Recent Decisions and Legislation, February 16, 2025

  

February 16, 2025

 

Appellate Divison, First Department

Appellate Divison remanded for a new dispositional hearing under the authority of Matter of Michael B., based upon the advice of the child's attorney.

 

In Matter of M.V. --- N.Y.S.3d ----, 2025 WL 375812, 2025 N.Y. Slip Op. 00642 (1^st Dept., 2025) a neglect proceeding, the Appellate Division vacated the dispositional finding, and the matter was remanded for a new dispositional hearing with respect to M.V. due to changed circumstances (see Matter of Michael B., 80 N.Y.2d 299, 318 [1992]). Her attorney advised that she no longer resides in the same pre-adoptive foster home, was now 15 years old, and did not consent to being adopted (see Matter of Daleena Q.T. [Wanda W.], 211 AD3d 497, 499 [1st Dept 2022]).

 

Unless a court states otherwise a voluntary discontinuance is without prejudice

 

In Matter of J.M., --- N.Y.S.3d ----, 2025 WL 51894, 2025 N.Y. Slip Op. 00163

(1^st Dept., 20925) the Appellate Division held that unless a court states otherwise a voluntary discontinuance is without prejudice and within the court’s discretion (see CPLR 3217[b]; see also Matter of Reid v. Brown, 165 A.D.3d 949, 950, 86 N.Y.S.3d 215 [2d Dept. 2018]).

                                               

 

Appellate Division, Second Department

 

 

Default custody determination was made without a hearing and without making any specific findings of fact regarding the best interests of the child vacated. The Court's authority in no way diminishes the need to determine the best interests of the child.

 

In Matter of Riera v Ayabaca, --- N.Y.S.3d ----, 2025 WL 395851, 2025 N.Y. Slip Op. 00661 (2d Dept., 2025) the parties, inter alia, filed competing petitions seeking custody of the child. They made an initial appearance before the Family Court and the father failed to appear at the next scheduled court appearance. The court, without a hearing, inter alia, awarded sole legal and physical custody of the child to the mother, with supervised parental access to the father. It then denied the father's motion to vacate the custody order. The Appellate Division observed that the court’s authority to proceed by default in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests, upon consideration of the totality of the circumstances, after a full and comprehensive hearing and a careful analysis of all relevant factors. A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record. Here, the Family Court made a custody determination without a hearing and without making any specific findings of fact regarding the best interests of the child. Under the circumstances, the father’s motion to vacate the custody order should have been granted in the interest of justice. It remitted the matter to the Family Court for a hearing and a new determination.

 

 

Family Court may not place a nonrespondent custodial parent under the supervision of the Administration for Children’s Services (ACS) and the court, and direct the parent to cooperate with ACS in various ways, in circumstances where the respondent parent resides elsewhere and the child has not been removed from the nonrespondent parent’s home.

 

 

In Matter of Sapphire W.  --- N.Y.S.3d ----, 2025 WL 395816, 2025 N.Y. Slip Op. 00662 (2d Dept.,2025) the father and the mother were the parents of a child born in 2022. In August 2023, ACS commenced a neglect proceeding against the father, alleging that he neglected the child by committing acts of domestic violence against the mother at her home in the presence of the child. In the petition, ACS asserted that the mother had previously contacted the police concerning domestic violence perpetrated against her by the father and that the police returned to her home at a later date to conduct a wellness check. After the police left, the father, who was present in the home while the police were there, allegedly became physically and verbally aggressive with the mother, including calling her names, slapping her, and forcibly ripping out some of her hair. In response to the mother’s demand that he leave the home, the father allegedly urinated in a bathtub before departing. Shortly thereafter, the mother discussed the incident with a therapist, who reported it to ACS.  On the date ACS filed the petition, the Family Court held an initial conference. The mother, who was not named as a respondent, appeared at the conference, while the father did not. During the conference, ACS advised the court that the father “did not reside in the home” with the mother and the child, although he “would occasionally sort of show up.” ACS requested that the court issue a temporary order of protection in favor of the mother and the child and against the father, while also seeking the child’s “release[ ]” to the mother’s custody under ACS’s supervision. The attorney for the child objected to so much of ACS’s request as sought supervision of the mother, who, by counsel, joined in the objection. The court advised the mother that she was “not accused of anything” but nonetheless granted ACS’s request in full. By order dated August 31, 2023, the court, inter alia, placed the mother under the supervision of ACS and the court and directed the mother to cooperate with ACS in certain respects. Specifically, the court required the mother to “maintain[ ] contact with ACS, permit[ ] [ACS’s staff members] to make announced and unannounced visits to the home, and accept[ ] any reasonable referrals for services.” The mother appealed. The Appellate Division stated the issue of first impression in New York involving the rights of nonrespondent parents in child neglect proceedings, was whether the Family Court may place a nonrespondent custodial parent under the supervision of the Administration for Children’s Services (ACS) and the court, and direct the parent to cooperate with ACS in various ways, in circumstances where the respondent parent resides elsewhere and the child has not been removed from the nonrespondent parent’s home. Considering, inter alia, the well-established “interest of a parent in the companionship, care, custody, and management of his or her children” (Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551) and the lack of any statutory authority permitting the challenged directives, the Court answered this question in the negative and concluded that the Family Court improperly placed the mother under the supervision of ACS and the court, and directed her to cooperate with ACS in certain respects.

 

 

Although the petitioner was not biologically related to the child, SCPA 1703 applies to guardianship proceedings (Family Ct Act § 661) and provides that a petition for appointment of a guardian may be brought by “any person”.      

 

In Matter of Karma-Marie W. --- N.Y.S.3d ----, 2025 WL 45111, 2025 N.Y. Slip Op. 00104 (2d Dept., 2025) the petitioner filed a petition pursuant to Family Court Act article 6 to be appointed the guardian of the subject child. The petitioner was not related to the child. Family Court, without a hearing, sua sponte, determined that the petitioner lacked standing to bring the petition and dismissed the petition with prejudice. The Appellate Division reversed and remitted the matter to the Family Court for a hearing and determination. It held that the Family Court should not have dismissed the petition on the ground that the petitioner was not a relative of the child. Although the petitioner was not biologically related to the child, SCPA 1703, which applies to this proceeding (see Family Ct Act § 661), provides that a petition for the appointment of a guardian may be brought by “any person”. Nor was there any basis in the record to dismiss the petition with prejudice.

 

 

Giving due consideration to the wishes, age, and maturity of the child, the Family Court providently exercised its discretion in declining to schedule parental access between the father and the child, who was almost 17 years old.

 

In Matter of Jackson v Hall, --- N.Y.S.3d ----, 2025 WL 322148, 2025 N.Y. Slip Op. 00447 (2d Dept., 2025) the parties were the unmarried parents of a child who was born in May 2007 and had resided solely with the mother since 2009. In January 2016, the father filed a petition for parental access with the child. After a hearing, the Family Court denied the father’s petition. The Appellate Division affirmed. It held that while the express wishes of children are not controlling, they are entitled to great weight, particularly where the children’s age and maturity would make their input particularly meaningful. However, a court may not delegate its authority to determine parental access to either a parent or a child. Here, giving due consideration to the wishes, age, and maturity of the child, the Family Court providently exercised its discretion in declining to schedule parental access between the father and the child, who was almost 17 years old at the time of the court’s determination and had a strained relationship with the father.

 

 

Under the particular circumstances of this case, Domestic Relations Law § 111-c permits New York State to register a foreign adoption if the applicant is no longer in possession of the required immigrant visa.

 

In Matter of Lily. --- N.Y.S.3d ----, 2025 WL 322145 , 2025 N.Y. Slip Op. 00448, (2d Dept.,2025) the issue raised on this appeal was whether Domestic Relations Law § 111-c permits New York State to register a foreign adoption if the applicant is no longer in possession of the required immigrant visa. The Appellate Division held that under the particular circumstances of this case, in which the petitioner provided an official Certificate of Citizenship that proved the adopted child was granted the appropriate immigrant visa at the time of her adoption, the registration of a foreign adoption order and order of adoption should be granted. The petitioner was the adoptive mother of the subject child, who was born in China in September 2007. The petitioner adopted the child in China on June 11, 2008. On June 29, 2023, the petitioner commenced this proceeding for the registration of a foreign adoption order and for an order of adoption. The petition noted that the child’s original Certificate of Citizenship and Chinese passport that contained her immigrant visa had been lost. However, the petition included a copy of a replacement Certificate of Citizenship, which was issued by the United States Citizenship and Immigration Services (USCIS) on April 10, 2023. The replacement Certificate of Citizenship confirmed that the child became a citizen of the United States on June 20, 2008. The petitioner also submitted copies of the child’s original birth certificate, adoption registration certificate, and Chinese passport. In an affidavit regarding the original documents, the petitioner averred that when she adopted the child, the child received either an IR-3 or IH-3 visa, which automatically entitled her to a Certificate of Citizenship. The petitioner further averred that she realized in the spring of 2021 that the child’s adoption paperwork, including, inter alia, her immigrant visa and Certificate of Citizenship, were missing from the petitioner’s safety deposit box. The petitioner applied for a replacement Certificate of Citizenship with the USCIS. The petitioner did not apply for a replacement immigrant visa for the child because the child was granted a replacement Certificate of Citizenship. The child was also granted a United States passport in May 2023. The Surrogate’s Court denied the petition without prejudice to renew, determining that it could not determine the validity of the foreign adoption without review of the child’s immigrant visa.

 

The Appellate Divison reversed. It observed that if a petition for registration of a foreign adoption satisfies the requirements set forth in Domestic Relations Law § 111-c, the Surrogate’s Court lacks the authority to deny recognition of the adoption order (see Matter of Child A. [Parent M.], 145 AD3d 874, 876). Children who are adopted abroad are granted either an IR-3 or an IH-3 immigrant visa before their entrance to the United States. According to the website of the USCIS, a printout of which was submitted as an exhibit to the petition, a child admitted to the United States with an IR-3 or IH-3 immigrant visa who, inter alia, resides in the United States and otherwise fulfills the conditions of the Child Citizenship Act, will automatically become a United States citizen and receive a Certificate of Citizenship in the mail. Adopted children who are granted an IR-4, IH-4, or IR-2 immigrant visa first receive a permanent resident card and have to apply for a Certificate of Citizenship. Here, the petitioner, a New York resident, was unable to annex a copy of the child’s *3 immigrant visa to the petition because it had been lost. However, the petitioner provided an affidavit averring that the child had been issued the relevant immigrant visa and a copy of the replacement Certificate of Citizenship, issued by USCIS, showing that the child became a United States citizen only nine days after her adoption. The record showed that the child would not have been able to automatically obtain a Certificate of Citizenship if she had not possessed the appropriate immigrant visa. Under these circumstances, it concluded that the foreign adoption order met the requirements of Domestic Relations Law § 111-c(1), including the requirement that ”the validity of the foreign adoption has been verified by the granting of an IR-3, IH-3, or a successor immigrant visa“ (see id. § 111-c[1][b]). Indeed, to determine otherwise would defeat the intention of Domestic Relations Law § 111-c to protect adoptive families from unnecessary effort and expense. The order was reversed, the petition was granted, and the matter was remitted to the Surrogate’s Court to issue a registration of foreign adoption order and an order of adoption for the child.

 

           

A waiver, to the extent that it has been executed, cannot be expunged or recalled, but, not being a binding agreement, can, to the extent that it is executory, be withdrawn.

 

In Hanford v Hanford, --- N.Y.S.3d ----, 2025 WL 322964, 2025 N.Y. Slip Op. 00446 (2d Dept., 2025) the parties, who had one child together, divorced in 2016. In their separation agreement, which was incorporated but not merged into the judgment of divorce, the parties agreed that the father would pay the mother child support. The separation agreement also provided that neither the separation agreement nor any provisions thereof could be modified or waived except by a writing “duly subscribed and acknowledged with the same formality as” the separation agreement itself. In April 2017, the parties reached an agreement by email to reduce the amount of child support. From April 2017 until September 2022, the father paid the mother child support at the reduced amount agreed upon by the parties. In 2022, the mother filed a violation petition. After a hearing, the Support Magistrate found that the father violated the child support provisions of the separation agreement and directed the father to pay child support arrears of $93,612.45. Family Court denied the father’s objections. The Appellate Division modified. It pointed out that there is a distinction between a modification agreement and a waiver. A modification agreement, “because it is an agreement based upon consideration, is binding according to its terms and may only be withdrawn by agreement”. A waiver, on the other hand, does not require consideration. Rather, a waiver requires “no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable”. A waiver, “to the extent that it has been executed, cannot be expunged or recalled, but, not being a binding agreement, can, to the extent that it is executory, be withdrawn”. A waiver “may arise by either an express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage. An agreement that does not satisfy the prerequisites of a legally binding modification agreement may nonetheless constitute a valid waiver, which cannot be withdrawn once the parties have performed in accordance with its terms. Further, “a contractual provision which sets forth requirements for a legally enforceable waiver may itself be waived.” The mother’s testimony that she agreed to the reduced amount of child support, coupled with the mother’s acceptance of the reduced payments for five years, demonstrated that she intentionally abandoned the right she possessed to receive child support at the rate set forth in the separation agreement for the years preceding her violation petition. However, the mother’s express waiver of her future child support payments was valid and enforceable until the mother validly withdrew it by filing the violation petition. It granted the fathers objection to the extent of vacating the direction to pay $93,486.29 in basic child support arrears and remitted the matter to the Family Court for a new determination of the amount of basic child support arrears owed to the mother by the father from the date of commencement of the proceeding.

 

 

Appellate Division, Fourth Department

 

In order to have substitute counsel appointed, a party must establish that good cause for the release existed necessitating dismissal of assigned counsel.

 

In Matter of Sevilla v Torres, -- N.Y.S.3d ----, 2025 WL 427604, 2025 N.Y. Slip Op. 00777 (4^th Dept,2025) a custody modification proceeding the Appellate Division rejected the mother’s contention that the court erred in summarily denying her motion for the assignment of new counsel. It held that it is well settled that an indigent party’s right to court-appointed counsel under the Family Court Act is not absolute. In order to have substitute counsel appointed, a party must establish that good cause for the release existed necessitating dismissal of assigned counsel. Contrary to the mother’s contention, she failed to show good cause for a substitution. It also rejected her argument that the court erred in finding that the grandmother established extraordinary circumstances. The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case. The nonparent has the burden of establishing that extraordinary circumstances exist even where, as here, the prior order granting custody of the child to the nonparent was made upon the consent of the parties. The grandmother established that the mother was a victim of domestic violence, that the child had been present during more than one incident between the mother and her husband, that the mother had a pattern of leaving the marital home after an incident and then returning a short time later, that the police had been called to the marital residence on multiple occasions, that the mother called the child a liar after he disclosed the extent of the abuse to the grandmother, and that he had been negatively impacted by the dynamics of the marital home.

 

 

Where the court terminated parental rights and committed the child’s custody and guardianship to DSS thereby freeing the child for adoption, adoption became the sole and exclusive means by a member of the child’s extended family to gain custody of the child.

 

In Matter of Graesser v Erie County Childrens Services, --- N.Y.S.3d ----, 2025 WL 426848, 2025 N.Y. Slip Op. 00738 (4^th Dept., 2025) the Family Court terminated the parental rights of the mother with respect to the subject child on the grounds of mental illness and placed the child in the custody and guardianship of Erie County Department of Social Services (DSS). Thereafter, the petitioner, who was the child’s biological maternal grandmother, commenced a proceeding seeking custody of the child. The court dismissed the petition with prejudice, and the Appellate Division affirmed. It held that the court properly dismissed the petition without conducting a hearing. Inasmuch as the court terminated parental rights and committed the child’s custody and guardianship to DSS thereby freeing the child for adoption, adoption became the sole and exclusive means to gain care and custody of the child, and the court was without authority to entertain custody proceedings commenced by a member of the child’s extended family. Petitioner’s recourse was to seek adoption, and not mere custody, of the child.

 

 

Children in a custody matter do not have “full party status.” Entertaining an appeal by the AFC would force the aggrieved yet non-appellant parents to litigate a petition that they have since abandoned

 

In Matter of Abocch v Abdoch, --- N.Y.S.3d ----, 2025 WL 427222, 2025 N.Y. Slip Op. 00746 (4^th Dept., 2025) the  Attorney for the Children (AFC) appealed from an order that, inter alia, continued joint custody of the subject children but designated certain “zones of influence” for decision-making purposes. It found no basis in the record to depart from its prior case law holding that children in a custody matter do not have “full party status” (Matter of Lawrence v. Lawrence, 151 A.D.3d 1879, 1879, 54 N.Y.S.3d 358 [4th Dept. 2017]; see Matter of McDermott v. Bale, 94 A.D.3d 1542, 1543, 943 N.Y.S.2d 708 [4th Dept. 2012]). Neither parent has perfected an appeal from the subject order, and it concluded on the record before it that entertaining the appeal would force the aggrieved yet non-appellant parents to litigate a petition that they have since abandoned. Under the circumstances of this case, it declined to permit the AFC to chart the course of the litigation and held that the appeal must be dismissed (see Lawrence, 151 A.D.3d at 1879, 54 N.Y.S.3d 358).

 

 

In a Family Offense proceeding intent may be inferred from conduct as well as the surrounding circumstances. Here there was a “valid line of reasoning and permissible inferences” which could lead a rational person to conclude that the respondent intended to annoy or harass the petitioner.

 

In Nass v Wurth, --- N.Y.S.3d ----, 2025 WL 375812, 2025 N.Y. Slip Op. 00642 (4^th Dept., 2025) a family offense proceeding, the Appellate Division rejected the respondent’s contention that the evidence did not support the finding that he committed the family offense of harassment in the second degree. “A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person ... [the person] strikes, shoves, kicks or otherwise subjects such other person to physical contact” (Penal Law § 240.26 [1]). Here, the evidence of physical contact was established through the petitioner’s testimony that the respondent grabbed her arm and leg during a struggle inside her car, causing bruising. With respect to the respondent’s intent, intent may be inferred from conduct as well as the surrounding circumstances, and here the evidence establishes that the respondent repeatedly confronted the petitioner at the marina, despite her refusal to engage; that he followed her to her car; and that he attempted to prevent her from leaving the parking lot by trying to take her keys and by grabbing her arm and leg. Thus, there was a valid line of reasoning and permissible inferences that could lead a rational person to conclude that the respondent intended to annoy or harass the petitioner when he physically grabbed her in an effort to prevent her from leaving the parking lot.

 

 

Family Court

 

 

Statements made in support of a Mental Hygiene petition were subject to a qualified privilege.

 

In Matter of W.S., v. G.S.,--- N.Y.S.3d ----, 2025 WL 383371, 2025 N.Y. Slip Op. 25024 (Fam. Ct., 2025) a family offense proceeding, the petitioner alleged, inter alia, that the respondent committed the family offense of harassment in the second degree (Penal Law § 240.26[3]) by, inter alia, engaging in a course of conduct against him, including threatening “further consequences” if he did not withdraw a family offense petition that he had filed against another family member, and then followed upon that threat by making false statements in support of an Article 9 Mental Hygiene petition which resulted in the petitioner’s arrest. Family Court held that the respondent’s statements made in support of a Mental Hygiene petition were subject to a qualified privilege, and be deemed to have a “legitimate purpose” within the meaning of Penal Law § 240.26 (3) unless the petitioner established, by a preponderance of the evidence, that the respondent’s statements were made with a knowing or reckless disregard of their falsity and with the conscious objective to alarm or seriously annoy the petitioner. Applying that standard and considering the totality of the evidence submitted on all the petitioner’s claims, the court found that the petitioner failed to carry his burden to establish, by a preponderance of the evidence, that the respondent committed a family offense against him.

 

 

 

February 1, 2025

 

Appellate Divison, First Department

 

A parent’s due process interest in the care, custody, and control of their children and the childrens parallel right to be reared by their parent continues even after a dispositional order in a Family Court Article 10 proceeding.      

 

 

In Matter of E.I., --- N.Y.S.3d ----, 2025 WL 15009, 2025 N.Y. Slip Op. 00022(1^st Dept., 2025) the Appellate Division reversed an order of the Family Court which sua sponte modified a May 9, 2023 order of fact-finding and disposition to vacate the release of the subject children to the respondent mother and to place them in the custody of the Commissioner of the Administration for Children’s Services (ACS) pending a hearing on the agency’s motion to extend the period of supervision by six months, and reversed an order, which continued the children’s placement in the care and custody of ACS until the next permanency hearing. It was remanded for further proceedings. It observed that a parent’s due process interest in the care, custody, and control of their children and the childrens parallel right to be reared by their parent continues even after a dispositional order in a Family Court article 10 proceeding (Matter of F.W. [Monroe W.], 183 A.D.3d 276, 280, 122 N.Y.S.3d 620 [1st Dept. 2020]. Here, pursuant to a dispositional order, the children were released to their mother’s care with ACS supervision. ACS moved pursuant to Family Court Act § 1061 to extend the period of supervision. Family Court violated the mother’s due process rights when, on the return date of the motion, it sua sponte removed the children without giving the mother notice or an opportunity to be heard and, at a later hearing, effectively imposed upon the mother the burden of showing that the removal was unwarranted There was nothing in the language of the agency’s motion to put the mother on notice that the children might be removed from her care on the return date, and the record demonstrates that the mother was not given a meaningful opportunity to be heard on the issue. Moreover, the agency maintained that it was in the children’s best interests to remain with the mother, and the children’s attorney supported the agency’s position. Family Court’s decision to continue the children’s placement in the agency’s care until the next placement hearing was not supported by a sound and substantial basis in the record.

