided  pursuant  to this

    37  subdivision shall be recorded in  the  uniform  case  record  maintained

    38  pursuant  to  section  four  hundred  nine-f  of this article; provided,

    39  however, that the failure to provide such information shall not  invali-

    40  date the surrender.

Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted

Social Services Law §384-a, subd. 1-b was amended by Laws of 2022, Ch 828, §7, effective December 30, 2022 to read as follows:

    44    1-b.  Upon  accepting the transfer of care and custody of a child from

    45  the parent, guardian or other person to whom care of the child has  been

    46  entrusted,  a local social services official shall obtain information to

    47  the extent known from such person regarding the other parent, any person

    48  to whom the parent transferring care and custody had been married at the

    49  time of the conception or birth of the child, any person  who  would  be

    50  entitled to consent to the adoption of the child pursuant to subdivision

    51  one of section one hundred eleven of the domestic relations law, and any

    52  other  person [who would be entitled to notice of a proceeding to termi-

    53  nate parental rights pursuant to] listed in subdivision two  of  section

    54  three  hundred  eighty-four-c  of  this  title.  Such  information shall

    55  include, but not be limited to, such parent's or  person's  name,  last-

    56  known  address, social security number, employer's address and any other

     1  identifying information.  Any  information  provided  pursuant  to  this

     2  subdivision  shall  be  recorded  in  the uniform case record maintained

     3  pursuant to section four  hundred  nine-f  of  this  article;  provided,

     4  however,  that the failure to provide such information shall not invali-

     5  date the transfer of care and custody.

Social Services Law §384-b, subd. 3 was amended by Laws of 2022, Ch 828, §8, effective December 30, 2022 to read as follows:

     9    (e) A proceeding under this section is originated  by  a  petition  on

    10  notice  served  upon the child's parent or parents, the attorney for the

    11  child's parent or parents and upon such other persons as the  court  may

    12  in  its  discretion  prescribe. Such notice shall inform the parents and

    13  such other persons that the proceeding may result in  an  order  freeing

    14  the  child  for adoption without the consent of or notice to the parents

    15  or such other persons. Such notice also shall  inform  the  parents  and

    16  such  other persons of their right to the assistance of counsel, includ-

    17  ing any right they may have to have counsel assigned by the court in any

    18  case where they are financially unable to obtain counsel. [The  petition

    19  shall  set  forth  the  names  and  last  known addresses of all persons

    20  required to be given notice of the proceeding, pursuant to this  section

    21  and  section  three hundred eighty-four-c of this title, and there shall

    22  be shown by the petition or by affidavit or other proof satisfactory  to

    23  the  court  that  there are no persons other than those set forth in the

    24  petition who are entitled to notice pursuant to the provisions  of  this

    25  section  or  of section three hundred eighty-four-c of this title.] When

    26  the proceeding is initiated in family court service of the petition  and

    27  other process shall be made in accordance with the provisions of section

    28  six  hundred  seventeen of the family court act, and when the proceeding

    29  is initiated in surrogate's court, service shall be made  in  accordance

    30  with  the  provisions  of section three hundred seven of the surrogate's

    31  court procedure act. When the proceeding is initiated on the grounds  of

    32  abandonment  of  a  child  less  than one year of age at the time of the

    33  transfer of the care and  custody  of  such  child  to  a  local  social

    34  services  official,  the  court shall take judicial notice of efforts to

    35  locate the child's parents or other known  relatives  or  other  persons

    36  legally  responsible  pursuant  to  paragraph (ii) of subdivision (b) of

    37  section one thousand fifty-five of the family court act.

Social Services Law §384-a, subd. 12 was repealed by Laws of 2022, Ch 828, §9, effective December 30, 2022. It formerly provided:

12. If the court determines to commit the custody and guardianship of the child pursuant to this section, or if the court determines to suspend judgement pursuant to section six hundred thirty-three of the family court act, the court in its order shall determine if there is any parent to whom notice of an adoption would be required pursuant to section one hundred eleven-a of the domestic relations law. In its order the court shall indicate whether such person or persons were given notice of the proceeding and whether such person or persons appeared. Such determinations shall be conclusive in all subsequent proceedings relating to the custody, guardianship or adoption of the child.