 

 

The fact that the domestic violence occurred in close proximity to the child, who was approximately 10 feet away in a bedroom permitted an inference of impairment or imminent danger of impairment even in the absence of evidence that he was aware of it or emotionally affected by it.

 

In Matter of M. G. 2025, --- N.Y.S.3d ----, 2025 WL 247654, 2025 N.Y. Slip Op. 00291 (1^st Dept., 2025) the Appellate Division affirmed an order of the Family Court that determined that the father neglected the child. It held that the mother’s fact-finding testimony, which the Family Court credited, was sufficient to establish that the child was subject to actual or imminent danger of injury or impairment to his emotional and mental condition as a result of his exposure to domestic violence between the father and the mother. The mother testified that during an incident in 2021, and on July 9, 2023, the father choked her while the child was present. The fact that the domestic violence occurred in close proximity to the child, who was approximately 10 feet away in a bedroom during the July 2023 incident, permitted an inference of impairment or imminent danger of impairment even in the absence of evidence that he was aware of it or emotionally affected by it.

 

 

 The totality of the circumstances did not support the Family Court’s finding that the officer had reasonable suspicion to justify the stop of the juvenile and his detention was unlawful because the appellant’s “equivocal or innocuous behavior” was “susceptible of an innocent as well as a culpable interpretation.

 

 

In Matter of WP, --- N.Y.S.3d ----, 2024 WL 5161065, 2024 N.Y. Slip Op. 06426 (1^st Dept., 2024) the Appellate Division reversed on the law and as a matter of discretion in the interest of justice an order which adjudicated the appellant a juvenile delinquent upon his admission that he committed acts that, if committed by an adult, would constitute the crime of criminal possession of a weapon in the second degree, and placed him on probation for a period of 12 months. It found that the totality of the circumstances did not support the Family Court’s finding that the officer had reasonable suspicion to justify the stop, and his detention was unlawful because the appellant’s “equivocal or innocuous behavior” was “susceptible of an innocent as well as a culpable interpretation”. Police, in two unmarked vehicles, while canvassing the area in response to a “Shotspotter” sensor report of shots fired, observed the appellant riding a bicycle on the sidewalk. An officer observed the appellant look in the direction of one of the unmarked vehicles, backpedal, duck, turn the bicycle around, and ride in the opposite direction. The officer found the appellant’s actions suspicious, exited the vehicle, approached the appellant, ordered him to stop, grabbed him by both wrists, and pushed him against the wall. While the appellant was detained another officer observed a bulge in the appellant’s pocket, squeezed the pocket area and retrieved a firearm. Although an officer observed an L-shaped object in appellant’s pocket during the detention, there was no evidence or any reasonable inference that the officer “was in a position to view the contraband absent the unlawful detention” (People v. Messano, 41 N.Y.3d 228, 235 [2024]). Since no other admissible evidence existed to establish the crime, the prosecution would be unable to secure a conviction on the gun possession count without the gun recovered from defendant (People v. Rodriguez, 41 N.Y.3d 1, 14,[2023]). Accordingly, the petition had to be dismissed.

 

 

The bifurcation of matrimonial actions is generally disfavored because it raises the possibilities of economic coercion, two protracted proceedings, or delay in resolving the financial issues.      

 

In Dewald v Dewald, --- N.Y.S.3d ----, 2025 WL 84515, 2025 N.Y. Slip Op. 00189 (1^st Dept., 2025) the Appellate Division, inter alia, affirmed an order of the Supreme Court that denied defendant husband’s motion to transfer the determination of the spousal support issue to Family Court and ordered him to discontinue without prejudice his pending Family Court action. It held that the court providently exercised its discretion in denying the husband’s request to bifurcate the proceedings and allow him to litigate the issue of spousal support in Family Court. The bifurcation of matrimonial actions is generally disfavored because it raises the possibilities of economic coercion, two protracted proceedings, or delay in resolving the financial issues. (Costin v. Costin, 225 A.D.2d 575, 575 [2d Dept 1996]). The only reason the husband provided to support separate proceedings was his unfounded belief that the Family Court proceeding would result in a quicker resolution. This purported reason does not justify bifurcation and could lead to inconsistent orders, as Supreme Court has the authority to decide issues of equitable distribution.

 

           

Family Court properly declined to exercise its continuing jurisdiction under Domestic Relations Law § 76–a(1)(a) where father failed to present evidence that would show a substantial connection between the child and New York and acquiesced to the jurisdiction of the Indian courts by litigating there.

 

In Matter of Vikram J., v Anupama S. --- N.Y.S.3d ----, 2025 WL 84521, 2025 N.Y. Slip Op. 00193 (1^st Dept., 2025) the Appellate Division found that New York had jurisdiction to make the initial child custody determination since this was the child’s “home state” and the father continued to live here. Nevertheless, as the father conceded, the mother and the child, have lived in India and neither visited nor lived in New York since the summer of 2013. There was no evidence that the mother violated any custody order or otherwise behaved unjustifiably by taking the child to India. The child’s school and developmental records were in India, where she resided, the father failed to present evidence concerning the child’s care, protection, training, and personal relationships that would show a substantial connection between the child and New York. And the father had acquiesced to the jurisdiction of the Indian courts by litigating there (see Valji v. Valji, 130 AD3d 404, 404 [1st Dept 2014]; Sanjuan v. Sanjuan, 68 AD3d 1093, 1094–95 [2d Dept 2009]). Accordingly, the Family Court properly declined to exercise its continuing jurisdiction under Domestic Relations Law § 76–a(1)(a).

 

 

 

Law firm was not barred from collecting unpaid legal fees where it substantially complied with the rules governing matrimonial retainer agreements and was entitled to assert a charging lien in connection with its claim to recover reasonable attorney’s fees. It was not required to serve defendant with notice of his right to arbitrate before filing a notice of a charging lien.

 

 

In Harper v De Almeida -- N.Y.S.3d ----, 2025 WL 51879, 2025 N.Y. Slip Op. 00156 (1^st Dept., 2025)  the Appellate Division affirmed an order which denied defendant’s motion to set aside the charging lien filed by his former counsel, nonparty respondent law firm Abrams Fensterman LLC, and ordered that the Abrams firm was entitled to a charging lien of $18,682.78 and to a charging lien for reasonable fees incurred after December 31, 2022 in an amount to be determined in arbitration to be commenced by defendant within 10 days of the date of the order, or else in the amount of $14,602.50. It held that Supreme Court properly found that the Abrams firm was entitled to a charging lien against defendant in this matrimonial action, as the firm submitted proof that it entered into a retainer agreement with defendant. The Abrams firm also submitted proof that defendant acknowledged in writing that he had received and reviewed regular invoices and did not object to the amounts claimed to be due through December 30, 2022). Furthermore, defendant agreed in writing that plaintiff was authorized to pay $50,000 to the firm from his share of equitable distribution, to be applied to outstanding fees owed to the firm and to replenish the retainer up to $20,000. Defendant’s assertion that he was sick when he signed the agreement was improperly raised for the first time in reply, and in any event was unsupported by any evidence. It held that the court providently directed defendant to commence an arbitration (see 22 NYCRR 137 et seq.) to determine the reasonable amount of fees incurred after December 31, 2022 — $14,602.50, according to the Abrams firm — without limiting defendant’s ability to assert fee disputes in a greater amount. The firm was not barred from collecting unpaid legal fees based on any failure to comply with the rules governing matrimonial attorneys (see Granato v. Granato, 75 A.D.3d 434, 434, 904 N.Y.S.2d 67 [1st Dept. 2010]). The firm substantially complied with the rules governing matrimonial retainer agreements under 22 NYCRR Parts 1400 and 1300, and therefore was entitled to assert a charging lien in connection with its claim to recover reasonable attorney’s fees (see Flanagan v. Flanagan, 267 A.D.2d 80, 81, 699 N.Y.S.2d 406 [1st Dept. 1999]). Nor was the firm required to serve defendant with notice of his right to arbitrate before filing a notice of a charging lien (see 22 NYCRR 137.6; Sprole v. Sprole, 151 A.D.3d 1405, 1407, 58 N.Y.S.3d 646 [3d Dept. 2017]). In any event, the firm provided defendant with such notice.

 

 

 

The parties’ marriage was valid where they took part in a religious wedding ceremony officiated by a rabbi, obtained Jewish wedding contract and signed a document that stated they were entering into a “marriage that is binding under Jewish law”, although they never obtained a marriage license, and according to defendant, held themselves out as single. Mahoney–Buntzman does not apply to the question of marital status.

 

 

 In Spalter v Spalter, --- N.Y.S.3d ----, 2025 WL 51871, 2025 N.Y. Slip Op. 00178

(1^st Dept.,2025) the Appellate Division affirmed an order that denied defendant’s CPLR 3211 and Domestic Relations Law § 10 motion to dismiss this divorce action and granted plaintiff’s cross-motion declaring the parties’ marriage valid. The parties took part in a religious wedding ceremony officiated by a rabbi under a chuppah, with 29 guests and featuring traditional Jewish rites and blessings. They obtained a ketubah [Jewish wedding contract] which was signed by two witnesses, signed a separate document that stated they were entering into a “marriage that is binding under Jewish law” but not “legally recognized” under New York law and signed an arbitration agreement referring to them as “husband-to-be” and “wife-to-be,” in which they authorized the Beth Din to preside over marital disputes. However, they never obtained a civil marriage license, and according to defendant, held themselves out as single, lived separate lives and only entered into the religious marriage to facilitate their children’s acceptance into day schools and the family into synagogues. At the time of the ceremony the parties had two children together, and now have four, three of which are children with special needs. It held that the motion court properly determined that the parties’ marriage was valid (see Domestic Relations Law §§ 10, 12, 25), as defendant failed to overcome New York’s “strong presumption favoring the validity of ... marriage” This strong presumption of the validity of marriage is even greater where, as here, the legitimacy of children is concerned. Although Domestic Relations Law § 13 requires all persons intending to be married in New York to obtain a marriage license, § 25 provides that “[n]othing in [Domestic Relations Law article 3] shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age”. As the parties’ marriage was solemnized by a rabbi with witnesses in a traditional Jewish ceremony, their failure to obtain a marriage license does not invalidate the marriage. That the parties may not have intended to have their marriage legally recognized under New York law is not dispositive because “while marriage is a contract between two consenting individuals, it is a special status governed by laws and the State and not determined by those entering the contract” Although Domestic Relations Law § 10 clearly requires that both parties consent to the marriage, that requirement was met here. The record showed that, while the parties signed a document that stated that their marriage was not “legally recognized” under New York law, the parties consented to the marriage, especially in light of their acknowledgment in that same document that they were “entering into a marriage that is binding under Jewish law.” Even though defendant claimed that plaintiff listed herself as unmarried in her tax returns, this does not prevent her from arguing that the parties were married. The proposition that “a party to litigation may not take a position contrary to a position taken in an income tax return” (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422 [2009]), does not apply to the question of marital status, which is a mixed question of law and fact.

 

 

Marriage is a contract that can be revoked by the court pursuant to MHL § 81.29(d), and is void ab initio, even if made prior to appointment of a guardian, once it is established that the contract was made while the person was incapacitated.           

 

In John M. v. Helen E., --- N.Y.S.3d ----, 2025 WL 51878, 2025 N.Y. Slip Op. 00158 (1^st Dept.,2025) the Appellate Division affirmed an order that, inter alia, determined that John M. was incapacitated when he entered into a marriage with respondent Helen E. and ordered that the marriage was null and void and of no effect ab initio. In this Article 81 proceeding, petitioner moved below to revoke the marriage between the incapacitated person John M. and appellant Helen E. It is well established that marriage is a contract, and pursuant to Mental Hygiene Law § 81.29(d), it can be revoked by a court, even if made prior to appointment of a guardian, once it is established that the contract was made while the person was incapacitated. Unlike an annulled marriage, a marriage revoked pursuant to Mental Hygiene Law § 81.29(d) is void ab initio. Petitioner proved by clear and convincing evidence that John M. was incapacitated at the time of the parties’ marriage. The temporary guardian, the court evaluator, petitioner, and a longtime close friend of John M., consistently testified that at the time of the June 2022 marriage, John M. lacked the mental capacity to understand the significance of a decision to marry. There was no basis to disturb the credibility determinations of the trial court, which found respondent Helen E.’s testimony not credible, intentionally evasive, nonresponsive, and contradictory. The marriage took place one month after petitioner, who is John M.’s daughter, commenced the guardianship proceeding based on her concerns about his worsening cognitive impairment and possible financial exploitation. The evidence at the hearing established that Helen E., John M.’s former home health aide from his time in a care facility, was making multiple attempts to marry him while the investigation into John M.’s capacity was ongoing. The Article 81 court’s determination that John M. was incapacitated and in need of a guardian came mere weeks after the parties’ marriage. Medical evidence was not necessary to prove incapacity.

 

 

Appellate Division, Second Department

 

 

A child who relocates with their “approved placement resource” may be permitted to remain in the receiving state while the ICPC process is pending where the child was already placed with the “approved placement resource” in the sending state and the parties prepare an ICPC application “immediately upon the making of the decision” to relocate.

 

 

In Matter of Camiyah B., 2025 WL 264059 (2d Dept.,2025) the petitioner commenced a neglect proceeding. Upon the mother’s consent to a finding of neglect without admission pursuant to Family Court Act § 1051(a), Family Court found that the mother neglected the child and placed the child in the custody of the Commissioner of Social Services. The child was subsequently placed in the foster care of her paternal grandmother. At a court appearance on November 8, 2023, SCO Family of Services, the agency supervising the child’s foster care placement, made an application to permit the foster parent to relocate with the child to Texas. Family Court granted the application without a hearing. The mother appealed arguing that the Family Court should not have allowed the child to relocate to Texas prior to the completion of the necessary process under the Interstate Compact on the Placement of Children. The Court observed that pursuant to Social Services Law § 374–a(1)(art III)(b), “[p]rior to sending, bringing or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state.” “The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child” (id. § 374–a[1][art III][d]). The Appellate Division reversed. It found that pursuant to ICPC Regulation No. 1 promulgated by the Association of Administrators of the Interstate Compact on the Placement of Children (see id. § 374–a[1][art VII]), subject to certain restrictions, a child who relocates with their “approved placement resource” may be permitted to remain in the receiving state while the ICPC process is pending where the child was already placed with the “approved placement resource” in the sending state and the parties prepare an ICPC application “immediately upon the making of the decision” to relocate (ICPC Regulation No. 1[2], [5][a]).  Here, the child had already been placed with the foster parent, and the foster parent was seeking to relocate with the child, bringing this case within the ambit of ICPC Regulation No. 1. The parties timely sought permission to relocate and prepared an ICPC application, which the Family Court directed them to submit and which the sending and receiving states were required to timely rule upon (see ICPC Regulation No. 1[5][a]). At oral argument, counsel represented that although the receiving state has not yet ruled on the application, the receiving state has been providing ongoing supervision. There was no indication in the record that the ICPC application was denied by Texas. Thus, the court did not err in granting the application to relocate. The mother’s contention that the Family Court erred in failing to conduct a full dispositional hearing was unpreserved for appellate review because she did not request a full dispositional hearing, despite having the opportunity to do so (see Matter of Thomas J. [Joan D.], 112 A.D.3d 718, 719, 976 N.Y.S.2d 398).

 

 

 

A finding of parental interference or alienation’ only constitutes one fact, albeit an important one, in determining the best interests of the child.

 

In Sookchan v Sookchan, --- N.Y.S.3d ----, 2025 WL 97550, 2025 N.Y. Slip Op. 00228

(2d Dept., 2025) the Appellate Division held that in a custody proceeding a finding of parental interference or alienation’ only constitutes ‘one fact, albeit an important one, in determining the best interests of the child’ ” (Matter of Haase v. Jones, 230 A.D.3d at 778–779, 219 N.Y.S.3d 80, quoting Matter of Luke v. Erskine, 222 A.D.3d at 871, 199 N.Y.S.3d 707).

 

 

Family Court’s determination that the mother’s parental access be conducted virtually and supervised, and conditioning the virtual access on the children’s consent, was supported by a sound and substantial basis in the record.

 

In Reid v Williams, --- N.Y.S.3d ----, 2025 WL 97536, 2025 N.Y. Slip Op. 00226 (2d Dept., 2025) the parties were the parents of twin boys, born in January 2010, who had resided with the father since 2018. The father filed a petition for sole legal and physical custody of the children, and the mother filed a petition for sole legal custody of the children. After a hearing, the Family Court, among other things, granted the father’s petition for sole legal and physical custody of the children, denied the mother’s petition, directed that the mother’s parental access be conducted virtually and supervised, upon the consent of the children. The Appellate Division found, inter alia, that the evidence demonstrated that the mother lacked insight into her own needs and the needs of the children and that therapeutic supervised visits between the mother and the children proved unsuccessful. Consequently, under the totality of the circumstances the Family Court’s determination that the mother’s parental access be conducted virtually and supervised, and conditioning the virtual access on the children’s consent, was supported by a sound and substantial basis in the record (cf. Matter of Mondschein v. Mondschein, 175 A.D.3d 686, 687–688, 108 N.Y.S.3d 461).

 

 

Family Court should not have provided that its dismissal of the mother’s custody petitions was with prejudice. This language could create confusion as to whether the mother could seek relief based upon a change in circumstances. Child custody and parental access orders are not entitled to res judicata effect and are subject to modification based upon a showing of a change in circumstances.

 

 In Blackman v Barge, --- N.Y.S.3d ----, 2025 WL 97466, 2025 N.Y. Slip Op. 00214 (2d Dept., 2025) by order dated September 9, 2019, later affirmed, the father was awarded sole legal and physical custody of the child, with supervised therapeutic parental access to the mother. The mother’s petition to modify that order and her application to extend supervised therapeutic parental access were denied, without a hearing, by order dated December 24, 2020, which was also affirmed. The mother again petitioned the Family Court to modify the order dated September 9, 2019, to award her sole legal and physical custody of the child or, in the alternative, for an extension of supervised therapeutic parental access with the child. By order dated February 16, 2023, the court, inter alia, dismissed, without a hearing, the mother’s petitions with prejudice. The Appellate Division held, inter alia, that the Family Court should not have provided that its dismissal of the mother’s petitions was with prejudice. This language could create confusion as to whether the mother could seek relief based upon a change in circumstances. Therefore, it deleted that provision of the order appealed from and substituted a provision dismissing the petitions without prejudice. It noted that child custody and parental access orders are not entitled to res judicata effect and are subject to modification based upon a showing of a change in circumstances. Thus, a new petition may be filed where there has been a sufficient change in circumstances since the order or judgment sought to be modified was made. Since there was no showing of a change in circumstances in these proceedings, it affirmed insofar as appealed from.

 

 

Family Court should not have conditioned any future modification of the mother’s parental access with the child, in effect, upon her enrollment in mental health treatment and her resulting improvement in mental status, emotional regulation, psychological functioning, and empathy for the child. Nevertheless, this was proper to the extent the court directed the mother to submit to such treatment as a component of her parental access.

 

In Nathaniel v Mauvais, --- N.Y.S.3d ----, 2025 WL 97485, 2025 N.Y. Slip Op. 00223 (2d Dept.,2025) in 2016 the parties had been awarded joint legal custody of the child, with sole residential custody to the father and certain parental access to the mother. In September 2017, the father filed a petition to modify to award him sole legal custody of the child and in August 2020, filed an application to modify the 2016 order to permit him to relocate with the child to Georgia. The court, after a hearing, awarded him sole legal custody of the child, granted his application to permit him to relocate with the child to Georgia, awarded the mother parental access with the child only to the extent of allowing her to communicate with him through written letters and packages by regular mail once per week, and conditioned any future modification of the mother’s parental access with the child, in effect, upon her enrollment in mental health treatment and her resulting improvement in mental status, emotional regulation, psychological functioning, and empathy for the child. The Appellate Division, inter alia, affirmed the Family Court’s determination that it was in the child’s best interests to limit her parental access to written letters and packages by regular mail once per week. Among other reasons, the evidence at the hearing demonstrated that the mother’s mental health had deteriorated over time, that she repeatedly made false reports of abuse to authorities, that she failed to appreciate the consequences of those reports on the child, that parental access time and telephonic communications with the mother had repeatedly caused the child emotional distress, and that the mother only partially participated in a court-ordered forensic evaluation. However, it observed that a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights. The Family Court should not have conditioned any future modification of the mother’s parental access with the child, in effect, upon her enrollment in mental health treatment and her resulting improvement in mental status, emotional regulation, psychological functioning, and empathy for the child Nonetheless, to the extent the court directed the mother to submit to such treatment as a component of her parental access, this was proper.