Social Services Law §384-c, subd. 1 was amended by Laws of 2022, Ch 828, §10, effective December 30, 2022 to read as follows:

    43    1.  Notwithstanding  any  inconsistent  provision of this or any other

    44  law, and in addition to the notice requirements of any law pertaining to

    45  persons other than those specified in subdivision two of  this  section,

    46  notice  as  provided  herein  shall be given to the persons specified in

    47  subdivision two of this section of any proceeding initiated pursuant  to

    48  sections  three hundred fifty-eight-a[,] and three hundred eighty-four[,

    49  and three hundred eighty-four-b] of this [chapter]  title,  involving  a

    50  child  born out-of-wedlock. Persons specified in subdivision two of this

    51  section shall not include any person who has been convicted  of  one  or

    52  more  of the following sexual offenses in this state or convicted of one

    53  or more offenses in another jurisdiction which,  if  committed  in  this

    54  state,  would constitute one or more of the following offenses, when the

    55  child who is the subject of the proceeding was conceived  as  a  result:

    56  [(A)]  (a)  rape  in  first or second degree; [(B)] (b) course of sexual

     1  conduct against a child in the first degree; [(C)] (c) predatory  sexual

     2  assault; or [(D)] (d) predatory sexual assault against a child.

Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted

Social Services Law §384-c, subd. 3 was amended by Laws of 2022, Ch 828, §11, effective December 30, 2022 to read as follows:

     6    3.  The provisions of this section shall not apply to persons entitled

     7  to notice pursuant  to  section  one  hundred  eleven  of  the  domestic

     8  relations law. The sole purpose of notice under this section shall be to

     9  enable  the person served pursuant to subdivision two of this section to

    10  present evidence to the court relevant to  the  best  interests  of  the

    11  child. [In any proceeding brought upon the ground specified in paragraph

    12  (d) of subdivision four of section three hundred eighty-four-b, a person

    13  served  pursuant to this section may appear and present evidence only in

    14  the dispositional hearing.]

Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted

Social Services Law §384-c, subd. 7 was amended by Laws of 2022, Ch 828, §12, effective December 30, 2022 to read as follows:

    17    7.  No  order of the court in any proceeding pursuant to section three

    18  hundred fifty-eight-a[,] or three hundred eighty-four [or three  hundred

    19  eighty-four-b]  of  this [chapter] title or in any subsequent proceeding

    20  involving  the  child's  custody,  guardianship  or  adoption  shall  be

    21  vacated, annulled or reversed upon the application of any person who was

    22  properly  served  with notice in accordance with this section but failed

    23  to appear, or who waived notice pursuant to  subdivision  five  of  this

    24  section.    Nor shall any order of the court in any proceeding involving

    26  reversed upon the application of any person who was properly served with

    27  notice  in  accordance  with  this section in any previous proceeding in

    28  which the court determined  that  the  transfer  or  commitment  of  the

    29  child's care, custody or guardianship to an authorized agency was in the

    30  child's best interests.

Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted

December 28, 2022

Appellate Division, Second Department

Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce where the amendment proposed by the defendant was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).

In Ferrigan v Ferrigan, --- N.Y.S.3d ----, 2022 WL 17660436, 2022 N.Y. Slip Op. 07058 (2d Dept.,2022) the parties were married in March 1996. Their judgment of divorced entered August 12, 2003 included a stipulation of settlement dated February 27, 2003 which was incorporated but not merged into the judgment. In August 2018, the defendant moved, inter alia, pursuant to CPLR 5019(a) to resettle the judgment of divorce on the ground that a provision in the judgment of divorce requiring him to provide health insurance for the parties’ children was inconsistent with the provision in the stipulation which provided that the plaintiff would provide health insurance for the children through her employer, but if she were unemployed, the defendant would do so through his employer. In an order dated April 1, 2019, the Supreme Court, inter alia, granted the defendant’s motion so as to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to provide health insurance for the parties’ children..

 

The Appellate Division modified. It held that the defense of laches is not a basis to preclude the resettlement of the judgment of divorce as the plaintiff failed to show that she was prejudiced by the defendant’s delay in seeking to correct the error. Since the plaintiff failed to show a change in circumstances making it inequitable to grant the requested relief, t]he mere lapse of time without a showing of prejudice will not sustain a defense of laches. Resettlement of a judgment of divorce pursuant to CPLR 5019(a) is an appropriate remedy when the judgment does not accurately incorporate the terms of a stipulation of settlement. Although the judgment of divorce provided that the defendant was responsible for providing health insurance for the parties’ children, that provision was inconsistent with the terms of the stipulation which contained a provision which set forth that the plaintiff was responsible for providing health insurance for the parties’ children through her employer unless she became unemployed, and then the defendant would be responsible for providing health insurance for them through his employer. Supreme Court properly granted defendant’s motion to resettle the judgment of divorce to the extent that it was inconsistent with the stipulation. However, the Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce to the extent it sought to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to be solely responsible to provide health insurance for the parties’ children. The amendment proposed by the defendant failed to comport with the terms of the stipulation regarding the responsibility of the parties as to the health insurance for their children and was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).