 

           

 

 

Where the petitioner maternal grandmother did not have legal custody or legal guardianship of the child, she did not have standing to bring a family offense proceeding on behalf of the child.

 

In Gliksman v Burekhovich,,--- N.Y.S.3d ----, 2025 WL 97479, 2025 N.Y. Slip Op. 00218 (2d Dept., 2025) the paternal grandmother of the  child who was born in 2017 filed this family offense petition on behalf of the child, seeking an order of protection against the respondent, the child’s maternal uncle. Family Court dismissed the petition for lack of standing. The Appellate Division affirmed. It observed that a person under the age of 18 may only appear by one of the representatives enumerated in CPLR 1201. Unless the court appoints a guardian ad litem, an infant shall appear by the guardian of his or her property or, if there is no such guardian, by a parent having legal custody, or, if there is no such parent, by another person or agency having legal custody” (CPLR 1201). Since the petitioner did not have legal custody or legal guardianship of the child, the petitioner did not have standing to bring this proceeding on behalf of the child.

 

 

Family Court’s determination to limit the mother’s parental access with the child to access via Skype “or other agreed-upon digital service,” absent agreement by the parties to further parental access, lacked a sound and substantial basis in the record, where the evidence did not demonstrate that it would be detrimental to the child to have in-person visits.

 

In Koch v. Tsai, 2025 WL 45473 (2d Dept, 2025) the parties, who were never married, were  the parents of a daughter born in 2015. In May 2018, the father commenced a custody proceeding. After a hearing, Family Court granted the petition and awarded the mother parental access with the subject child via Skype “or other agreed-upon digital service” and “further access to the child as the parties may agree.” The Appellate Division reversed. It observed, inter alia, that a noncustodial parent should have reasonable rights of parental access, and the denial of those rights to a biological parent is a drastic remedy which should only be invoked when there is substantial evidence that parental access would be detrimental to the child” The Family Court’s determination to limit the mother’s parental access with the subject child to access via Skype “or other agreed-upon digital service,” absent agreement by the parties to further parental access, lacked a sound and substantial basis in the record, since the hearing evidence did not demonstrate that it would be detrimental to the subject child to have in-person visits with the mother in New York. It remitted  the matter to the Family Court, for an in-camera interview with the subject child and a new determination thereafter of the mother’s parental access with the subject child.

 

 

Mother’s out-of-court statements were admissible in the Neglect proceeding under the excited utterance exception to the hearsay rule. The mother spoke to the police officer within minutes after the incident; she was very upset, crying, and in distress. The mother was still under the stress of excitement when she made the statements, and the statements were not made under the impetus of studied reflection.

 

In Matter of Kyng T.B.--- N.Y.S.3d ----, 2025 WL 45471, 2025 N.Y. Slip Op. 00087 (2d Dpt., 2025) the Appellate Division affirmed an order of the Family Court which found the parents guilty of neglect. It observed, inter alia, that much of the evidence against the father consisted of out-of-court statements made by the mother to a police officer who responded to the mother’s 911 call. Contrary to the father’s contention, the mother’s out-of-court statements were admissible under the excited utterance exception to the hearsay rule. The record reflected that the mother spoke to the police officer within minutes after the incident and that she was very upset, crying, and in distress. The record supported the conclusion that the mother was still under the stress of excitement when she made the statements, and the statements were not made under the impetus of studied reflection (see People v. Hernandez, 28 N.Y.3d 1056, 1057).

 

 

Where the parties and their children resided in New York and the mother registered the Colorado support order in this state Family Court had jurisdiction to adjudicate the support modification proceeding pursuant to section 580–613(a). In such a proceeding the court must apply the procedural and substantive law of this state.

 

In O’Connor v Shaw, --- N.Y.S.3d ----, 2024 WL 4964813, 2024 N.Y. Slip Op. 0604 (2d Dept., 2025) the parties, who had two children, divorced in 2018 in Colorado. Pursuant to an order of the District Court, Boulder County, in the state of Colorado, the parties were to recalculate child support on an annual basis pursuant to Colorado Revised Statutes § 14–10–115(14). In August 2018, the parties and their children relocated from Colorado to New York and resided in New York since that time. In November 2020, the mother filed a petition for an upward modification of the father’s child support obligation. Following a hearing, a Support Magistrate, inter alia, granted the mother’s petition to the extent of directing the father to pay child support of $1,544.29 per month, which was the father’s presumptive child support obligation under Colorado Revised Statutes § 14–10–115. The mother filed objections and the Family Court denied the mother’s objections. The Appellate Division observed that the Uniform Interstate Family Support Act grants continuing, exclusive jurisdiction over a child support order to the state that issued the order (Family Ct Act § 580–205[a]). As relevant herein, the issuing state loses such jurisdiction where none of the parties or children continue to reside in that state” (Family Ct Act § 580–613[a]). Here, it was undisputed that the parties and their children resided in New York and that the mother registered the Colorado support order in this state. Thus, the Family Court had jurisdiction to adjudicate the proceeding (see 28 USC § 1738; Family Ct Act §§ 580–611[a]; 580–613[a]) Further, Family Court Act § 580–613(b) provides that, in a modification proceeding brought pursuant to section 580–613(a), the court “shall apply ... the procedural and substantive law of this state.” It held that the Support Magistrate improperly applied Colorado law in calculating the father’s modified support obligation and that the Family Court should have granted the mother’s objections. It remitted the  matter to the Family Court for recalculation of the father’s modified child support obligation in accordance with the Child Support Standards Act.

 

 

Petition to vacate acknowledgment of paternity was meritorious where at the time that Petitioner signed the acknowledgment, he was not aware that the mother had another sexual partner during the relevant time period, and he later received newly discovered evidence - DNA test results from a private DNA test, which excluded him as the child’s biological father.

 

In Matter of Shala C.v. Dacia A.D.S. --- N.Y.S.3d ----, 2024 WL 4964797, 2024 N.Y. Slip Op. 06040(2d Dept.,2024) a paternity action, the petitioner and the mother were never married, but on the day that the child was born, the petitioner executed an acknowledgment of paternity. In July 2022, the petitioner filed a petition to vacate the acknowledgment of paternity, based on mistake of fact and the report of a DNA test dated April 16, 2021, indicating that the probability of the petitioner being the father of the child was 0%. The mother moved to dismiss the petition. The Support Magistrate, granted the mother’s motion and dismissed the petition. Family Court denied the petitioner’s objections to the orders. The Appellate Division observed that the Family Court raised the issue of venue, which was not before the court, and denied the petition on the ground that the DNA test did not constitute newly discovered evidence, because it was not in existence when a prior petition to vacate the acknowledgment of paternity was denied without prejudice. It pointed out that a party seeking to vacate an acknowledgment of paternity more than 60 days after it was executed must establish that it was signed by reason of fraud, duress, or material mistake of fact (see Family Court Act 516–a[b][ii]. Here, the petitioner alleged that he and the mother engaged in sexual relations during the relevant time period, that at the time that he signed the acknowledgment, he was not aware that the mother had another sexual partner during the relevant time period, and that he later received newly discovered evidence - the DNA test results from a private DNA test, which excluded him as the child’s biological father. Under these circumstances, the petition was potentially meritorious. It reinstated the petition to vacate the acknowledgment of paternity and remitted the matter to the Family Court or further proceedings on the petition.

 

 

 

January 16, 2025

 

Appellate Divison, First Department

 

Order which directed a hearing on motion to vacate a 2017 custody order, constituted the law of the case and was binding on all judges of coordinate jurisdiction. Thus, the subsequent order of another judge denying the motion to vacate, without holding a hearing, constituted a violation of the law of the case doctrine, and required reversal on that basis alone

 

In Matter of Jahir I., v. Sharon E.W., --- N.Y.S.3d ----, 232 A.D.3d 466, 2024 WL 4775307, 2024 N.Y. Slip Op. 05635 (1^st Dept., 2024) in March 2023, the father moved for vacatur of a 2017 order granting custody of the child to the child’s maternal grandmother, alleging that custody was fraudulently obtained without his knowledge by multiple misrepresentations made to the Family Court, Kings County. His order to show cause sought “an evidentiary fact-finding hearing to determine the circumstances surrounding [the maternal grandmother’s 2017 custody petition], with respect to representations that [the maternal grandmother] made to the Court regarding the identity of the father of the child.” On or about March 21, 2023, Family Court, New York County granted so much of the father’s motion as sought an evidentiary hearing. That court had previously issued so-ordered subpoenas to, among others, the maternal grandmother. On March 14, 2023, the father moved pursuant to CPLR 3124 for an order to compel the maternal grandmother to comply with the so-ordered subpoena. The father sought relief  pursuant to CPLR 3126, an order finding the maternal grandmother in contempt, and an order directing her to pay the father’s attorney’s fees . At the end of November 2023, the matter was transferred to the Judge who issued the orders on appeal. Rather than conduct the ordered hearing, the court denied the father’s motion to vacate, declined to hold the evidentiary hearing and denied the father’s motion to compel the maternal grandmother to comply with the so-ordered subpoena served on her, on the grounds that the subpoena was overbroad. The Appellate Division reversed. It held that the March 21, 2023 order, which directed a hearing on the father’s motion to vacate the 2017 custody order, constituted the law of the case and was thus binding on all judges of coordinate jurisdiction (see Martin v. City of Cohoes, 37 N.Y.2d 162, 165 [1975]). Thus, the order denying the motion to vacate the custody order, without holding a hearing, constituted a violation of the law of the case doctrine, and should be reversed on that basis alone (see Post v. Post, 141 A.D.2d 518, 519, 529 N.Y.S.2d 341 [2d Dept. 1988]). Under the circumstances of this case, the court’s decision to so-order the subpoena likewise constituted law of the case. Family Court therefore erred when it denied the motion to compel solely on the basis that the judicial subpoena was overbroad.

 

 

In Neglect proceeding the court properly drew a negative inference against respondent for failing to testify, even though her refusal was due to the pending criminal charges against her.

 

 

In Matter of  E.R. --- N.Y.S.3d ----, 2024 WL 5048860, 2024 N.Y. Slip Op. 06172

(1^st Dept., 2024) the Appellate Division affirmed an order of the Family Court  finding that mother neglected children, placing them in custody of Administration until next permanence hearing, and directing that mother’s visitation be supervised. The finding of neglect against was supported by a preponderance of the evidence (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]]). The evidence adduced at the fact-finding hearing showed that the mother engaged in a violent physical altercation with the building superintendent in the children’s presence and caused injuries to his neck. During the confrontation, she encouraged her then six-year-old son to hit the superintendent with a metal pipe by demonstrating how he should swing it. Respondent’s actions also put the children at direct risk of harm because the youngest child’s stroller was knocked to the ground during the incident, resulting in the child suffering abrasions to the side of her face. When the police officers arrived at the scene, respondent cursed at them, kicked at and hit them in front of all three children. The court properly concluded that the record demonstrated that the children’s emotional and mental condition had been impaired, or was in imminent danger of becoming impaired, as a result of witnessing respondent physically attack the superintendent and the officers and that the harm to the children was a consequence of respondent’s failure to exercise a minimum degree of care. The court properly drew a negative inference against respondent for failing to testify, even though her refusal was due to the pending criminal charges against her (see Matter of Ayanna P. [Darryl B.], 184 A.D.3d 542, 543, 124 N.Y.S.3d 548 [1st Dept. 2020]). Even a single incident is sufficient to support a finding of neglect because respondent’s judgment was strongly impaired, exposing the children to a substantial risk of harm. Furthermore, the court properly relied on a 2021 neglect finding against respondent in connection with her stabbing her ex-boyfriend with a knife in the children’s presence because the prior findings were sufficiently close in time to the instant petition and also involved respondent physically attacking another individual.

 

 

Appellate Division, Second Department

 

 

In evaluating a contention that the evidence supporting a fact-finding at a juvenile delinquency proceeding is against the weight of the evidence, the Court first determines whether a different fact-finding would not have been unreasonable

 

In Matter of Ahmand T. --- N.Y.S.3d ----, 2024 WL 4964646, 2024 N.Y. Slip Op. 06051 (2d Dept.,2024) after denying the juvenile’s motion to suppress identification evidence, the Family Court found that the juvenile committed act which, if committed by adult, would have constituted assault in the third degree and menacing in the third degree, adjudicated him a delinquent, and placed him on probation for a period of six months. The Appellate Division vacated and remanded. It held that in evaluating a contention that the evidence supporting a fact-finding at a juvenile delinquency proceeding is against the weight of the evidence, the Court first determines whether a different fact-finding would not have been unreasonable (Matter of Shamik M., 117 A.D.3d 1056, 1057). If, based on all of the credible evidence, a different finding would not have been unreasonable, this Court will then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. It found that in this single-witness identification case, a different determination than that made by the Family Court would not have been unreasonable, and that, upon weighing the “relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Bleakley, 69 N.Y.2d at 495), the court’s determination was against the weight of the evidence. In any event, contrary to the presentment agency’s contention, the Family Court should have granted that branch of the appellant’s motion which was to suppress the showup identification evidence. At a suppression hearing, the Presentment Agency bears the burden of establishing the legality of police conduct in the first instance (Matter of Jakwon R., 110 A.D.3d 723, 724). Here, the testimony presented at the suppression was insufficient to establish that the police had reasonable suspicion to stop the appellant. Since the initial stop of the appellant was unlawful, the court should have granted that branch of the appellant’s motion which was to suppress the showup identification evidence as the fruit of the poisonous tree. Further, while the appellant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, the presentment agency has the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure. A showup identification procedure is unduly suggestive when it creates a ‘substantial likelihood of misidentification’ (People v. Galvez–Marin, 225 A.D.3d 622, 625). Here, the presentment agency failed to satisfy its initial burden of establishing the reasonableness of the police conduct and the lack of any undue suggestiveness in the showup identification procedure.

 

 

Appellate Divison, Third Department

 

 

Although Family Ct Act § 651[b] and Domestic Relations Law § 70[a]) states that a petition may be brought “[w]here a minor child is residing within this state” the  modern view is that the presence of the child in the State is not an absolute prerequisite to the filing of a petition for a writ of habeas corpus, where the disputing adults are subject to the court’s jurisdiction

 

In Matter of Christopher Y v Sheila Z, --- N.Y.S.3d ----, 2024 WL 5216598, 2024 N.Y. Slip Op. 06631 (3d Dept., 2024) the father appealed from an order of Family Court arguing that it abused its discretion in denying his petition for a writ of habeas corpus compelling the child’s production in New York for his supervised parenting time, after the mother had relocated to Florida without his permission. The Appellate Division observed that section 651 of the Family Ct Act provides, as pertinent here, that “[w]hen initiated in the [F]amily [C]ourt, the [F]amily [C]ourt has jurisdiction to determine, ... with the same powers possessed by the [S]upreme [C]ourt in addition to its own powers, habeas corpus proceedings ... for the determination of the custody or visitation of minors” (Family Ct Act § 651[b]; see Domestic Relations Law § 70[a]). The very purpose of a writ is to compel the production of a child in court to enable the court to resolve a custody or visitation dispute based on “solely what is for the best interest of the child. Notwithstanding the child’s presence in Florida, no jurisdictional impediment existed that would preclude Family Court from issuing a writ of habeas corpus. Nevertheless it stated that it could not  fault Family Court for its concerns about the potential disruptive impact on the child if it were to issue a writ. Family Court has broad authority to resolve the parties’ dispute” (Matter of Celinette H.H. v. Michelle R., 40 N.Y.3d at 1053, 201 N.Y.S.3d 317, 224 N.E.3d 507 [Rivera, J., dissenting]). Under the circumstances presented, it found it appropriate to remit the matter to Family Court for an evidentiary hearing, on notice to the parties, to determine a workable parenting time solution in the child’s best interests. The child’s personal appearance in court was not required. It reversed so much of the order as dismissed the application; converted the matter to a visitation modification proceeding and remitted to the Family Court for further proceedings not inconsistent with this Court’s decision.

In a footnote the Court stated:” We recognize that the statute states that such a petition may be brought “[w]here a minor child is residing within this state” (Domestic Relations Law § 70[a]), but we eschew a strict reading of the statute (see e.g. Matter of Kassim v. Al–Maliki, 194 A.D.3d 719, 721, 143 N.Y.S.3d 585 [2d Dept. 2021]), and will adhere to the modern view that “the presence of the child in the State is not an absolute prerequisite [to the filing of a petition for a writ of habeas corpus], at least where the disputing adults are subject to the jurisdiction of the court” .

 

           

Where a parent’s relocation initiates the commencement of a custody proceeding resulting in an initial custody determination, strict application of the relocation factors set forth in Matter of Tropea v. Tropea, 87 N.Y.2d 727 (1996) is not required.

 

In Matter of Jesse HH., v. Lindsey II., 2024 WL 5216652 (3d Dept.,2024) after the parties separated in or around 2020, they maintained an informal custody arrangement which had the child in the mother’s care during the week and in the father’s care on weekends. After the mother relocated with the child to Virginia in the fall of 2022, the father filed a petition in Family Court seeking custody. The mother was directed to return the child to New York during the pendency of the proceedings, pursuant to an order to show cause signed in December 2022. The child was returned to New York as directed and resided with the maternal grandparents, while the father continued to exercise parenting time on the weekends. The mother subsequently filed a petition for primary physical custody of the child and permission to relocate. Family Court issued awarded the parties joint legal custody, with primary physical custody granted to the mother in Virginia during the school year and a schedule of parenting time for the father. The Appellate Division affirmed. It held that where, as here, a parent’s relocation initiates the commencement of a custody proceeding resulting in an initial custody determination, strict application of the relocation factors set forth in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996) is not required. Family Court’s paramount concern is the best interests of the child.

 

 

Any time after a petition pursuant to Family Ct Act article 10 is filed, either the petitioner or the attorney for the children may apply for, or Family Court may sua sponte order, a Family Ct Act § 1027[a][iii]) hearing to determine whether judicial intervention is required to protect the child, including a consideration of whether the child should be removed from the care of their parent.

 

In Matter of Ayanna O., 2024 WL 5216655 (3d Dept.,2025) a neglect proceeding, the petitioner sought to temporarily remove the children from the home pursuant to Family Ct Act § 1027. Following a hearing, Family Court found that removal was necessary to avoid imminent risk to the children’s lives or health, removed the children from the mother’s home and placed them in the care and custody of petitioner. The Appellate Division affirmed. It pointed out that at any time after a petition pursuant to Family Ct Act article 10 is filed, either the petitioner or the attorney for the children may apply for, or Family Court may sua sponte order, a hearing to determine whether judicial intervention is required to protect the children’s best interests, including a consideration of whether the children should be removed from the care of their parent (see Family Ct Act § 1027[a][iii]). If, upon such a hearing, the court determines “that removal is necessary to avoid imminent risk to the child[ren]’s li[ves] or health, it shall remove or continue the removal of the child[ren]” (Family Ct Act § 1027[b][I]). In considering a removal application, Family Court “must engage in a balancing test of the imminent risk with the best interests of the child[ren] and, where appropriate, the reasonable efforts made to avoid removal or continuing removal” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 380, 787 N.Y.S.2d 196]; see Family Ct Act § 1027[b][I], [ii];). On appeal, it defers to Family Court’s factual and credibility determinations, and its decision to direct the removal or continued removal of children will be upheld if it is supported by a sound and substantial basis in the record.

In a footnote the court stated that it shared the mother’s concern about the use of a negative inference against a parent who declines to testify at a removal hearing. “Unlike the fact-finding hearing, which represents a culmination of the adjudicatory process, a [removal] hearing occurs at the very beginning of the case, indeed prior to discovery, interviews, investigation by the parent’s attorney, or comprehensive case record analysis. In short, counsel cannot be well prepared, and lacks the ability needed to weigh the pros and cons of client testimony” (Merril Sobie, Prac Commentaries, McKinney’s Cons Laws of NY, Family Ct Act § 1028; contra Matter of Jacob P., 37 A.D.3d 836, 838, 831 N.Y.S.2d 252 [2d Dept. 2007]). Nevertheless, in light of its determination, which it reached without the use of such inference, it did not need to reach the mother’s contention.

 

 

 Where Family Court denied the father’s request for counsel fees, indicating that the mother’s petition had not been completely without merit so as to warrant the imposition of counsel fees, it utilized the incorrect standard when determining this issue.

 

In Matter of Debra YY v Michael XX, --- N.Y.S.3d ----, 2025 WL 14806 (Mem), 2025 N.Y. Slip Op. 00003 (3d Dept., 2025) the Family Court found that the mother had demonstrated a change in circumstances and issued a custody determination granting the mother final decision-making authority and primary physical custody of the child. The court denied the father’s request for counsel fees, indicating that the mother’s petition had not been completely without merit so as to warrant the imposition of counsel fees. The Appellate Division found that Family Court utilized the incorrect standard when determining this issue. Counsel fees may be awarded to a parent seeking to modify or enforce a custody order “as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties” (Domestic Relations Law § 237[b]). The court  erroneously determined the issue based on whether sanctions were warranted. Nevertheless it found that the father was not entitled to counsel fees. In deciding whether to grant an award of counsel fees and in setting the amount of such, a court should consider the totality of the circumstances, including but not limited to the parties’ financial circumstances; the relative merit of the parties’ positions; the time commitment involved; the complexity and difficulty of the matters; the nature of the services provided; counsel’s experience; the results obtained; and the cause and effect of unnecessary delays. The father’s request for counsel fees centered around the purported lack of merit to the mother’s allegations, and, he provided scant information as to his own finances. He failed to provide proof as to the financial circumstances of the parties or most other relevant considerations. In addition, the mother was granted her paramount relief in the form of primary physical custody of the child, demonstrating the merit of her position. It independently reached the same conclusion and similarly denied the father’s request for counsel fees.

 

To suspend payments based upon parental alienation, the moving party must show that the custodian “intentionally orchestrated and encouraged the estrangement of the noncustodian from the child or actively interfered with or deliberately frustrated the noncustodial parent’s visitation rights

           

In Matter of Kelly N., v. Chenango County Department of Social Services on Behalf of Kimberly M., --- N.Y.S.3d ----, 2025 WL 14889 (Mem), 2025 N.Y. Slip Op. 00010 ( 3d Dept.,2025) an child support violation proceeding the mother argued on appeal  that Family Court used an incorrect legal standard to resolve her custodial alienation affirmative defense, necessitating a new hearing. A parent’s duty to support his or her child until the age of 21 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 custodian. To suspend payments based upon parental alienation, the moving party must show that the custodian “intentionally orchestrated and encouraged the estrangement of [the noncustodian] from the child[ ] or ... actively interfered with or deliberately frustrated [the noncustodial parent’s] visitation rights” (Matter of Curley v. Klausen, 110 A.D.3d at 1157, 972 N.Y.S.2d 743; accord Matter of O’Brien v. Rutland, 180 A.D.3d at 1184, 120 N.Y.S.3d 454). In a bench decision following the close of the hearing testimony, Family Court articulated the alienation standard as follows: “the parent alleging that [he or she] shouldn’t have to pay support [due to parental alienation] has to show that, like Superman, they tried and attempted to leap tall buildings in a single bound and swim rivers against the tide and do all the things that they could in order to attempt to keep the relationship going. In other words, part of the burden in these proceedings is not only to establish that there may have been some attempted interference but that [the noncustodial parent] did everything possible to prevent that” (emphasis added). Although Family Court is correct that a parent who does not make efforts to maintain a relationship with his or her child will have a difficult time establishing the affirmative defense of custodial alienation, the exaggerated language articulated by Family Court during its bench decision gives us pause as to whether it held the mother to an unduly harsh standard.1 Out of an abundance of caution, and since the record was sufficiently developed, it found it prudent to exercise our independent fact-finding powers to make a de novo determination and agreed with Family Court that the mother did not establish her custodial alienation affirmative defense.

 

 

Appellate Divison dismissed the appeal from Family Courts temporary order of support. Except for very limited circumstances involving abuse or neglect, no appeal lies as of right from a nondispositional order of Family Court 

 

In  Matter of Lisa S., v. Michael G.,--- N.Y.S.3d ----, 2025 WL 14794, 2025 N.Y. Slip Op. 00006 (3d Dept., 2024) Family Court issue a temporary  order of support requiring the father to make biweekly child support payments of $700. The father asserted the defenses of constructive emancipation and parental alienation, which required the matter to be transferred to Family Court for a fact-finding hearing on those defenses, pursuant to Family Ct Act § 439(a). The court found that the father failed to prove that the subject child had constructively emancipated himself; as such, the child did not forfeit his right to child support. The court ordered that the temporary order of support be given full force and effect and referred the mother’s petition for support back to the Support Magistrate to establish the father’s monthly support obligation. The Appellate Division dismissed the appeal. But for very limited circumstances involving abuse or neglect, no appeal lies as of right from a nondispositional order of Family Court (see Family Ct Act § 1112[a]). Here, the order appealed from was nonfinal; Family Court remanded the matter to the Support Magistrate to calculate the father’s support obligations. Because the father did not seek permission to appeal, the matter was not properly before Its (see Family Ct Act § 1112[a]).

 

 

 

January 1, 2025

 

Court of Appeals

 

 

The recognized methods of authentication, include, but are not limited to, the testimony of a witness who was present at the time of the signing, an admission of authenticity, proof of handwriting, and, through circumstantial evidence. CPLR 4539 (b) does not apply where the documents at issue "were originally created in electronic form." Electronic signatures are statutorily entitled to "the same validity and effect as . . . a signature affixed by hand."

 

In Knight v New York & Presbyt. Hosp., 2024 NY Slip Op 05870 (2024) Defendant Dewitt Rehabilitation and Nursing Center ("Dewitt") moved to enforce a contractual venue provision pursuant to Article 5 of the CPLR. In response, the plaintiff contested the authenticity of the agreements containing the provision, claiming the signatures were forged. The Court of Appeals held that when put in issue, Dewitt was required to establish the authenticity of the agreements but held that Dewitt met its initial burden to do so, and that the plaintiff failed to meet his corresponding burden to demonstrate forgery. The party moving for a change of venue under CPLR 501 was in effect seeking to enforce a contractual provision. For that reason, when put in issue, the proponent of the motion bears the initial burden to establish the authenticity of the writing for purposes of a motion to enforce a contractual venue provision (see Martens v Martens, 284 NY 363, 365 [1940]). This may be done through any of the recognized methods of authentication, including, but not limited to, the testimony of a witness who was present at the time of the signing, an admission of authenticity, proof of handwriting, and, as particularly relevant here, through circumstantial evidence (see Jerome Prince, Richardson on Evidence § 9-103; see also Young v Crescent Coffee, Inc., 222 AD3d 704, 705 [2d Dept 2023]). When the authenticity of a document is put in issue on a motion to change venue pursuant to CPLR article 5, the party relying on the document has the initial burden of establishing its authenticity. The Court noted that the Appellate Division majority erred in relying on CPLR 4539 (b), titled "Reproductions of original," when it suggested that Dewitt should have submitted proof that the electronic signature software used by Dewitt had a protocol to prevent fraud. Even if this provision, found in CPLR article 45 governing admission of evidence, could be said to apply to the authentication of a contract submitted with a change of venue motion, it would be inapplicable here. CPLR 4539 (b) requires "authentica[tion] by competent testimony or affidavit which shall include the manner or method in which tampering or degradation of the reproduction is prevented", but it does not apply where, as with the admission agreements, the documents at issue "were originally created in electronic form" (People v Kangas, 28 NY3d 984, 985-986 [2016] [in considering whether a record was admissible in a criminal trial, the Court held that "CPLR 4539 (b) applies only when a document that originally existed in hard copy form is scanned to store as a digital 'image' of the hard copy document, and then a 'reproduction' of the digital image is printed in the ordinary course of business"]). That the relevant agreements were signed electronically likewise has no bearing on authenticity, as such signatures are statutorily entitled to "the same validity and effect as . . . a signature affixed by hand" (State Technology Law § 304 [2]).

 

Laws of 2024, Ch 638 enacted December 21, 2024 and effective on January 20, 2025 added CPLR 515

 

Laws of 2024, Ch 638 amended the CPLR by adding a new rule 515 to require that

venue in a matrimonial action be in a county in which either party resides or, if there are minor children of the marriage, in the county where one of the parties or one of such children resides.

 

The CPLR was amended by adding a new  rule 515 to read as follows:

 

Rule  515.  Venue in matrimonial actions. (a) This rule applies to all

actions wherein all or part  of  the  relief  granted  is  divorce,  all

actions brought in supreme court for custody or visitation, all applica-

tions  to  modify  a  supreme  court order of custody or visitation, all

actions wherein all or part of the relief granted  is  the  dissolution,

annulment  or  declaration of the nullity of a marriage, all proceedings

to obtain a distribution of marital property following a  foreign  judg-

ment  of divorce, and all post-judgment proceedings following a judgment

of divorce.

 

(b) Notwithstanding anything to the  contrary  in  this  article,  the

place  of  trial  in  an  action subject to subdivision (a) of this rule

shall be in a county in which either party  resides  or,  if  there  are

minor  children  of  the marriage, the place of trial may also be in the

county where one of such children resides; except that where any of  the

addresses of these residences is not a matter of public record, or where

any  of  these addresses is subject to an existing confidentiality order

pursuant to section 254 of the domestic relations law or  section  154-b

of  the family court act, the place of trial designated by the plaintiff

in any action specified in subdivision (a) of this rule may be as speci-

fied in section 509 of this article.

   

(c) In any action specified in subdivision (a) of this rule, the court

may, for  good  cause  shown,  allow  the  trial  to proceed before it,

notwithstanding that venue would not lie pursuant to subdivision (b)  of

this rule. Good cause applications shall be made by motion or order to

show cause. (Laws of 2024, Ch 638, §2),

 

 

This amendment  is designed to prevent plaintiffs from designating venue in distant counties where none of the parties or their children reside pursuant to CPLR § 509 (unless safety concerns warrant keeping an address confidential, in

which case the law  permits CPLR § 509 to still be used to designate venue.

 

Laws of 2024, Ch 638 enacted December 21, 2024 and effective on January 20, 2025 amended CPLR 509

 

 

CPLR 509 was amended to read as follows:

    

§ 509. Venue in county designated. Notwithstanding  any  provision  of

this  article except for rule 515, the place of trial of an action shall

be in the county designated by the plaintiff, unless the place of  trial

is  changed  to  another  county  by order upon motion, or by consent as

provided in subdivision (b) of rule 511 of this article. (Laws of 2024, Ch 638, §1),

 

CPLR § 509 was amended  to provide an exception to the

requirement that, notwithstanding any other provision of the CPLR's

venue article (article 5), the place of trial shall be as designated by

the plaintiff unless it is changed to another county by order upon

motion, or by consent as provided in CPLR rule 511(b). The exception

added is for new proposed rule 515.

 

New rule 515 was added to the CPLR providing for venue in matrimonial actions. Subdivision (a) of this new rule applies to actions wherein all or part of the relief granted is divorce, all actions brought in supreme court for custody or visitation, all applications to modify a supreme court order of custody or visitation, all actions wherein all or part of the relief granted is the dissolution,

annulment or declaration of the nullity of a marriage, all proceedings

to obtain a distribution of marital property following a foreign judg-

ment of divorce, and all post-judgment proceedings following a judgment

of divorce.    

 

Subdivision (b) of new rule 515 provides that, notwithstanding anything to the contrary in article 5 of the CPLR, the place of trial in an

action subject to subdivision (a) shall be in a county in which either

party resides or, if there are minor children of the marriage, the place

of trial may also be in the county where one of such children resides;

except that where any of the addresses of these residences is not a

matter of public record, or where any of these addresses is subject to

an existing confidentiality order, the place of trial designated by the

plaintiff may be as specified in section 509 of article 5.

 

            Subdivision (c) of new rule 515 provides that in any action specified in

subdivision (a), the court may, for good cause shown, allow the trial to

proceed before it, notwithstanding that venue would not lie pursuant to

subdivision (b), and that good cause applications shall be made by

motion or order to show cause.  (2024 NY Legis Memo 638)

 

 

Laws of 2024, Chapter 621 enacted December 21, 2024 amended Family Court Act §1051 (f) (iii) effective January 20, 2025.

 

 

Family Court Act §1051 (f) (iii) was amended to conform its provisions regarding required notifications to respondent parents to the recently enacted changes in the consequences attendant upon reports of child maltreatment. It provides:

 

 (iii) that any report made to  the  state  central  register  of child abuse and maltreatment of allegations  on  which  the  court  makes a finding of abuse or neglect will remain indicated in the register until  ten  years  after  the

eighteenth  birthday  of  the youngest child named in such report unless such finding is vacated or dismissed, and that:

 (A) the respondent will be unable to amend such report in the state central register;

 (B)  if  the  court finding is for neglect, it shall be legally sealed eight years after the report was made unless it is sealed earlier in  an administrative proceeding; and

(C)  the existence of such report, which is not legally sealed, may be

 made known to employers seeking to screen employee or  volunteer  applicants  for positions where the individual   has the potential for regular and substantial contact with children, and     to child care agencies if the respondent  applies  to  become  a  foster parent or adoptive parent. (Laws of 2024, Ch 621, §1),

 

 

Laws of 2020. Ch. 56, Part R amended Social Services Law § 424-a(1)(e)(iv) adding a subparagraph (b) providing that a report of child neglect deemed to be "indicated" (supported by a preponderance of evidence) is automatically sealed from disclosure to potential employers and other licensing and provider agen-

cies performing registry checks if the report is more than eight years

old. Such a report is shielded from disclosure because it is deemed to

be neither "relevant" nor "reasonably related" to an inquiry regarding

whether the subject of the report should be permitted to have contact

with children: (B) Where the subject of the report is not the subject of any indicated report of child abuse and is the subject of a report of child maltreat-

ment where the indication for child maltreatment occurred more than

eight years prior to the date of the inquiry, any such indication of

child maltreatment shall be deemed to be not relevant and reasonably

related to employment. Although indicated SCR reports in both child abuse and neglect cases remain on the registry until the youngest child reaches the age of 18, the protection against use of child neglect reports in excess of eight

years old protects subjects of such reports from serious collateral

consequences in terms of eligibility for day care and other types of

employment involving contact with children.

 

The Family Court Act requires that, when a finding of child abuse or neglect is

made, whether by verdict after a fact-finding hearing or by admission,

the respondent parent must be given notice of the consequences of the

finding and, specifically, the consequences of retention of the report

on the SCR that gave rise to the finding.  Social Services Law §

422(8)(b)(ii)(A) provides that where a finding of child abuse or neglect

is made, there is an "irrebuttable presumption" that the SCR report is

indicated, thus underscoring the importance of providing parents with

accurate information as to the implications of all such findings. This amendment  corrects the wording of Family Court Act § 1051(f)(iii) to conform to the new statute. (2024 Legis Memo 621)

 

 

Laws of 2024, Ch 664 enacted December 21, 2024 and effective on January 20, 2025, and known as the Safe Landings Act amended Family Court Act Sections 249, 255, 355.5, 756-a, 1015-a, 1088, 1089 and 1090 and 358-a of the Social Services Law.

 

Laws of 2024, Ch 664 [1]is known as the "safe landings for youth leaving foster care act" or the "safe landings act". The Safe landings act amended multiple provisions of both the Family Court Act and the Social Services Law to grant the Family Court the authority to adjudicate motions made by certain former foster care youth to enforce Family Court orders that had been made in the best interest of those youth and young adults when they still were in foster care. Youth can bring such motions until they turn twenty-two (22), or after the youth turns twenty-two (22) upon a showing of good cause. [2] Pursuant to its statutory responsibility, the Family Court issues orders on behalf of youth between the ages of eighteen and twenty-one who are in foster care to assist them in successfully transitioning to living independently. However, after a youth leaves foster care, the Family Court Act as interpreted did not allow the Family Court to enforce orders that were valid when made, on the premise that the Family Court loses jurisdiction once a youth turns twenty-one. For example Matter of Donique T., 193 A.D.3d 490 (1st Dept. 2021), held that the Family Court lacked jurisdiction to enforce orders requiring the commissioner of social services and contracting agencies to assist the youth to obtain housing where those orders had not yet been executed by his twenty-first birthday.[3] The Safe landings act is intended to ensure that the Family Court maintains jurisdiction to direct the commissioner of social services and contracting agencies to obey orders existing at the time a youth departs from foster care but that have not yet been executed, including orders to meaningfully assist youth in securing stable housing, thus preventing homelessness. The amendments also serve to ensure that the Family Court's intent in issuing such orders is not thwarted by the failure of the commissioner of social services and contracting agencies to execute them in a timely fashion prior to a youth's twenty-first birthday. [4]

 

Family Court Act § 249

 

Family Court Act § 249 (c) was amended to provide that in proceedings pursuant to Family Court Act §§ 355.5(11), 759-a(j), 1015-a, 1088(d)(1), 1088(d)(ii), and 1089(d)(2) (viii) (C-1), or SSL section 358-a(2-a)(c), the Family Court shall appoint counsel for youth who were formerly in foster care and seek to enforce an order that was made on their behalf while in foster care and before their twenty-first birthday. [5]

 

Family Court Act § 249 was amended by adding a new subdivision (c) to read as follows:

     (c)  In  any  proceeding  under subdivision eleven of section 355.5 of

     this act, subdivision (j) of section seven hundred fifty-six-a  of  this

     act,  section  one  thousand  fifteen-a  of this act, subdivision (d) of

     section one thousand eighty-eight of this act, clause (C-1) of  subpara-

     graph (viii) of paragraph two of subdivision (d) of section one thousand

     eighty-nine  of  this  act, and/or paragraph (c) of subdivision two-a of

     section three hundred fifty-eight-a of  the  social  services  law,  the

    court shall appoint an attorney to represent a youth who was formerly in

    foster  care  and  is  seeking  to enforce an order made on their behalf

    before their twenty-first birthday while they were still in foster care,

    if independent legal representation is not available to such youth. Such

    representation shall continue  for  all  further  proceedings  thereon,

    including all motions and any related appeals.[6]

  

 

Family Court Act § 255

 

Family Court Act § 255, relating to cooperation of officials

and organizations, was amended by designating the existing provision of the statute as subdivision (a) and adding subdivision (b), providing that orders

directing a social services district and/or a social services official as defined in Social Services Law § 2, and/or an authorized agency, as defined by Social Services Law § 371(10), to perform an action for the purposes of assisting a youth who had been placed in foster care, shall be enforceable after such youth is discharged from foster care pursuant to Family Court Act § 1088(d). [7]

Family Court Act § 255 was amended to read as follows:

    

  §  255.  Cooperation  of officials and organizations. (a) It is hereby

     6  made the duty of, and the family court or a judge thereof may order, any

     7  state, county, municipal and school district  officer  and  employee  to

     8  render  such  assistance  and cooperation as shall be within [his] their

     9  legal authority, as may be required, to further the objects of this  act

    10  provided,  however, that with respect to a school district an order made

    11  pursuant to this section shall be limited to requiring  the  performance

    12  of the duties imposed upon the school district and board of education or

    13  trustees  thereof  pursuant  to  sections four thousand five, forty-four

    14  hundred two and forty-four hundred four of the education law, to review,

    15  evaluate, recommend, and determine the appropriate special  services  or

    16  programs  necessary  to meet the needs of a handicapped child, but shall

    17  not require the provisions of a specific special service or program, and

    18  such order shall be made only where it appears to  the  court  or  judge

    19  that  adequate  administrative  procedure  to require the performance of

    20  such duties is not available. It is hereby made  the  duty  of  and  the

    21  family court or judge thereof may order, any agency or other institution

    22  to render such information, assistance and cooperation as shall be with-

    23  in  its  legal authority concerning a child who is or shall be under its

    24  care, treatment, supervision or custody as may be  required  to  further

    25  the objects of this act. The court is authorized to seek the cooperation

    26  of,  and  may  use,  within  its  authorized appropriation therefor, the

    27  services of all societies or organizations, public  or  private,  having

    28  for  their object the protection or aid of children or families, includ-

    29  ing family counselling services, to  the  end  that  the  court  may  be

    30  assisted in every reasonable way to give the children and families with-

    31  in  its  jurisdiction  such care, protection and assistance as will best

    32  enhance their welfare.

 

    33  (b) An order of the family court or a judge thereof directing a social

    34  services district and/or social services official, as defined in section

    35  two of the social services law, and/or an authorized agency, as  defined

    36  by  subdivision  ten  of section three hundred seventy-one of the social

    37  services law, to perform an action for the purpose of assisting a  youth

    38  placed  in  foster  care,  shall  remain enforceable after such youth is

    39  discharged from foster care pursuant to subdivision (d) of  section  one

    40  thousand eighty-eight of this act.[8]

 

 

Family Court Act § 355.5

 

Family Court Act § 355.5 was amended adding subdivision (11) which

provides that where placement will end prior to a subsequent permanency

hearing due to the youth reaching age 21 and/or failing to consent to

continuation of placement, court orders made pursuant to this section

shall be enforceable against the social services district and/or the

social services official as defined in Social Services Law §2, and/or the authorized agency, as defined by Social Services Law § 371(10). [9] The amendment further provides in paragraph (a) of subdivision (11) that the Family Court shall maintain jurisdiction over a case for the purpose of hearing a motion for contempt pursuant to Judiciary Law §753 and Family Court Act §  115 against the commissioner of social services and/or authorized agency with whom the respondent was placed. Such a motion may be brought by a youth formerly placed with the commissioner of social services or the office of children and family services pursuant to Family Court Act §  353.3 and who resided in a foster care setting or non-secure facility. [10] The amendment additionally provides in paragraph (b) of subdivision (11) that jurisdiction for the commencement of such a motion for contempt shall continue until the youth turns twenty-two (22), and beyond the 22nd birthday for good cause, including, but not limited to, failure to obtain stable housing. The court's jurisdiction would continue until pending motion(s) and any related appeals are resolved. Stable housing, for the purposes of this section, shall mean housing where the youth can reasonably expect to reside for at least twelve (12) months and shall not include homeless shelter, temporary accommodations with family or friends, a single-room occupancy hotel, any other congregate living arrangement which houses more than ten (10) unrelated persons, or ongoing placement in foster care after the youth's twenty-first birthday according to a local district policy or practice, among other things. [11]

 

Family Court Act § 355.5

 

Family Court Act § 355.5 was amended by adding subdivision (11) which provides that where placement will end prior to a subsequent permanency hearing due to the youth reaching age 21 and/or failing to consent to continuation of placement, court orders made pursuant to this section shall be enforceable against the social services district and/or the social services official as defined in Social Services Law §2, and/or the authorized agency, as defined by Social Services law §371(10).[12]

 

Family Court Act § 355.5 was amended by adding a new  subdivision 11 to read as follows:

   

    11. Where placement will end prior to a subsequent permanency  hearing

    44  due to the respondent's age and/or failure to consent to continuation of

    45  placement, court orders made pursuant to this section shall be enforcea-

    46  ble  against  the agency with whom such respondent was placed after such

    47  respondent was discharged from care.