Appellate Division, Third Department

Argument that his change in residence constituted a change in circumstances was unpreserved for appellate review  “absent a motion to conform the pleadings to the proof” 

In Matter of Anthony JJ, v Angelin JJ, --- N.Y.S.3d ----, 2022 WL 17835304 (3d Dept.,2022) Family Court dismissed the father’s custody modification petition, finding that the father had failed to demonstrate a change in circumstances warranting a best interests analysis. The Appellate Division affirmed. It held that the required change in circumstances may be found to exist where the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the children. Here, the record as a whole reflected a level of hostility and mutual distrust between the parties that demonstrated that the parties were incapable of working together in a cooperative fashion for the good of their children. However, as Family Court found, this hostility and failure to cooperate existed at the time of the prior order – serving as the basis, at least in part, for awarding the mother sole legal and primary physical custody of the children, and was therefore not a new development. The father’s argument that his change in residence constituted a change in circumstances was unpreserved for appellate review  “absent a motion to conform the pleadings to the proof” before Family Court.

 

Condition in dispositional neglect order requiring Respondent to “maintain and provide documentation of legal income source(s) sufficient to support the child” did not violate her constitutional rights where Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way

In Matter of  Y. SS.,--- N.Y.S.3d ----, 2022 WL 17835259(3d Dept.,2022) after a hearing Family Court issued a decision finding the subject child to be a neglected child. A dispositional hearing was held, after which Family Court issued a dispositional order indicating that respondent has yet to achieve any insight that she engaged in any wrongful and neglectful behavior and ordering that the subject child remain in petitioner’s custody. The Appellate Division affirmed.  It was established that respondent had a friend with whom she sometimes performed sexual services for money. At some point, in text messages, the friend began asking for things involving the subject child. Respondent testified that she “knew he wanted something with my daughter, but he wasn’t getting it.” On one occasion, respondent sent a naked photograph of the subject child to the friend. On another occasion, during a telephone call with the friend, respondent offered to perform oral sex on him while allowing him to look at the subject child naked while she slept. In text messages, respondent provided her address to the friend. The Appellate Division held that the willingness of respondent to involve the subject child in the performance of her sexual services for money put the subject child’s physical, emotional and mental health in imminent danger and we cannot say that “a reasonable and prudent parent [would] have so acted ... under the circumstances” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]). Although respondent testified that she took the photograph to send to the child’s doctor, Family Court found respondent’s testimony incredible. Family Court properly adjudicated the subject child to be neglected. The Appellate Division rejected Respondents argument  that some of the conditions of Family Court’s dispositional order were unconstitutional. Respondent challenged the condition that she “maintain and provide documentation of legal income source(s) sufficient to support the child.” Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way. It was unclear how this condition, which encouraged her not to engage in prostitution as a means of income, violated her constitutional rights. Respondent also challenged the condition that she “acknowledge and demonstrate an understanding of her role in the neglect of the subject child ..., specifically how her prostitution and involvement of [the subject child] in that prostitution as sexual bait for a pedophile harmed [the subject child] and placed [her] at risk of further harm.” Contrary to respondent’s argument, this condition did not require her to admit to a finding of neglect, but rather that she recognize and understand how involving the subject child in her prostitution put the child at risk. A demonstration of understanding would decrease the chance of such behavior recurring. It did not find that this condition implicated respondent’s right to due process of law.

Appellate Division, Fourth Department 

Although the burden of proof in a Neglect proceeding rests with the petitioner, once the petitioner has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability.