    48    (a) The court shall maintain jurisdiction over a case for purposes  of

    49  hearing  a motion for contempt against the agency with whom the respond-

    50  ent was placed pursuant to section  seven  hundred  fifty-three  of  the

    51  judiciary  law.  Such  a  motion  may be brought by a respondent who was

    52  formerly placed with a commissioner of social services or the office  of

    53  children  and family services pursuant to section 353.3 of this part and

    54  resided in a foster home or non-secure facility.   In  addition  to  any

    55  other  defense,  it shall be an affirmative defense to a motion filed in

    56  accordance with this paragraph that compliance with the court order  was

     1  not  possible  due solely to the youth's refusal to consent to continua-

     2  tion of foster care placement where such  refusal  is  documented  in  a

     3  signed,  notarized  letter executed by the youth after consultation with

     4  their attorney for the child.

     5    (b)  (i) The court shall maintain jurisdiction over a motion described

     6  in paragraph (a) of this subdivision if such motion is filed before  the

     7  respondent  attains  the  age  of  twenty-two,  or after such respondent

     8  attains the age of twenty-two and upon a showing of  good  cause,  which

     9  may  include,  but  shall  not be limited to, a failure to obtain stable

    10  housing.  The court's jurisdiction over any such motion  shall  continue

    11  until such motion and any related appeals are finally resolved.

    12    (ii)  For  the purposes of this paragraph, "stable housing" shall mean

    13  housing where the youth  respondent  shall  be  reasonably  expected  to

    14  reside  for  at  least twelve months; provided, however, that a homeless

    15  shelter, temporary accommodations with family or friends, a  single-room

    16  occupancy hotel, or any other congregate living arrangement which houses

    17  more  than  ten unrelated persons, or remaining in a foster care setting

    18  pursuant to a local social services district policy  or  practice  after

    19  the  respondent  attains  the age of twenty-one, shall not be considered

    20  stable housing; provided, however,  that  discharge  into  a  congregate

    21  living arrangement licensed by the office of mental health or the office

    22  for people with developmental disabilities, in accordance with a youth's

    23  permanency plan or discharge plan, to receive residential services which

    24  are  reasonably expected to continue for at least twelve months, includ-

    25  ing a congregate living arrangement which houses more than ten unrelated

    26  persons, shall constitute stable housing.[13]

 

Family Court Act § 756-a

 

Family Court Act 756-a was amended by adding a new subdivision (j) which provides that where placement will end prior to a subsequent permanency hearing due to the youth reaching the age of 21 and/or declining to consent to continuation of placement, court orders made pursuant to that section shall be enforceable against the social services district and/or the social services official as defined in SSL Sections 2, and/or an authorized agency, as defined by SSL Section 371(10).[14] The amendment further provides under paragraph (i) of subdivision (j) that the Court shall maintain jurisdiction over a case for purposes ofhearing a motion for contempt against a social services district and/or

a social services official as defined in SSL Section 2, and/or an

authorized foster care agency, as defined by SSL Section 371(10), pursu-

ant to Judiciary Law section 753 and FCA 115. Such a motion may be

brought by a youth who was formerly placed pursuant to FCA

Sections 756 or 756-a.[15]  The amendment additionally authorizes the Family Court in paragraph (ii) of subdivision (j) to adjudicate a motion filed before the respondent turns twenty-two (22), or after the respondent turns twenty-two (22) for good cause, which shall include, but not be limited to, failure to

obtain stable housing. The court's jurisdiction would continue until all

pending motion(s) and any related appeals are resolved. Stable housing,

for the purposes of this section, shall mean housing where the youth can

reasonably expect to reside for at least twelve (12) months, and shall

not include: homeless shelter, temporary accommodations with family or

friends, a single-room occupancy hotel, any other congregate living

arrangement which houses more than ten (10) unrelated persons, or ongo-

ing placement in foster care after the youth's twenty-first birthday

according to a local district policy or practice, among other things.[16]

 

 Family Court Act § 756-a was amended by adding a new  subdivision (j) to read as follows:

    29    (j)  Where placement will end prior to a subsequent permanency hearing

    30  due to the respondent's age and/or failure to consent to continuation of

    31  placement, court orders made pursuant to this section shall be enforcea-

    32  ble against the social services district and/or  social  services  offi-

    33  cial,  as  defined in section two of the social services law, and/or the

    34  authorized agency, as  defined  by  subdivision  ten  of  section  three

    35  hundred  seventy-one of the social services law, with whom such respond-

    36  ent was placed after such respondent was discharged from care.

    37    (i) The court shall maintain jurisdiction over a case for purposes  of

    38  hearing  a motion for contempt against the agency with whom the respond-

    39  ent was placed pursuant to section  seven  hundred  fifty-three  of  the

    40  judiciary  law.  Such a motion may be brought by such respondent who was

    41  formerly placed pursuant to section seven hundred fifty-six of this part

    42  or this section.   In addition to any other  defense,  it  shall  be  an

    43  affirmative  defense to a motion filed in accordance with this paragraph

    44  that compliance with the court order was not possible due solely to  the

    45  youth's  refusal  to  consent  to  continuation of foster care placement

    46  where such refusal is documented in a signed, notarized letter  executed

    47  by the youth after consultation with their attorney for the child.

    48    (ii) (A) The court shall maintain jurisdiction over a motion described

    49  in  paragraph (i) of this subdivision if such motion is filed before the

    50  respondent attains the age  of  twenty-two,  or  after  such  respondent

    51  attains  the  age  of twenty-two and upon a showing of good cause, which

    52  may include, but shall not be limited to, a  failure  to  obtain  stable

    53  housing.    The court's jurisdiction over any such motion shall continue

    54  until such motion and any related appeals are finally resolved.

    55    (B) For the purposes of this paragraph, "stable  housing"  shall  mean

    56  housing  where  the  youth  respondent  shall  be reasonably expected to

     1  reside for at least twelve months; provided, however,  that  a  homeless

     2  shelter,  temporary accommodations with family or friends, a single-room

     3  occupancy hotel, or any other congregate living arrangement which houses

     4  more  than  ten unrelated persons, or remaining in a foster care setting

     5  pursuant to a local social services district policy  or  practice  after

     6  the  respondent  attains  the age of twenty-one, shall not be considered

     7  stable housing; provided, however,  that  discharge  into  a  congregate

     8  living arrangement licensed by the office of mental health or the office

     9  for people with developmental disabilities, in accordance with a youth's

    10  permanency plan or discharge plan, to receive residential services which

    11  are  reasonably expected to continue for at least twelve months, includ-

    12  ing a congregate living arrangement which houses more than ten unrelated

    13  persons, shall constitute stable housing.[17]

 

   Family Court Act §1015-a

 

   Family Court Act §1015-a  relating to court ordered services, was amended to provide that an order directing such services for a youth placed in foster care shall be enforceable after the child is discharged from foster care pursuant to FCA Section 1088(d).[18]

 

   Family Court Act §1015-a was amended to read as follows:

    16    §  1015-a.  Court-ordered services. In any proceeding under this arti-

    17  cle, the court may order  a  social  services  official  to  provide  or

    18  arrange  for  the  provision  of services or assistance to the child and

    19  [his or her] their family to facilitate the protection of the child, the

    20  rehabilitation of the family and, as appropriate, the discharge  of  the

    21  child  from  foster  care. Such order shall not include the provision of

    22  any service or assistance to the child and [his  or  her]  their  family

    23  which is not authorized or required to be made available pursuant to the

    24  comprehensive  annual services program plan then in effect. In any order

    25  issued pursuant to this section the court may require a social  services

    26  official to make periodic progress reports to the court on the implemen-

    27  tation  of  such  order.  Nothing in such order shall preclude any party

    28  from exercising its rights under this article or any other provision  of

    29  law  relating  to  the  return of the care and custody of the child by a

    30  social services official to the parent, parents or  guardian.  Violation

    31  of  such  order shall be subject to punishment pursuant to section seven

    32  hundred fifty-three  of  the  judiciary  law.  Such  order  relating  to

    33  services  for  a  child placed in foster care shall be enforceable after

    34  such child is discharged from foster care pursuant to subdivision (d) of

    35  section one thousand eighty-eight of this act.

 

Family Court Act § 1088

 

Family Court Act § 1088 was amended by adding subdivision (d).  Para-

graph (i) of subdivision (d) provides that the Court shall maintain

jurisdiction over a case for purposes of hearing a motion for contempt

pursuant to Judiciary Law Section 753 and FCA Section 115 against a

social services district and/or a social services official as defined in

SSL Section 2, and/or an authorized foster care agency, as defined by

SSL Section 371(10), brought by a youth on whose behalf a valid but as

yet unexecuted order was made against a social services district or

official and/or an authorized agency, where such youth has been

discharged from foster care due to either:  1) the youth's failure to

consent to continuation of placement to the custody of the local commis-

sioner of social services or other officer, board or•department author-

ized to receive children as public charges; or 2) the youth reaching the

age of twenty-one,[19]

 

Paragraph (ii) of subdivision (d) provides that the Family Court shall

have jurisdiction to adjudicate such a motion filed before the former

foster care youth turns twenty-two (22), or after the youth turns twen-

ty-two (22) for good cause shown. Good cause may be established by,

among other things, a failure to obtain stable housing. The court's

jurisdiction would continue until pending motion(s) and any related

appeals are resolved. Stable housing, for the purposes of this section,

shall mean housing where the youth shall be reasonably expected to be

for at least twelve (12) months) Homeless shelter, temporary accommo-

dations with family or friends, a single-room occupancy hotel, any other

congregate living arrangement which houses more than ten (10) unrelated

persons, or ongoing placement in foster care after a youth's twenty-

first birthday according to local district policy or practice, among

other things, shall not be deemed stable housing.[20]

 

Family Court Act § 1088 was amended by adding  a  new subdivision (d) to read as follows:

    38    (d)  (i)  Subject to the provisions of paragraph (ii) of this subdivi-

    39  sion, the court  shall  also  maintain  jurisdiction  over  a  case  for

    40  purposes  of  hearing a motion brought by a former foster care youth, as

    41  defined in article ten-B of this act, or  by  a  young  adult  who  left

    42  foster  care upon or after attaining the age of twenty-one, for contempt

    43  pursuant to section seven hundred  fifty-three  of  the  judiciary  law,

    44  against  a  social services district and/or social services official, as

    45  defined in section two of the social services law, and/or an  authorized

    46  agency,  as defined in subdivision ten of section three hundred seventy-

    47  one of the social services law.  In addition to any  other  defense,  it

    48  shall  be  an  affirmative  defense to a motion filed in accordance with

    49  this paragraph that compliance with the court order was not possible due

    50  solely to the youth's refusal to consent to continuation of foster  care

    51  placement where such refusal is documented in a signed, notarized letter

    52  executed  by  the  youth  after consultation with their attorney for the

    53  child.

    54    (ii) (A) The court shall maintain jurisdiction over a motion described

    55  in paragraph (i) of this subdivision if such motion is filed before  the

    56  former  foster  care youth or young adult attains the age of twenty-two,

     1  or after the former foster care youth or young adult attains the age  of

     2  twenty-two  and  upon  a  showing  of good cause, which may include, but

     3  shall not be limited to, a  failure  to  obtain  stable  housing.    The

     4  court's  jurisdiction  over  any  such  motion shall continue until such

     5  motion and any related appeals are finally resolved.

     6    (B) For the purposes of this paragraph, "stable  housing"  shall  mean

     7  housing  where  the  youth shall be reasonably expected to reside for at

     8  least twelve months; provided, however, that a homeless shelter,  tempo-

     9  rary  accommodations  with  family  or  friends, a single-room occupancy

    10  hotel, or any other congregate living arrangement which houses more than

    11  ten unrelated persons, or remaining in a foster care setting pursuant to

    12  a local social services district policy  or  practice  after  the  youth

    13  attains  the  age of twenty-one, shall not be considered stable housing;

    14  provided, however, that discharge into a congregate  living  arrangement

    15  licensed  by  the  office of mental health or the office for people with

    16  developmental disabilities, in accordance with a youth's permanency plan

    17  or discharge plan, to receive residential services which are  reasonably

    18  expected  to continue for at least twelve months, including a congregate

    19  living arrangement which houses more than ten unrelated  persons,  shall

    20  constitute stable housing.[21]

 

Family Court Act § 1089

 

Family Court Act § 1089 as to permanency hearings, was amended by adding sub-subparagraph (d)(2)(viii) (C-1) to subdivision (d), providing

that where placement will be ending prior to another permanency hearing

due to the subject child turning twenty-one (21) years old, and/or failure to consent to continuation of placement, the Court may include orders against a social services district and/or a social services official as defined in SSL Section 2, and/or an authorized agency, as defined by SSL Section 371(10), for provision of assistance or services to the subject child and shall be enforceable after discharge from foster care pursuant to Family Court Act Section 1088(d).[22]

 

 Family Court Act 1089 (d) (2) (viii) was amended by adding a new clause (C-1)  to read as follows:

    (C-1) Where placement will be ending prior to a subsequent permanency

    hearing due to the child attaining twenty-one years of  age,  the  court

    may direct the social services district and/or the social services offi-

    cial,  as  defined  by section two of the social services law, and/or an

    authorized agency, as  defined  by  subdivision  ten  of  section  three

    hundred seventy-one of the social services law, to provide assistance or

    services  to  such child and such orders shall be enforceable after such

    child is discharged from foster care  pursuant  to  subdivision  (d)  of

    section one thousand eighty-eight of this article.[23]

 

 

Family Court Act § 1090

 

Family Court Act § 1090, as to representation of parties provides that if an attorney for the child has been appointed by the family court in a proceeding pursuant to this article or section three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four, or three hundred eighty-four-b of the social services laws, or article ten, ten-B or ten-C of this act, the appointment of the attorney for the child shall continue without further court order or appointment, unless another appointment of an attorney for the child has been made by the court, until the child is discharged from placement and all orders regarding supervision, protection or services have expired. The attorney for the child shall also represent the child without further order or appointment in any proceeding under article ten-B or ten-C of this act. The attorney for the child shall also represent the child without further order or appointment in any proceeding brought by a youth who was formerly in foster care to enforce orders that were made prior to discharge from care when the child was between the ages of eighteen and twenty-one. All notices, reports and motions required by law shall be provided to such attorney. The attorney for the child may be relieved of their representation upon application to the court for termination of the appointment. Upon approval of the application, the court shall immediately appoint another attorney to whom all notices, reports, and motions required by law shall be provided.[24]

 

Family Court Act § 1090 (a) was amended  to  read  as  follows:

 

    (a)  If  an  attorney  for  the child has been appointed by the family

    court in a proceeding pursuant to this article or section three  hundred

    fifty-eight-a,  three hundred eighty-three-c, three hundred eighty-four,

    or three hundred eighty-four-b of the social services  law,  or  article

    ten, ten-B or ten-C of this act, the appointment of the attorney for the

    child  shall continue without further court order or appointment, unless

    another appointment of an attorney for the child has been  made  by  the

    court,  until  the  child  is  discharged  from placement and all orders

    regarding supervision, protection or services have expired. The attorney

    for the child shall also represent the child without  further  order  or

    appointment in any proceedings under article ten-B or ten-C of this act.

    The  attorney  for  the  child  shall  also  represent the child without

    further order or appointment in any proceeding brought by  a  youth  who

    was  formerly  in  foster care to enforce orders that were made prior to

    such child's discharge from care when such child was between the ages of

   eighteen and twenty-one. All notices, reports and  motions  required  by

    law  shall  be provided to such attorney. The attorney for the child may

    be relieved of [his or her] their representation upon application to the

    court for termination of the appointment. Upon approval of the  applica-

    tion,  the  court shall immediately appoint another attorney to whom all

    notices, reports, and motions required by law shall be provided.[25]

 

 

Social Services Law §358-a

 

Social Services Law §358-a subdivision (2-a) was amended by adding

paragraph (c). Subparagraph (i) of paragraph (c) provides that the Court

shall also maintain jurisdiction over a case for purposes of hearing a

motion for contempt pursuant to Judiciary Law § 753 and Family Court Act

§ 115 against the social services district and/or social services

official as defined in Social Services Law §2, and/or an authorized agency, as

defined by Social Services Law § 371(10), brought by a youth who was formerly in

foster care and was discharged from foster care due to either: 1) the

youth's failure to consent to continuation of placement in the custody

of the local commissioner of social services or other officer, board or

department authorized to receive children as public charges; or 2)

reaching the age of twenty-one (21). [26]

Subparagraph (ii) of paragraph (c) provides that the Family Court shall

have jurisdiction to adjudicate such a motion filed before the former

foster care youth turns twenty-two (22), or after the youth turns twen-

ty-two (22) upon a showing of good cause, which includes, but is not

limited to, failure to obtain stable housing. The court's jurisdiction

would continue until pending motion(s) and any related appeals are

resolved. Stable housing, for the purposes of this section, shall mean

housing where the youth shall be reasonably expected to be for at least

twelve months, and shall not include homeless shelter, temporary accom-

modations with family or friends, a single-room occupancy hotel, any

other congregate living arrangement which houses more than ten unrelated

persons, or ongoing placement in foster care after the youth's twenty-

first birthday according to a local district policy or practice, among

other things. [27]

 

Social Services Law 358-a, subdivision 2-a was amended by adding a new paragraph (c) to read as follows:

 

     3    (c)  (i)  Subject to the provisions of subparagraph (ii) of this para-

     4  graph, the court shall also maintain jurisdiction over a  case  for  the

     5  purposes  of  hearing  and  deciding a motion brought by a former foster

     6  care youth, as defined in article ten-B of the family court act, or by a

     7  young adult who left foster care upon or  after  attaining  the  age  of

     8  twenty-one,  for  contempt pursuant to section seven hundred fifty-three

     9  of the judiciary law against a social services  district  and/or  social

    10  services  official, as defined by section two of this chapter, and/or an

    11  authorized agency, as  defined  by  subdivision  ten  of  section  three

    12  hundred  seventy-one of this chapter.  In addition to any other defense,

    13  it shall be an affirmative defense to a motion filed in accordance  with

    14  this paragraph that compliance with the court order was not possible due

    15  solely  to the youth's refusal to consent to continuation of foster care

    16  placement where such refusal is documented in a signed, notarized letter

    17  executed by the youth after consultation with  their  attorney  for  the

    18  child.

    19    (ii) (A) The court shall maintain jurisdiction over a motion described

    20  in subparagraph (i) of this paragraph if such motion is filed before the

    21  former  foster  care youth or young adult attains the age of twenty-two,

    22  or after the former foster care youth or young adult attains the age  of

    23  twenty-two  and  upon  a  showing  of good cause, which may include, but

    24  shall not be limited to, a  failure  to  obtain  stable  housing.    The

    25  court's  jurisdiction  over  any  such  motion shall continue until such

    26  motion and any related appeals are finally resolved.

    27    (B) For the purposes of this paragraph, "stable  housing"  shall  mean

    28  housing  where  the  youth  respondent  shall  be reasonably expected to

    29  reside for at least twelve months; provided, however,  that  a  homeless

    30  shelter,  temporary accommodations with family or friends, a single-room

    31  occupancy hotel, or any other congregate living arrangement which houses

    32  more than ten unrelated persons, or remaining in a foster  care  setting

    33  pursuant  to  a  local social services district policy or practice after

    34  the youth attains the age of twenty-one, shall not be considered  stable

    35  housing;  provided,  however,  that  discharge  into a congregate living

    36  arrangement licensed by the office of mental health or  the  office  for

    37  people  with  developmental  disabilities,  in accordance with a youth's

    38  permanency plan or discharge plan, to receive residential services which

    39  are reasonably expected to continue for at least twelve months,  includ-

    40  ing a congregate living arrangement which houses more than ten unrelated

    41  persons, shall constitute stable housing.[28]

 

 

 

Laws of 2024, Chapter 621 enacted December 21, 2024 amended Family Court Act §1051 (f) (iii) effective January 20, 2025.

 

 

Family Court Act §1051 (f) (iii) was amended to conform its provisions regarding required notifications to respondent parents to the recently enacted changes in the consequences attendant upon reports of child maltreatment. It provides:

 

 (iii) that any report made to  the  state  central  register  of child abuse and maltreatment of allegations  on  which  the  court  makes a finding of abuse or neglect will remain indicated in the register until  ten  years  after  the

eighteenth  birthday  of  the youngest child named in such report unless such finding is vacated or dismissed, and that:

 (A) the respondent will be unable to amend such report in the state central register;

 (B)  if  the  court finding is for neglect, it shall be legally sealed eight years after the report was made unless it is sealed earlier in  an administrative proceeding; and

(C)  the existence of such report, which is not legally sealed, may be

 made known to employers seeking to screen employee or  volunteer  applicants  for positions where the individual   has the potential for regular and substantial contact with children, and     to child care agencies if the respondent  applies  to  become  a  foster parent or adoptive parent. (Laws of 2024, Ch 621, §1),

 

 

Laws of 2020. Ch. 56, Part R amended Social Services Law § 424-a(1)(e)(iv) adding a subparagraph (b) providing that a report of child neglect deemed to be "indicated" (supported by a preponderance of evidence) is automatically sealed from disclosure to potential employers and other licensing and provider agen-

cies performing registry checks if the report is more than eight years

old. Such a report is shielded from disclosure because it is deemed to

be neither "relevant" nor "reasonably related" to an inquiry regarding

whether the subject of the report should be permitted to have contact

with children: (B) Where the subject of the report is not the subject of any indicated report of child abuse and is the subject of a report of child maltreat-

ment where the indication for child maltreatment occurred more than

eight years prior to the date of the inquiry, any such indication of

child maltreatment shall be deemed to be not relevant and reasonably

related to employment. Although indicated SCR reports in both child abuse and neglect cases remain on the registry until the youngest child reaches the age of 18, the protection against use of child neglect reports in excess of eight

years old protects subjects of such reports from serious collateral

consequences in terms of eligibility for day care and other types of

employment involving contact with children.

 

The Family Court Act requires that, when a finding of child abuse or neglect is

made, whether by verdict after a fact-finding hearing or by admission,

the respondent parent must be given notice of the consequences of the

finding and, specifically, the consequences of retention of the report

on the SCR that gave rise to the finding.  Social Services Law §

422(8)(b)(ii)(A) provides that where a finding of child abuse or neglect

is made, there is an "irrebuttable presumption" that the SCR report is

indicated, thus underscoring the importance of providing parents with

accurate information as to the implications of all such findings. This amendment  corrects the wording of Family Court Act § 1051(f)(iii) to conform to the new statute. (2024 Legis Memo 621)

 

                     

Laws of 2024, Ch 638, enacted December 21,2024 and effective on January 20, 2025,  amended CPLR 509 and added CPLR 515

 

Laws of 2024, Ch 638 amended the CPLR by adding amending CPLR 509 and adding  new rule 515 to require that venue in a matrimonial action be in a county in which either party resides or, if there are minor children of the marriage, in the county where one of the parties or one of such children resides.

 

CPLR 509 was amended to read as follows:

    

§ 509. Venue in county designated. Notwithstanding  any  provision  of

this  article except for rule 515, the place of trial of an action shall

be in the county designated by the plaintiff, unless the place of  trial

is  changed  to  another  county  by order upon motion, or by consent as

provided in subdivision (b) of rule 511 of this article. (Laws of 2024, Ch 638, §1),

 

The CPLR was amended by adding a new  rule 515 to read as follows:

 

Rule  515.  Venue in matrimonial actions. (a) This rule applies to all

actions wherein all or part  of  the  relief  granted  is  divorce,  all

actions brought in supreme court for custody or visitation, all applica-

tions  to  modify  a  supreme  court order of custody or visitation, all

actions wherein all or part of the relief granted  is  the  dissolution,

annulment  or  declaration of the nullity of a marriage, all proceedings

to obtain a distribution of marital property following a  foreign  judg-

ment  of divorce, and all post-judgment proceedings following a judgment

of divorce.

 

(b) Notwithstanding anything to the  contrary  in  this  article,  the

place  of  trial  in  an  action subject to subdivision (a) of this rule

shall be in a county in which either party  resides  or,  if  there  are

minor  children  of  the marriage, the place of trial may also be in the

county where one of such children resides; except that where any of  the

addresses of these residences is not a matter of public record, or where

any  of  these addresses is subject to an existing confidentiality order

pursuant to section 254 of the domestic relations law or  section  154-b

of  the family court act, the place of trial designated by the plaintiff

in any action specified in subdivision (a) of this rule may be as speci-

fied in section 509 of this article.

   

(c) In any action specified in subdivision (a) of this rule, the court

may, for  good  cause  shown,  allow  the  trial  to proceed before it,

notwithstanding that venue would not lie pursuant to subdivision (b)  of

this rule. Good cause applications shall be made by motion or order to

show cause. (Laws of 2024, Ch 638, §2),

 

 

 

This amendment  is designed to prevent plaintiffs from designating venue in distant counties where none of the parties or their children reside pursuant to CPLR § 509 (unless safety concerns warrant keeping an address confidential, in

which case the law  permits CPLR § 509 to still be used to designate venue.

 

CPLR § 509 was amended  to provide an exception to the

requirement that, notwithstanding any other provision of the CPLR's

venue article (article 5), the place of trial shall be as designated by

the plaintiff unless it is changed to another county by order upon

motion, or by consent as provided in CPLR rule 511(b). The exception

added is for new proposed rule 515.

 

New rule 515 was added to the CPLR providing for venue in matrimonial actions. Subdivision (a) of this new rule applies to actions wherein all or part of the relief granted is divorce, all actions brought in supreme court for custody or visitation, all applications to modify a supreme court order of custody or visitation, all actions wherein all or part of the relief granted is the dissolution,

annulment or declaration of the nullity of a marriage, all proceedings

to obtain a distribution of marital property following a foreign judg-

ment of divorce, and all post-judgment proceedings following a judgment

of divorce.    

 

Subdivision (b) of new rule 515 provides that, notwithstanding anything to the contrary in article 5 of the CPLR, the place of trial in an

action subject to subdivision (a) shall be in a county in which either

party resides or, if there are minor children of the marriage, the place

of trial may also be in the county where one of such children resides;

except that where any of the addresses of these residences is not a

matter of public record, or where any of these addresses is subject to

an existing confidentiality order, the place of trial designated by the

plaintiff may be as specified in section 509 of article 5.

 

            Subdivision (c) of new rule 515 provides that in any action specified in

subdivision (a), the court may, for good cause shown, allow the trial to

proceed before it, notwithstanding that venue would not lie pursuant to

subdivision (b), and that good cause applications shall be made by

motion or order to show cause.  (2024 NY Legis Memo 638)

 

 

 

 

Laws of 2024, Ch 664 enacted December 21, 2024 and effective on January 20, 2025, and known as the Safe Landings Act amended Family Court Act Sections 249, 255, 355.5, 756-a, 1015-a, 1088, 1089 and 1090 and 358-a of the Social Services Law.

 

Laws of 2024, Ch 664 [29]is known as the "safe landings for youth leaving foster care act" or the "safe landings act". The Safe landings act amended multiple provisions of both the Family Court Act and the Social Services Law to grant the Family Court the authority to adjudicate motions made by certain former foster care youth to enforce Family Court orders that had been made in the best interest of those youth and young adults when they still were in foster care. Youth can bring such motions until they turn twenty-two (22), or after the youth turns twenty-two (22) upon a showing of good cause. [30] Pursuant to its statutory responsibility, the Family Court issues orders on behalf of youth between the ages of eighteen and twenty-one who are in foster care to assist them in successfully transitioning to living independently. However, after a youth leaves foster care, the Family Court Act as interpreted did not allow the Family Court to enforce orders that were valid when made, on the premise that the Family Court loses jurisdiction once a youth turns twenty-one. For example Matter of Donique T., 193 A.D.3d 490 (1st Dept. 2021), held that the Family Court lacked jurisdiction to enforce orders requiring the commissioner of social services and contracting agencies to assist the youth to obtain housing where those orders had not yet been executed by his twenty-first birthday.[31] The Safe landings act is intended to ensure that the Family Court maintains jurisdiction to direct the commissioner of social services and contracting agencies to obey orders existing at the time a youth departs from foster care but that have not yet been executed, including orders to meaningfully assist youth in securing stable housing, thus preventing homelessness. The amendments also serve to ensure that the Family Court's intent in issuing such orders is not thwarted by the failure of the commissioner of social services and contracting agencies to execute them in a timely fashion prior to a youth's twenty-first birthday. [32]

 

Family Court Act § 249

 

Family Court Act § 249 (c) was amended to provide that in proceedings pursuant to Family Court Act §§ 355.5(11), 759-a(j), 1015-a, 1088(d)(1), 1088(d)(ii), and 1089(d)(2) (viii) (C-1), or SSL section 358-a(2-a)(c), the Family Court shall appoint counsel for youth who were formerly in foster care and seek to enforce an order that was made on their behalf while in foster care and before their twenty-first birthday. [33]

 

Family Court Act § 249 was amended by adding a new subdivision (c) to read as follows:

     (c)  In  any  proceeding  under subdivision eleven of section 355.5 of

     this act, subdivision (j) of section seven hundred fifty-six-a  of  this

     act,  section  one  thousand  fifteen-a  of this act, subdivision (d) of

     section one thousand eighty-eight of this act, clause (C-1) of  subpara-

     graph (viii) of paragraph two of subdivision (d) of section one thousand

     eighty-nine  of  this  act, and/or paragraph (c) of subdivision two-a of

     section three hundred fifty-eight-a of  the  social  services  law,  the

    court shall appoint an attorney to represent a youth who was formerly in

    foster  care  and  is  seeking  to enforce an order made on their behalf

    before their twenty-first birthday while they were still in foster care,

    if independent legal representation is not available to such youth. Such

    representation shall continue  for  all  further  proceedings  thereon,

    including all motions and any related appeals.[34]

  

 

Family Court Act § 255

 

Family Court Act § 255, relating to cooperation of officials

and organizations, was amended by designating the existing provision of the statute as subdivision (a) and adding subdivision (b), providing that orders

directing a social services district and/or a social services official as defined in Social Services Law § 2, and/or an authorized agency, as defined by Social Services Law § 371(10), to perform an action for the purposes of assisting a youth who had been placed in foster care, shall be enforceable after such youth is discharged from foster care pursuant to Family Court Act § 1088(d). [35]

Family Court Act § 255 was amended to read as follows:

    

  §  255.  Cooperation  of officials and organizations. (a) It is hereby

     6  made the duty of, and the family court or a judge thereof may order, any

     7  state, county, municipal and school district  officer  and  employee  to

     8  render  such  assistance  and cooperation as shall be within [his] their

     9  legal authority, as may be required, to further the objects of this  act

    10  provided,  however, that with respect to a school district an order made

    11  pursuant to this section shall be limited to requiring  the  performance

    12  of the duties imposed upon the school district and board of education or

    13  trustees  thereof  pursuant  to  sections four thousand five, forty-four

    14  hundred two and forty-four hundred four of the education law, to review,

    15  evaluate, recommend, and determine the appropriate special  services  or

    16  programs  necessary  to meet the needs of a handicapped child, but shall

    17  not require the provisions of a specific special service or program, and

    18  such order shall be made only where it appears to  the  court  or  judge

    19  that  adequate  administrative  procedure  to require the performance of

    20  such duties is not available. It is hereby made  the  duty  of  and  the

    21  family court or judge thereof may order, any agency or other institution

    22  to render such information, assistance and cooperation as shall be with-

    23  in  its  legal authority concerning a child who is or shall be under its

    24  care, treatment, supervision or custody as may be  required  to  further

    25  the objects of this act. The court is authorized to seek the cooperation

    26  of,  and  may  use,  within  its  authorized appropriation therefor, the

    27  services of all societies or organizations, public  or  private,  having

    28  for  their object the protection or aid of children or families, includ-

    29  ing family counselling services, to  the  end  that  the  court  may  be

    30  assisted in every reasonable way to give the children and families with-

    31  in  its  jurisdiction  such care, protection and assistance as will best

    32  enhance their welfare.

 

    33    (b) An order of the family court or a judge thereof directing a social

    34  services district and/or social services official, as defined in section

    35  two of the social services law, and/or an authorized agency, as  defined

    36  by  subdivision  ten  of section three hundred seventy-one of the social

    37  services law, to perform an action for the purpose of assisting a  youth

    38  placed  in  foster  care,  shall  remain enforceable after such youth is

    39  discharged from foster care pursuant to subdivision (d) of  section  one

    40  thousand eighty-eight of this act.[36]

 

 

Family Court Act § 355.5

 

Family Court Act § 355.5 was amended adding subdivision (11) which

provides that where placement will end prior to a subsequent permanency

hearing due to the youth reaching age 21 and/or failing to consent to

continuation of placement, court orders made pursuant to this section

shall be enforceable against the social services district and/or the

social services official as defined in Social Services Law §2, and/or the authorized agency, as defined by Social Services Law § 371(10). [37] The amendment further provides in paragraph (a) of subdivision (11) that the Family Court shall maintain jurisdiction over a case for the purpose of hearing a motion for contempt pursuant to Judiciary Law §753 and Family Court Act §  115 against the commissioner of social services and/or authorized agency with whom the respondent was placed. Such a motion may be brought by a youth formerly placed with the commissioner of social services or the office of children and family services pursuant to Family Court Act §  353.3 and who resided in a foster care setting or non-secure facility. [38] The amendment additionally provides in paragraph (b) of subdivision (11) that jurisdiction for the commencement of such a motion for contempt shall continue until the youth turns twenty-two (22), and beyond the 22nd birthday for good cause, including, but not limited to, failure to obtain stable housing. The court's jurisdiction would continue until pending motion(s) and any related appeals are resolved. Stable housing, for the purposes of this section, shall mean housing where the youth can reasonably expect to reside for at least twelve (12) months and shall not include homeless shelter, temporary accommodations with family or friends, a single-room occupancy hotel, any other congregate living arrangement which houses more than ten (10) unrelated persons, or ongoing placement in foster care after the youth's twenty-first birthday according to a local district policy or practice, among other things. [39]

 

Family Court Act § 355.5

 

Family Court Act § 355.5 was amended by adding subdivision (11) which provides that where placement will end prior to a subsequent permanency hearing due to the youth reaching age 21 and/or failing to consent to continuation of placement, court orders made pursuant to this section shall be enforceable against the social services district and/or the social services official as defined in Social Services Law §2, and/or the authorized agency, as defined by Social Services law §371(10).[40]

 

Family Court Act § 355.5 was  amended by adding a new  subdivision 11 to read as follows:

   

    11. Where placement will end prior to a subsequent permanency  hearing

    44  due to the respondent's age and/or failure to consent to continuation of

    45  placement, court orders made pursuant to this section shall be enforcea-

    46  ble  against  the agency with whom such respondent was placed after such

    47  respondent was discharged from care.

    48    (a) The court shall maintain jurisdiction over a case for purposes  of

    49  hearing  a motion for contempt against the agency with whom the respond-

    50  ent was placed pursuant to section  seven  hundred  fifty-three  of  the

    51  judiciary  law.  Such  a  motion  may be brought by a respondent who was

    52  formerly placed with a commissioner of social services or the office  of

    53  children  and family services pursuant to section 353.3 of this part and

    54  resided in a foster home or non-secure facility.   In  addition  to  any

    55  other  defense,  it shall be an affirmative defense to a motion filed in

    56  accordance with this paragraph that compliance with the court order  was

     1  not  possible  due solely to the youth's refusal to consent to continua-

     2  tion of foster care placement where such  refusal  is  documented  in  a

     3  signed,  notarized  letter executed by the youth after consultation with

     4  their attorney for the child.

     5    (b)  (i) The court shall maintain jurisdiction over a motion described

     6  in paragraph (a) of this subdivision if such motion is filed before  the

     7  respondent  attains  the  age  of  twenty-two,  or after such respondent

     8  attains the age of twenty-two and upon a showing of  good  cause,  which

     9  may  include,  but  shall  not be limited to, a failure to obtain stable

    10  housing.  The court's jurisdiction over any such motion  shall  continue

    11  until such motion and any related appeals are finally resolved.

    12    (ii)  For  the purposes of this paragraph, "stable housing" shall mean

    13  housing where the youth  respondent  shall  be  reasonably  expected  to

    14  reside  for  at  least twelve months; provided, however, that a homeless

    15  shelter, temporary accommodations with family or friends, a  single-room

    16  occupancy hotel, or any other congregate living arrangement which houses

    17  more  than  ten unrelated persons, or remaining in a foster care setting

    18  pursuant to a local social services district policy  or  practice  after

    19  the  respondent  attains  the age of twenty-one, shall not be considered

    20  stable housing; provided, however,  that  discharge  into  a  congregate

    21  living arrangement licensed by the office of mental health or the office

    22  for people with developmental disabilities, in accordance with a youth's

    23  permanency plan or discharge plan, to receive residential services which

    24  are  reasonably expected to continue for at least twelve months, includ-

    25  ing a congregate living arrangement which houses more than ten unrelated

    26  persons, shall constitute stable housing.[41]

 

Family Court Act § 756-a

 

Family Court Act 756-a was amended by adding a new subdivision (j) which provides that where placement will end prior to a subsequent permanency hearing due to the youth reaching the age of 21 and/or declining to consent to continuation of placement, court orders made pursuant to that section shall be enforceable against the social services district and/or the social services official as defined in SSL Sections 2, and/or an authorized agency, as defined by SSL Section 371(10).[42] The amendment further provides under paragraph (i) of subdivision (j) that the Court shall maintain jurisdiction over a case for purposes ofhearing a motion for contempt against a social services district and/or

a social services official as defined in SSL Section 2, and/or an

authorized foster care agency, as defined by SSL Section 371(10), pursu-

ant to Judiciary Law section 753 and FCA 115. Such a motion may be

brought by a youth who was formerly placed pursuant to FCA

Sections 756 or 756-a.[43]  The amendment additionally authorizes the Family Court in paragraph (ii) of subdivision (j) to adjudicate a motion filed before the respondent turns twenty-two (22), or after the respondent turns twenty-two (22) for good cause, which shall include, but not be limited to, failure to

obtain stable housing. The court's jurisdiction would continue until all

pending motion(s) and any related appeals are resolved. Stable housing,

for the purposes of this section, shall mean housing where the youth can

reasonably expect to reside for at least twelve (12) months, and shall

not include: homeless shelter, temporary accommodations with family or

friends, a single-room occupancy hotel, any other congregate living

arrangement which houses more than ten (10) unrelated persons, or ongo-

ing placement in foster care after the youth's twenty-first birthday

according to a local district policy or practice, among other things.[44]

 

 Family Court Act § 756-a was amended by adding a new  subdivision (j) to read as follows:

    29    (j)  Where placement will end prior to a subsequent permanency hearing

    30  due to the respondent's age and/or failure to consent to continuation of

    31  placement, court orders made pursuant to this section shall be enforcea-

    32  ble against the social services district and/or  social  services  offi-

    33  cial,  as  defined in section two of the social services law, and/or the

    34  authorized agency, as  defined  by  subdivision  ten  of  section  three

    35  hundred  seventy-one of the social services law, with whom such respond-

    36  ent was placed after such respondent was discharged from care.

    37    (i) The court shall maintain jurisdiction over a case for purposes  of

    38  hearing  a motion for contempt against the agency with whom the respond-

    39  ent was placed pursuant to section  seven  hundred  fifty-three  of  the

    40  judiciary  law.  Such a motion may be brought by such respondent who was

    41  formerly placed pursuant to section seven hundred fifty-six of this part

    42  or this section.   In addition to any other  defense,  it  shall  be  an

    43  affirmative  defense to a motion filed in accordance with this paragraph

    44  that compliance with the court order was not possible due solely to  the

    45  youth's  refusal  to  consent  to  continuation of foster care placement

    46  where such refusal is documented in a signed, notarized letter  executed

    47  by the youth after consultation with their attorney for the child.

    48    (ii) (A) The court shall maintain jurisdiction over a motion described

    49  in  paragraph (i) of this subdivision if such motion is filed before the

    50  respondent attains the age  of  twenty-two,  or  after  such  respondent

    51  attains  the  age  of twenty-two and upon a showing of good cause, which

    52  may include, but shall not be limited to, a  failure  to  obtain  stable

    53  housing.    The court's jurisdiction over any such motion shall continue

    54  until such motion and any related appeals are finally resolved.