In Matter of Mea V, 210 A.D.3d 1408 (4th Dept, 2022) a neglect proceeding, the Appellate Division observed that a prima facie case of child abuse or neglect may be established by evidence that a child sustained an injury that would ordinarily not occur absent an act or omission of respondents and that respondents were the caretakers of the child at the time the injury occurred (Family Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40 [1993]). Although the burden of proof rests with the petitioner, once the petitioner “has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability. To rebut the presumption of parental culpability, the respondents may present evidence to (1) establish that during the time period when the child was injured, the child was not in respondents care; (2) demonstrate that the injury or condition could reasonably have occurred accidentally, without the acts or omission of respondents; or (3) counter the evidence that the child had the condition which was the basis for the finding of injury . In determining whether to rely on the presumption, the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretakers explanation in light of all the circumstances. The Appellate Division rejected respondents contention that, inter alia,  they rebutted the presumption of parental culpability by providing a reasonable explanation for how the child’s injuries could have occurred without any act or omission on their part. Respondents originally claimed to the pediatrician and the Child Protective Services caseworker that the child’s injuries, which included 28 rib fractures and an injured lung, were accidental, but none of the medical evidence supported that claim. It concluded that Family Court properly rejected respondents’ subsequent claim at trial that the injuries were due to an underlying medical condition: the testimony of respondents’ expert witnesses was incredible and their conclusions were not consistent with the other evidence.

 

Family Court

 

Where, no other State could properly assume custody jurisdiction it was appropriate for New York to assume “vacuum jurisdiction” 

In Olaide O v Oluseun O, 2022 WL 17727139 (unreported disposition) (Fam Ct, 2022) the child F. had resided in Nigeria with relatives  for his entire life. During the custody hearing, Ms. O., who resided in New York  testified that she and her husband had resided in Nigeria and that Mr. O. left Nigeria in 2016 with the intention that she and the children would follow as soon as possible. Based on testimony presented at the hearing, the Court found that Ms. O. never consented to the child’s permanent residence in Nigeria, that the relatives caring for the child in Nigeria were not persons acting as a parent and that it was the intention of both parties to bring the child to the United States. Therefore, the Court held that: “Here, no other State can properly assume jurisdiction. Nor can jurisdiction properly lie in Nigeria when both parents, who have a superior right to custody, reside in New York. Additionally, the Children who reside here in NY have rights to visit with their sibling that cannot be effectuated without the court assuming jurisdiction. Therefore, it was appropriate for New York to assume “vacuum jurisdiction” in this case. Nusrat C. v. Muhammed R., 67 AD3d 419 (1st Dept 2009) (finding that subject matter jurisdiction existed under both DRL § 70 (a) and DRL 76(1)(d) even though the child lived abroad, because both parents lived in the state and were personally before the court). Pursuant to DRL 76(1)(d), this Court has jurisdiction over the child F. O.”

 

Domestic Relations Law § 240, subd.1 (a-3)

         Laws of 2022, Chapter 740, § 1 enacted on December 23, 2022  amended Domestic Relations Law § 240 Subdivision 1 by adding a new paragraph (a-3), effective as provided in § 4 on the 180th day after it  shall have become a law (June 25, 2023).  It provides as follows:

         (a-3)  Court  ordered forensic evaluations involving child custody and

       visitation. (1) The court may appoint a forensic evaluator on behalf  of

       the  court  to evaluate and investigate the parties and a child or chil-

       dren in a proceeding involving child  custody  and  visitation  provided

       that  the  child  custody  forensic  evaluator is a psychologist, social

       worker or psychiatrist who is licensed in the state of New York and  has

       received  within  the  last two years, a certification of completion for

       completing the training program pursuant to paragraph (o) of subdivision

       three of section five hundred seventy-five of the executive law.

        (2) Notwithstanding any provision of law to the contrary, no  individ-

       ual  shall be appointed by a court to conduct a forensic evaluation in a

       proceeding involving child custody and visitation pursuant to this para-

       graph unless such individual has received within the last two  years,  a

       certification of completion for completing the training program pursuant

       to  paragraph  (o) of subdivision three of section five hundred seventy-

       five of the executive law.

 

         (3)   A psychologist, social  worker  or  psychiatrist  authorized  to

       conduct  court  ordered  child  custody forensic evaluations pursuant to

       this section shall notify the court in which such individual requests to

       be considered for such court ordered  evaluations.    Any  psychologist,

       social  worker  or  psychiatrist who no longer meets the requirements of

       this section in regards to completing within  the  last  two  years  the

       training  program  pursuant  to  paragraph  (o)  of subdivision three of

       section five hundred seventy-five of the executive law  shall  be  obli-

       gated to inform such courts within seventy-two hours of noncompliance so

       as to be removed from consideration for court ordered evaluations.

        (4)  Upon  appointment,  the  court  shall  require such child custody

       forensic evaluator to show proof of certification for completing  within

       the  last  two  years  the training program pursuant to paragraph (o) of

       subdivision three of section five hundred seventy-five of the  executive

       law.