    55    (B) For the purposes of this paragraph, "stable  housing"  shall  mean

    56  housing  where  the  youth  respondent  shall  be reasonably expected to

     1  reside for at least twelve months; provided, however,  that  a  homeless

     2  shelter,  temporary accommodations with family or friends, a single-room

     3  occupancy hotel, or any other congregate living arrangement which houses

     4  more  than  ten unrelated persons, or remaining in a foster care setting

     5  pursuant to a local social services district policy  or  practice  after

     6  the  respondent  attains  the age of twenty-one, shall not be considered

     7  stable housing; provided, however,  that  discharge  into  a  congregate

     8  living arrangement licensed by the office of mental health or the office

     9  for people with developmental disabilities, in accordance with a youth's

    10  permanency plan or discharge plan, to receive residential services which

    11  are  reasonably expected to continue for at least twelve months, includ-

    12  ing a congregate living arrangement which houses more than ten unrelated

    13  persons, shall constitute stable housing.[45]

 

   Family Court Act §1015-a

 

   Family Court Act §1015-a  relating to court ordered services, was amended to provide that an order directing such services for a youth placed in foster care shall be enforceable after the child is discharged from foster care pursuant to FCA Section 1088(d).[46]

 

   Family Court Act §1015-a was amended to read as follows:

    16    §  1015-a.  Court-ordered services. In any proceeding under this arti-

    17  cle, the court may order  a  social  services  official  to  provide  or

    18  arrange  for  the  provision  of services or assistance to the child and

    19  [his or her] their family to facilitate the protection of the child, the

    20  rehabilitation of the family and, as appropriate, the discharge  of  the

    21  child  from  foster  care. Such order shall not include the provision of

    22  any service or assistance to the child and [his  or  her]  their  family

    23  which is not authorized or required to be made available pursuant to the

    24  comprehensive  annual services program plan then in effect. In any order

    25  issued pursuant to this section the court may require a social  services

    26  official to make periodic progress reports to the court on the implemen-

    27  tation  of  such  order.  Nothing in such order shall preclude any party

    28  from exercising its rights under this article or any other provision  of

    29  law  relating  to  the  return of the care and custody of the child by a

    30  social services official to the parent, parents or  guardian.  Violation

    31  of  such  order shall be subject to punishment pursuant to section seven

    32  hundred fifty-three  of  the  judiciary  law.  Such  order  relating  to

    33  services  for  a  child placed in foster care shall be enforceable after

    34  such child is discharged from foster care pursuant to subdivision (d) of

    35  section one thousand eighty-eight of this act.

 

Family Court Act § 1088

 

Family Court Act § 1088 was amended by adding subdivision (d).  Para-

graph (i) of subdivision (d) provides that the Court shall maintain

jurisdiction over a case for purposes of hearing a motion for contempt

pursuant to Judiciary Law Section 753 and FCA Section 115 against a

social services district and/or a social services official as defined in

SSL Section 2, and/or an authorized foster care agency, as defined by

SSL Section 371(10), brought by a youth on whose behalf a valid but as

yet unexecuted order was made against a social services district or

official and/or an authorized agency, where such youth has been

discharged from foster care due to either:  1) the youth's failure to

consent to continuation of placement to the custody of the local commis-

sioner of social services or other officer, board or•department author-

ized to receive children as public charges; or 2) the youth reaching the

age of twenty-one,[47]

 

Paragraph (ii) of subdivision (d) provides that the Family Court shall

have jurisdiction to adjudicate such a motion filed before the former

foster care youth turns twenty-two (22), or after the youth turns twen-

ty-two (22) for good cause shown. Good cause may be established by,

among other things, a failure to obtain stable housing. The court's

jurisdiction would continue until pending motion(s) and any related

appeals are resolved. Stable housing, for the purposes of this section,

shall mean housing where the youth shall be reasonably expected to be

for at least twelve (12) months) Homeless shelter, temporary accommo-

dations with family or friends, a single-room occupancy hotel, any other

congregate living arrangement which houses more than ten (10) unrelated

persons, or ongoing placement in foster care after a youth's twenty-

first birthday according to local district policy or practice, among

other things, shall not be deemed stable housing.[48]

 

Family Court Act § 1088 was amended by adding  a  new subdivision (d) to read as follows:

    38    (d)  (i)  Subject to the provisions of paragraph (ii) of this subdivi-

    39  sion, the court  shall  also  maintain  jurisdiction  over  a  case  for

    40  purposes  of  hearing a motion brought by a former foster care youth, as

    41  defined in article ten-B of this act, or  by  a  young  adult  who  left

    42  foster  care upon or after attaining the age of twenty-one, for contempt

    43  pursuant to section seven hundred  fifty-three  of  the  judiciary  law,

    44  against  a  social services district and/or social services official, as

    45  defined in section two of the social services law, and/or an  authorized

    46  agency,  as defined in subdivision ten of section three hundred seventy-

    47  one of the social services law.  In addition to any  other  defense,  it

    48  shall  be  an  affirmative  defense to a motion filed in accordance with

    49  this paragraph that compliance with the court order was not possible due

    50  solely to the youth's refusal to consent to continuation of foster  care

    51  placement where such refusal is documented in a signed, notarized letter

    52  executed  by  the  youth  after consultation with their attorney for the

    53  child.

    54    (ii) (A) The court shall maintain jurisdiction over a motion described

    55  in paragraph (i) of this subdivision if such motion is filed before  the

    56  former  foster  care youth or young adult attains the age of twenty-two,

     1  or after the former foster care youth or young adult attains the age  of

     2  twenty-two  and  upon  a  showing  of good cause, which may include, but

     3  shall not be limited to, a  failure  to  obtain  stable  housing.    The

     4  court's  jurisdiction  over  any  such  motion shall continue until such

     5  motion and any related appeals are finally resolved.

     6    (B) For the purposes of this paragraph, "stable  housing"  shall  mean

     7  housing  where  the  youth shall be reasonably expected to reside for at

     8  least twelve months; provided, however, that a homeless shelter,  tempo-

     9  rary  accommodations  with  family  or  friends, a single-room occupancy

    10  hotel, or any other congregate living arrangement which houses more than

    11  ten unrelated persons, or remaining in a foster care setting pursuant to

    12  a local social services district policy  or  practice  after  the  youth

    13  attains  the  age of twenty-one, shall not be considered stable housing;

    14  provided, however, that discharge into a congregate  living  arrangement

    15  licensed  by  the  office of mental health or the office for people with

    16  developmental disabilities, in accordance with a youth's permanency plan

    17  or discharge plan, to receive residential services which are  reasonably

    18  expected  to continue for at least twelve months, including a congregate

    19  living arrangement which houses more than ten unrelated  persons,  shall

    20  constitute stable housing.[49]

 

Family Court Act § 1089

 

Family Court Act § 1089 as to permanency hearings, was amended by adding sub-subparagraph (d)(2)(viii) (C-1) to subdivision (d), providing

that where placement will be ending prior to another permanency hearing

due to the subject child turning twenty-one (21) years old, and/or failure to consent to continuation of placement, the Court may include orders against a social services district and/or a social services official as defined in SSL Section 2, and/or an authorized agency, as defined by SSL Section 371(10), for provision of assistance or services to the subject child and shall be enforceable after discharge from foster care pursuant to Family Court Act Section 1088(d).[50]

 

 Family Court Act 1089 (d) (2) (viii) was amended by adding a new clause (C-1)  to read as follows:

    24    (C-1)  Where placement will be ending prior to a subsequent permanency

    25  hearing due to the child attaining twenty-one years of  age,  the  court

    26  may direct the social services district and/or the social services offi-

    27  cial,  as  defined  by section two of the social services law, and/or an

    28  authorized agency, as  defined  by  subdivision  ten  of  section  three

    29  hundred seventy-one of the social services law, to provide assistance or

    30  services  to  such child and such orders shall be enforceable after such

    31  child is discharged from foster care  pursuant  to  subdivision  (d)  of

    32  section one thousand eighty-eight of this article.[51]

 

 

 

Family Court Act § 1090

 

Family Court Act § 1090, as to representation of parties provides that if an attorney for the child has been appointed by the family court in a proceeding pursuant to this article or section three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four, or three hundred eighty-four-b of the social services laws, or article ten, ten-B or ten-C of this act, the appointment of the attorney for the child shall continue without further court order or appointment, unless another appointment of an attorney for the child has been made by the court, until the child is discharged from placement and all orders regarding supervision, protection or services have expired. The attorney for the child shall also represent the child without further order or appointment in any proceeding under article ten-B or ten-C of this act. The attorney for the child shall also represent the child without further order or appointment in any proceeding brought by a youth who was formerly in foster care to enforce orders that were made prior to discharge from care when the child was between the ages of eighteen and twenty-one. All notices, reports and motions required by law shall be provided to such attorney. The attorney for the child may be relieved of their representation upon application to the court for termination of the appointment. Upon approval of the application, the court shall immediately appoint another attorney to whom all notices, reports, and motions required by law shall be provided.[52]

 

Family Court Act § 1090 (a) was amended  to  read  as  follows:

 

    36    (a)  If  an  attorney  for  the child has been appointed by the family

    37  court in a proceeding pursuant to this article or section three  hundred

    38  fifty-eight-a,  three hundred eighty-three-c, three hundred eighty-four,

    39  or three hundred eighty-four-b of the social services  law,  or  article

    40  ten, ten-B or ten-C of this act, the appointment of the attorney for the

    41  child  shall continue without further court order or appointment, unless

    42  another appointment of an attorney for the child has been  made  by  the

    43  court,  until  the  child  is  discharged  from placement and all orders

    44  regarding supervision, protection or services have expired. The attorney

    45  for the child shall also represent the child without  further  order  or

    46  appointment in any proceedings under article ten-B or ten-C of this act.

    47  The  attorney  for  the  child  shall  also  represent the child without

    48  further order or appointment in any proceeding brought by  a  youth  who

    49  was  formerly  in  foster care to enforce orders that were made prior to

    50  such child's discharge from care when such child was between the ages of

    51  eighteen and twenty-one. All notices, reports and  motions  required  by

    52  law  shall  be provided to such attorney. The attorney for the child may

    53  be relieved of [his or her] their representation upon application to the

    54  court for termination of the appointment. Upon approval of the  applica-

    55  tion,  the  court shall immediately appoint another attorney to whom all

    56  notices, reports, and motions required by law shall be provided.[53]

 

 

Social Services Law §358-a

 

Social Services Law §358-a subdivision (2-a) was amended by adding

paragraph (c). Subparagraph (i) of paragraph (c) provides that the Court

shall also maintain jurisdiction over a case for purposes of hearing a

motion for contempt pursuant to Judiciary Law § 753 and Family Court Act

§ 115 against the social services district and/or social services

official as defined in Social Services Law §2, and/or an authorized agency, as

defined by Social Services Law § 371(10), brought by a youth who was formerly in

foster care and was discharged from foster care due to either: 1) the

youth's failure to consent to continuation of placement in the custody

of the local commissioner of social services or other officer, board or

department authorized to receive children as public charges; or 2)

reaching the age of twenty-one (21). [54]

Subparagraph (ii) of paragraph (c) provides that the Family Court shall

have jurisdiction to adjudicate such a motion filed before the former

foster care youth turns twenty-two (22), or after the youth turns twen-

ty-two (22) upon a showing of good cause, which includes, but is not

limited to, failure to obtain stable housing. The court's jurisdiction

would continue until pending motion(s) and any related appeals are

resolved. Stable housing, for the purposes of this section, shall mean

housing where the youth shall be reasonably expected to be for at least

twelve months, and shall not include homeless shelter, temporary accom-

modations with family or friends, a single-room occupancy hotel, any

other congregate living arrangement which houses more than ten unrelated

persons, or ongoing placement in foster care after the youth's twenty-

first birthday according to a local district policy or practice, among

other things. [55]

 

Social Services Law 358-a, subdivision 2-a was amended by adding a new paragraph (c) to read as follows:

 

     3    (c)  (i)  Subject to the provisions of subparagraph (ii) of this para-

     4  graph, the court shall also maintain jurisdiction over a  case  for  the

     5  purposes  of  hearing  and  deciding a motion brought by a former foster

     6  care youth, as defined in article ten-B of the family court act, or by a

     7  young adult who left foster care upon or  after  attaining  the  age  of

     8  twenty-one,  for  contempt pursuant to section seven hundred fifty-three

     9  of the judiciary law against a social services  district  and/or  social

    10  services  official, as defined by section two of this chapter, and/or an

    11  authorized agency, as  defined  by  subdivision  ten  of  section  three

    12  hundred  seventy-one of this chapter.  In addition to any other defense,

    13  it shall be an affirmative defense to a motion filed in accordance  with

    14  this paragraph that compliance with the court order was not possible due

    15  solely  to the youth's refusal to consent to continuation of foster care

    16  placement where such refusal is documented in a signed, notarized letter

    17  executed by the youth after consultation with  their  attorney  for  the

    18  child.

    19    (ii) (A) The court shall maintain jurisdiction over a motion described

    20  in subparagraph (i) of this paragraph if such motion is filed before the

    21  former  foster  care youth or young adult attains the age of twenty-two,

    22  or after the former foster care youth or young adult attains the age  of

    23  twenty-two  and  upon  a  showing  of good cause, which may include, but

    24  shall not be limited to, a  failure  to  obtain  stable  housing.    The

    25  court's  jurisdiction  over  any  such  motion shall continue until such

    26  motion and any related appeals are finally resolved.

    27    (B) For the purposes of this paragraph, "stable  housing"  shall  mean

    28  housing  where  the  youth  respondent  shall  be reasonably expected to

    29  reside for at least twelve months; provided, however,  that  a  homeless

    30  shelter,  temporary accommodations with family or friends, a single-room

    31  occupancy hotel, or any other congregate living arrangement which houses

    32  more than ten unrelated persons, or remaining in a foster  care  setting

    33  pursuant  to  a  local social services district policy or practice after

    34  the youth attains the age of twenty-one, shall not be considered  stable

    35  housing;  provided,  however,  that  discharge  into a congregate living

    36  arrangement licensed by the office of mental health or  the  office  for

    37  people  with  developmental  disabilities,  in accordance with a youth's

    38  permanency plan or discharge plan, to receive residential services which

    39  are reasonably expected to continue for at least twelve months,  includ-

    40  ing a congregate living arrangement which houses more than ten unrelated

    41  persons, shall constitute stable housing.[56]

 

 This act takes effect on the thirtieth day after it became a law.[57]

 

 

 

Laws of 2024, Ch 671 amended, effective December 21, 2024, the family court act, the domestic relations law and the general business law, in relation to surrogacy programs and agreements to make technical corrections to Article 5-C of the Family Court Act, section 123(2) (a) of the Domestic Relations Law and to Article 44 of the General Business Law. (NY Legis Memo 671 (2024),2024 Sess. Law News of N.Y. Ch. 671 (A. 4921-C)

 

Additions are indicated by Text; deletions by Text.

 

Family Court Act §581-202 was amended by Laws of 2024, Ch 671, § 1, effective December 21, 2024 to read as follows:

§ 581–102. Definitions

 

(a) “Assisted reproduction” means a method of causing pregnancy other than sexual intercourse and includes but is not limited to:

 

1. intrauterine or vaginal insemination;

 

2. donation of gametes;

 

3. donation of embryos;

 

4. in vitro fertilization and transfer of embryos; and

 

5. intracytoplasmic sperm injection.

 

(b) “Child” means a born individual of any age whose parentage may be determined under this act or other law.

 

(c) “Compensation” means payment of any valuable consideration in excess of reasonable medical and ancillary costs.

 

(d) “Donor” means an individual who does not intend to be a parent who produces gametes and provides them to another person, other than the individual’s spouse, for use in assisted reproduction. The term does not include a person who is a parent under part three of this article. Donor also includes an individual who had dispositional control of an embryo or gametes who then transfers dispositional control and releases all present and future parental and inheritance rights and obligations to a resulting child.

 

(e) “Embryo” means a cell or group of cells containing a diploid complement of chromosomes or group of such cells, not a gamete or gametes, that has the potential to develop into a live born human being if transferred into the body of a person under conditions in which gestation may be reasonably expected to occur.

 

(f) “Embryo transfer” means all medical and laboratory procedures that are necessary to effectuate the transfer of an embryo into the uterine cavity.

 

(g) “Gamete” means a cell containing a haploid complement of DNA that has the potential to form an embryo when combined with another gamete. Sperm and eggs shall be considered gametes. A human gamete used or intended for reproduction may not contain nuclear DNA that has been deliberately altered, or nuclear DNA from one human combined with the cytoplasm or cytoplasmic DNA of another human being.

 

(h) “Health care practitioner” means an individual licensed or certified under title eight of the education law, or a similar law of another state or country, acting within his or her scope of practice.

 

(i) “Independent escrow agent” means someone other than the parties to a surrogacy agreement and their attorneys. An independent escrow agent can, but need not, be a surrogacy program, provided such surrogacy program is owned or managed by an attorney licensed to practice law in the state of New York. If such independent escrow agent is not an attorney owned surrogacy program, it shall be licensed, bonded and insured.

 

(i) “Surrogacy agreement” is an agreement between at least one intended parent and a person acting as surrogate intended to result in a live birth where the child will be the legal child of the intended parents.

 

(j) “In vitro fertilization” means the formation of a human embryo outside the human body.

 

(k) “Intended parent” is an individual who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction or a surrogacy agreement, provided he or she meets the requirements of this article.

 

(l) “Parent” as used in this article means an individual with a parent-child relationship created or recognized under this act or other law.

 

(m) “Participant” is an individual who either provides a gamete that is used in assisted reproduction, is an intended parent, is a person acting as surrogate, or is the spouse of an intended parent or person acting as surrogate.

 

(n) “Person acting as surrogate” means an adult person, not an intended parent, who enters into a surrogacy agreement to bear a child who will be the legal child of the intended parent or parents so long as the person acting as surrogate has not provided the egg used to conceive the resulting child.

 

(k) “Health care practitioner” means an individual licensed or certified under title eight of the education law, or a similar law of another state or country, acting within his or her scope of practice.

 

(l) “Intended parent” is an individual who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction or a surrogacy agreement provided he or she meets the requirements of this article.

 

(m) “In vitro fertilization” means the formation of a human embryo outside the human body.

 

(n) “Parent” as used in this article means an individual with a parent-child relationship created or recognized under this act or other law.

 

(o) “Participant” is an individual who either: provides a gamete that is used in assisted reproduction, is an intended parent, is a person acting as surrogate, or is the spouse of an intended parent or person acting as surrogate.

 

(p) (o) “Record” means information inscribed in a tangible medium or stored in an electronic or other medium that is retrievable in perceivable form.

 

(q) (p) “Retrieval” means the procurement of eggs or sperm from a gamete provider.

 

(r) (q) “Spouse” means an individual married to another, or who has a legal relationship entered into under the laws of the United States or of any state, local or foreign jurisdiction, which is substantially equivalent to a marriage, including a civil union or domestic partnership.

 

(s) (r) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

 

(s) “Surrogacy agreement” means an agreement between at least one intended parent and a person acting as surrogate intended to result in a live birth where the child will be the legal child of the intended parents.

 

(t) “Transfer” means the placement of an embryo or gametes into the body of a person with the intent to achieve pregnancy and live birth.

 

(

 

Family Court Act §581–202 was amended by Laws of 2024, Ch 671, § 2, effective December 21, 2024 to read as follows:

§ 581–202. Proceeding for judgment of parentage of a child conceived through assisted reproduction

(a) A proceeding for a judgment of parentage with respect to a child conceived through assisted reproduction may be commenced:

 

(1) if the an intended parent or child resides in New York state, in the county where the intended parent resides any time after pregnancy is achieved or in the county where the child was born or resides or in the county where the birth is intended to occur; or

 

(2) if the neither an intended parent and nor the  child do not reside in New York state, up to ninety days after the birth of the child in the county where the child was born.

 

(b) The petition for a judgment of parentage must be verified.

 

(c) Where a petition includes the following truthful the court finds the following statements in the petition to be true, the court shall adjudicate the intended parent or parents to be the parent or parents of the child without the need for additional proceedings or documentation:

 

(1) a statement that an intended parent or child has been a resident of the state for at least six months, or if an intended parent or child is not a New York state resident, that the child will be or was born in the New York state within ninety days of filing; and

 

(2) a statement from the gestating intended parent that the gestating intended parent became pregnant as a result of assisted reproduction; and

 

(3) in cases where there is a non-gestating intended parent, a statement from the gestating intended parent and non-gestating intended parent that the non-gestating intended parent consented to assisted reproduction pursuant to section 581–304 of this article; and

 

(4) proof of any donor’s donative intent.

 

The court may, in its discretion, dispense with testimony to establish the truthfulness of the statements.

 

(d) The following shall be deemed sufficient proof of a donor’s donative intent for purposes of this section:

 

(1) in the case of an anonymous donor or where gametes or embryos have previously been released to a gamete or embryo storage facility or were donated in the presence of a health care practitioner, either:

 

(i) a statement or documentation from the gamete or embryo storage facility or health care practitioner stating or demonstrating that such gametes or embryos were anonymously donated or had previously been released; or

 

(ii) a record from the gamete or embryo donor or donors evidencing intent to release the gametes or embryos; or

 

(iii) clear and convincing evidence that the gamete or embryo donor intended to donate gametes or embryos anonymously or intended to release such gametes or embryos to a gamete or embryo storage facility or health care practitioner; or donors confirmed, prior to donation, that the donor or donors would have no parental or proprietary interest in the gametes or embryos;

 

(2) in the case of a donation from a known donor, either: a. where the gametes or embryos were not released to a gamete or embryo storage facility or donated in the presence of a health care practitioner, either:

 

(i) a record from the gamete or embryo donor acknowledging the donation and confirming that the donor has or donors shall have no parental or proprietary interest in the gametes or embryos. The record shall be signed by the gestating intended parent or parents and the gamete or embryo donor. The record may be, but is not required to be, signed or donors:

 

(i) (A) before a notary public, or

 

(ii) (B) before two witnesses who are not the intended parents, or

 

(iii) (C) before a health care practitioner; or

 

b. (ii) clear and convincing evidence that the gamete or embryo donor or donors agreed, prior to conception the gametes or embryos being used for assisted reproduction, with the gestating parent that the donor has or donors would have no parental or proprietary interest in the gametes or embryos.

 

(3) Except for those agreements executed in compliance with section 581–306 of this article, this subdivision shall not apply where the person providing the gametes or embryos is the spouse of the intended parent.

 

(e)(1) In the absence of evidence pursuant to subparagraphs (i) and (ii) of paragraph one and subparagraph (i) of paragraph two of this subdivision (d) of this section, notice shall be given to the donor at least twenty days prior to the date set for the proceeding to determine the existence of donative intent by delivery of a copy of the petition and notice pursuant to section three hundred eight of the civil practice law and rules. If an intended parent or an intended parent’s spouse is not a petitioner, such notice shall also be given to such person who shall be a necessary party unless the intended parent proceeded without the participation of their spouse in compliance with subdivision (b) of section 581–305 or section 581–306 of this article. Upon a showing to the court, by affidavit or otherwise, on or before the date of the proceeding or within such further time as the court may allow, that personal service cannot be effected at the donor’s last known address or addresses of the donor or donors, and/or the non-petitioning intended parent, if any, with reasonable effort, notice may be given, without prior court order therefore, at least twenty days prior to the proceeding by registered or certified mail directed to the donor’s such last known address or addresses. Notice by publication shall not be required to be given to a donor anyone entitled to notice pursuant to the provisions of this section.

 

(2) Notwithstanding the above, where there is evidence that sperm is provided under the supervision of a health care practitioner to someone other than the sperm provider’s intimate partner or spouse without a record of the sperm provider’s intent to parent, notice is not required.

 

(f) In cases not covered by subdivision (c) of this section, the court shall adjudicate the parentage of the child consistent with part three of this article.

 

(g) Where the requirements of subdivision (c) of this section are met or where the court finds the intended parent or parents to be a parent under subdivision (e) (f) of this section, the court shall issue a judgment of parentage:

 

(1) declaring, that the intended parent or parents to be the legal parent or parents of the child immediately upon the birth of the child, the intended parent or parents is or are the legal parent or parents of the child; and

 

(2) ordering the intended parent or parents to assume responsibility for the maintenance and support of the child immediately upon the birth of the child; and

 

(3) if there is a donor or donors, ordering that the any donor is not a parent of the child; and

 

(4) ordering that:

 

(i) Pursuant The hospital birth registrar shall report the parentage of the child on the record of live birth in conformity with the judgment of parentage, if the judgment of parentage is issued before the birth of the child; and

 

(ii) If a change to the child’s birth certificate is necessitated by the judgment of parentage, then pursuant to section two hundred fifty-four of the judiciary law, the clerk of the court shall transmit to the state commissioner of health, or for a person born in New York city, to the commissioner of health of the city of New York, on a form prescribed by the commissioner, a written notification of such entry together with such other facts as may assist in identifying the birth record of the person whose parentage was in issue and, if such person whose parentage has been determined is under eighteen years of age, the clerk shall also transmit forthwith to the registry operated by the department of social services pursuant to section three hundred seventy-two-c of the social services law a notification of such determination; and

 

(ii) (iii) Pursuant to section forty-one hundred thirty-eight of the public health law and NYC Public Health Code section 207.05 that upon receipt of a judgment of parentage the local registrar where a child is born will report the parentage of the child to the appropriate department of health in conformity with the court order. If an original birth certificate has already been issued, the appropriate department of health will amend the birth certificate in an expedited manner and seal the previously issued birth certificate except that it may be rendered accessible to the child at eighteen years of age or the legal parent or parents; and

 

(5) if the judgment of parentage is issued prior to the birth of the child, ordering the petitioner or petitioners, within fourteen days of such birth, to provide the court with notification thereof, together with such other facts as may assist in identifying the birth record of the child whose parentage was in issue. Such notification shall be in writing on a form to be prescribed by the chief administrator of the courts. The court shall thereafter issue an amended judgment of parent-age that includes the child’s name as it appears on the child’s birth certificate and the child’s date of birth.

 

Family Court Act § 581–203 was amended by Laws of 2024, Ch 671, § 3, effective December 21, 2024 to read as follows:

§ 581–203. Proceeding for judgment of parentage of a child conceived pursuant to a surrogacy agreement

 

(a) The proceeding may be commenced (1) in any county where an intended parent resided any time after the surrogacy agreement was executed; or (2) in the county where the child was born or resides or in the county where the birth is intended to occur; or (3) in the county where the surrogate resided any time after the surrogacy agreement was executed.

 

(b) The proceeding may be commenced at any time after the surrogacy agreement has been executed pregnancy is achieved and the person acting as surrogate, the spouse of the person acting as surrogate, if any, donors for whom there is not proof of donative intent as set forth in subdivision (d) of section 581–202 of this part, and all intended parents are necessary parties. The service provisions of subdivision (e) of section 581–202 of this part shall be applicable to donors entitled to notice pursuant to this provision.

 

(c) The petition for a judgment of parentage must be verified and include the following:

 

(1) a statement that the person acting as surrogate or at least one of the intended parents parent has been a resident of the state for at least six months at the time the surrogacy agreement was executed; and

 

(2) a certification from the attorney representing the intended parent or parents and the attorney representing the person acting as surrogate and the spouse of the person acting as surrogate, if applicable, that each of the requirements of part four of this article have been met; and

 

(3) a statement from all parties to the surrogacy agreement that they knowingly and voluntarily entered into the surrogacy agreement and that the parties are jointly requesting the judgment of parentage; and

 

(4) a copy of the executed surrogacy agreement.

 

(d) Where the court finds the statements required by subdivision (c) of this section to be true, the court shall issue a judgment of parent-age, without additional proceedings or documentation:

 

(1) declaring, that upon the birth of the child born during the term of the surrogacy agreement, the intended parent or parents are the only legal parent or parents of the child;

 

(2) declaring, that upon the birth of the child born during the term of the surrogacy agreement, the person acting as surrogate, and the spouse of the person acting as surrogate, if any applicable, is not the a legal parent of the child;

 

(3) declaring that upon the birth of the child born during the term of the surrogacy agreement, the donors any donor, if any applicable, are is not the parents a parent of the child;

 

(4) ordering the person acting as surrogate and the spouse of the person acting as surrogate, if any, to transfer the child to the intended parent or parents if this has not already occurred;

 

(5) ordering the intended parent or parents to assume responsibility for the maintenance and support of the child immediately upon the birth of the child; and

 

(6) ordering that:

 

(i) Pursuant The hospital birth registrar shall report the parentage of the child on the record of live birth in conformity with the judgment of parentage, if the judgment of parentage is issued before the birth of the child; and

 

(ii) If a change to the child’s birth certificate is necessitated by the judgment of parentage, then pursuant to section two hundred fifty-four of the judiciary law, the clerk of the court shall transmit to the state commissioner of health, or for a person born in New York city, to the commissioner of health of the city of New York, on a form prescribed by the commissioner, a written notification of such entry together with such other facts as may assist in identifying the birth record of the person whose parentage was in issue and, if the person whose parentage has been determined is under eighteen years of age, the clerk shall also transmit to the registry operated by the department of social services pursuant to section three hundred seventy-two-c of the social services law a notification of the determination; and

 

(ii) (iii) Pursuant to section forty-one hundred thirty-eight of the public health law and NYC Public Health Code section 207.05 that upon receipt of a judgement of parentage the local registrar where a child is born will report the parentage of the child to the appropriate department of health in conformity with the court order. If an original birth certificate has already been issued, the appropriate department of health will amend the birth certificate in an expedited manner and seal the previously issued birth certificate except that it may be rendered accessible to the child at eighteen years of age or the legal parent or parents; and

 

(7) if the judgment of parentage is issued prior to the birth of the child, ordering the petitioner or petitioners, within seven days of such birth, to provide the court with notification thereof, together with such other facts as may assist in identifying the birth record of the child whose parentage was in issue. Such notification shall be in writing on a form to be prescribed by the chief administrator of the courts. The court shall thereafter issue an amended judgment of parentage that includes the child’s name as it appears on the child’s birth certificate and the child’s date of birth.

 

(e) In the event the certification required by paragraph two of subdivision (c) of this section cannot be made because of a technical or non-material deviation from the requirements of this article; the court may nevertheless enforce the agreement and issue a judgment of parentage if the court determines the agreement is in substantial compliance with the requirements of this article. In the event that any other requirements of subdivision (c) of this section are not met, the court shall determine parentage according to part four of this article.

 

Family Court Act §581–205 was amended by Laws of 2024, Ch 671, § 4, effective December 21, 2024 to read as follows:

§ 581–205. Inspection of records

Court records relating to proceedings under this article shall be sealed, provided, however, that the office of temporary and disability assistance, a child support unit of a social services district or a child support agency of another state providing child support services pursuant to title IV-d of the federal social security act, when a party to a related support proceeding and to the extent necessary to provide child support services or for the administration of the program pursuant to title IV-d of the federal social security act, may obtain a copy of a judgment of parentage. The parties to the proceeding and the child shall have the right to inspect and make copies of the entire court record, including, but not limited to, the name of the person acting as surrogate and any known donors donor. Notwithstanding any other provision of law, the county clerk or the clerk of the supreme, surrogate’s or family court shall not display the surname of the child or parties in any caption, document, index, minutes or other record available to the public, whether filed in hard copy or electronically.

 

Family Court Act §581–206, was amended by Laws of 2024, Ch 671, § 5, effective December 21, 2024 to read as follows:

§ 581–206. Jurisdiction, and exclusive continuing jurisdiction

(a) Proceedings pursuant to this article may be instituted in the New York state supreme or court, family court or surrogates court.

 

(b) The court conducting a proceeding under this article shall have exclusive, continuing jurisdiction of all matters relating to the determination of parentage until the child attains the age of one hundred eighty days, whereafter continuing jurisdiction shall be determined by the jurisdictional standards of section seventy-six of the domestic relations law.

 

(c) Subject to the jurisdictional standards of section seventy-six of the domestic relations law, the court conducting a proceeding under this article has exclusive, continuing jurisdiction of all matters relating to the determination of parentage until the child attains the age of one hundred eighty days.

 

The Family Court Act was amended by Laws of 2024, Ch 671, § 6, effective December 21, 2024, by adding a new section 581–207 to read as follows:

§ 581–207. Certified copy of judgment of parentage

 

Upon issuing a judgment of parentage pursuant to section 581–202 or 581–203 of this part, the issuing court shall provide a certified copy of such judgment to the intended parent or parents.

 

Family Court Act §581–303 (b) was amended by Laws of 2024, Ch 671, § 7, effective December 21, 2024 to read as follows:

 

(b) The court shall issue a judgment of parentage pursuant to this article upon application by any participant person authorized to file a petition pursuant to subdivision (c) of section 581–201 of this article.

 

 

Family Court Act §581–303 (b) as amended by Laws of 2024, Ch 671, § 7, effective December 21, 2024 now provides:

§ 581-303. Parentage of child of assisted reproduction

(a) An individual who provides gametes for, or who consents to, assisted reproduction with the intent to be a parent of the child with the consent of the gestating parent as provided in section 581-304 of this part, is a parent of the resulting child for all legal purposes.

 

(b) The court shall issue a judgment of parentage pursuant to this article upon application by any person authorized to file a petition pursuant to subdivision (c) of section 581-201 of this article.

 

(Added L.2020, c. 56, pt. L, § 1, eff. Feb. 15, 2021. Amended L.2024, c. 671, § 7, eff. Dec. 21, 2024.)

 

 

 

Family Court Act §581–306 (a)(3) and (d) were amended Laws of 2024, Ch 671, § 8, effective December 21, 2024 to read as follows:

 

(3) where the intended parents are married, transfer of legal rights and dispositional control occurs only becomes effective upon: (i) living separate and apart pursuant to a decree or judgment of separation or pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded; or (ii) living separate and apart at least three years; or (iii) divorce; or (iv) death.

 

(d) An embryo disposition agreement or advance directive that is not in compliance with subdivision (a) of this section may still be found to be enforceable by the court after balancing the respective interests of the parties except that the intended parent who divested him or herself of legal rights and dispositional control may not be declared to be a parent for any purpose without his or her consent. The intended parent awarded legal rights and dispositional control of the embryos shall, in this instance, be declared to be the only parent of the child.

 

Family Court Act §581–306 as amended Laws of 2024, Ch 671, § 8, effective December 21, 2024 now provides:

§ 581-306. Effect of embryo disposition agreement between intended parents which transfers legal rights and dispositional control to one intended parent

(a) An embryo disposition agreement between intended parents with joint dispositional control of an embryo shall be binding under the following circumstances:

(1) it is in writing;

(2) each intended parent had the advice of independent legal counsel prior to its execution, which may be paid for by either intended parent; and

(3) where the intended parents are married, transfer of legal rights and dispositional control becomes effective upon: (i) living separate and apart pursuant to a decree or judgment of separation or pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded; or (ii) living separate and apart at least three years; or (iii) divorce; or (iv) death.

 

(b) The intended parent who transfers legal rights and dispositional control of the embryo is not a parent of any child conceived from the embryo unless the agreement states that he or she consents to be a parent and that consent is not withdrawn consistent with subdivision (c) of this section.

 

(c) If the intended parent transferring legal rights and dispositional control consents to be a parent, he or she may withdraw his or her consent to be a parent upon written notice to the embryo storage facility and to the other intended parent prior to transfer of the embryo. If he or she timely withdraws consent to be a parent he or she is not a parent for any purpose including support obligations but the embryo transfer may still proceed.

(d) An embryo disposition agreement that is not in compliance with subdivision (a) of this section may still be found to be enforceable by the court after balancing the respective interests of the parties except that the intended parent who divested him or herself of legal rights and dispositional control may not be declared to be a parent for any purpose without his or her consent. The intended parent awarded legal rights and dispositional control of the embryos shall, in this instance, be declared to be the only parent of the child.

 

(Added L.2020, c. 56, pt. L, § 1, eff. Feb. 15, 2021. Amended L.2024, c. 671, § 8, eff. Dec. 21, 2024.)

 

 

Family Court Act §581–402 was amended Laws of 2024, Ch 671, § 9, effective December 21, 2024 to read as follows:

§ 581–402. Eligibility to enter surrogacy agreement

 

(a) A person acting as surrogate shall be eligible to enter into an enforceable surrogacy agreement under this article if the person acting as surrogate has met the following requirements at the time the surrogacy agreement is executed:

 

(1) the person acting as surrogate is at least twenty-one years of age;

 

(2) the person acting as surrogate: (i) is a United States citizen or a lawful permanent resident, and, where at least one intended parent is not (ii) has been a resident of New York state for at least six months, was if neither intended parent has been a resident of New York state for at least six months;

 

(3) the person acting as surrogate has not provided the egg used to conceive the resulting child;

 

(4) the person acting as surrogate has completed a medical evaluation with a health care practitioner relating to the anticipated pregnancy. Such medical evaluation shall include a screening of the medical history of the potential surrogate including known health conditions that may pose risks to the potential surrogate or embryo during pregnancy;

 

(5) the person acting as surrogate has given informed consent for the surrogacy to undergo the medical procedures after the licensed health care practitioner inform has informed them of the medical risks of surrogacy including the possibility of multiple births, risk of medications taken for the surrogacy, risk of pregnancy complications, psychological and psychosocial risks, and impacts on their personal lives;

 

(6) the person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, have been represented throughout from the initiation of the contractual process and throughout the duration of the contract and its execution surrogacy agreement by independent legal counsel of their own choosing who is licensed to practice law in the state of New York which shall be paid for by the intended parent or parents, except that a person acting as surrogate who is receiving no compensation may waive the right to have the intended parent or parents pay the fee for such legal counsel. Where the intended parent or parents are paying for the independent legal counsel of the person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, is paid by the intended parent or parents, a separate retainer agreement shall be prepared clearly stating that such legal counsel will only represent the person acting as surrogate and the spouse of the person acting as surrogate, if applicable, in all matters pertaining to the surrogacy agreement, that such legal counsel will not offer legal advice to any other parties to the surrogacy agreement, and that the attorney-client relationship lies with the person acting as surrogate and the spouse of the person acting as surrogate, if applicable;

 

(7) the person acting as surrogate has or the surrogacy agreement stipulates that the person acting as surrogate will obtain a comprehensive health insurance policy coverage that takes effect after the person acting as surrogate has been deemed medically eligible but prior to taking any medication or commencing treatment to further embryo transfer that covers preconception care, prenatal care, major medical treatments, hospitalization, and behavioral health care, and the comprehensive policy has a term that extends throughout the duration of the expected pregnancy and for twelve months after the birth of the child, a stillbirth, a miscarriage resulting in termination of pregnancy, or termination of the pregnancy; the policy shall be paid for, whether directly or through reimbursement or other means, by the intended parent or parents on behalf of the person acting as surrogate pursuant to the surrogacy agreement, except that a person acting as surrogate who is receiving no compensation may waive the right to have the intended parent or parents pay for the health insurance policy. The intended parent or parents shall also pay for or reimburse the person acting as surrogate for all co-payments, deductibles and any other out-of-pocket medical costs associated with preconception, pregnancy, childbirth, or postnatal care, that accrue through twelve months after the birth of the child, a stillbirth, a miscarriage, or termination of the pregnancy. A person acting as surrogate who is receiving no compensation may waive the right to have the intended parent or parents make such payments or reimbursements:

 

(i) preconception care. The surrogacy agreement shall state that the intended parent or parents will be responsible for all medical costs of the person acting as surrogate associated with their preconception care including but not limited to medical and psychological screenings, medications, embryo transfer procedure, monitoring prior and subsequent to the embryo transfer procedure and any complications associated with the foregoing. The intended parent or parents shall be responsible for the costs of any such complications either through insurance or by placing and maintaining sufficient funds in escrow to cover such expenses. If the surrogacy agreement is terminated after the person acting as surrogate has taken any medication or commenced treatment to further embryo transfer but before pregnancy is achieved, such funds shall remain in escrow for a minimum period of six months from the date the surrogacy agreement is terminated;

 

(ii) medical expenses associated with pregnancy. The person acting as surrogate has, or the surrogacy agreement shall stipulate that the person acting as surrogate will obtain, comprehensive health insurance coverage, via one or more insurance policies, prior to or immediately upon confirmation of pregnancy that covers prenatal care, major medical treatments, hospitalization, behavioral health care, childbirth and postnatal care, and that such comprehensive coverage must be in place throughout the duration of the pregnancy and for twelve months after the birth of the child, a stillbirth, a miscarriage resulting in termination of the pregnancy, or termination of the pregnancy. The policy shall be paid for, whether directly or through reimbursement or other means, by the intended parent or parents on behalf of the person acting as surrogate to the extent that there is an additional cost to the person acting as surrogate for such health insurance coverage. The intended parent or parents shall also pay for or reimburse the person acting as surrogate for all co-payments, deductibles and any other out-of-pocket medical costs associated with pregnancy, childbirth, or postnatal care, that accrue through twelve months after the birth of the child, a stillbirth, a miscarriage resulting in termination of the pregnancy, or termination of the pregnancy; and

 

(iii) uncompensated surrogacy agreements. A person acting as surrogate who is receiving no compensation may waive the right to have the intended parent or parents make the payments set forth in this section;

 

(8) the surrogacy agreement must provide that the intended parent or parents shall procure and pay for a life insurance, contractual liability or accidental death insurance policy for the person acting as surrogate that takes effect prior to taking any medication or the commencement of medical procedures to further embryo transfer, provides a minimum benefit of seven hundred fifty thousand dollars or the maximum amount the person acting as surrogate qualifies for if it is less than seven hundred fifty thousand dollars, and has a term that extends such coverage shall extend throughout the duration of the expected pregnancy and for twelve months after the birth of the child, a stillbirth, a miscarriage resulting in termination of pregnancy, or termination of the pregnancy, with a beneficiary or beneficiaries of their the person acting as surrogate’s choosing. The policy shall be paid for, whether directly or through reimbursement or other means, by the intended parent or parents on behalf of the person acting as surrogate pursuant to the surrogacy agreement, except that a person acting as surrogate who is receiving no compensation may waive the right to have the intended parent or parents pay for the life insurance, contractual liability or accidental death insurance policy but not the requirement to have such a policy; and

 

(9) the person acting as surrogate meets all other requirements deemed appropriate by the commissioner of health regarding the health of the prospective surrogate.

 

(b) The intended parent or parents shall be eligible to enter into an enforceable surrogacy agreement under this article if he, she or they have met the following requirements at the time the surrogacy agreement was executed:

 

(1) at least one intended parent is:

 

(i) a United States citizen or a lawful permanent resident; and

 

was (ii) has been a resident of New York state for at least six months if the person acting as surrogate has not been a resident of the state of New York for at least six months;

 

(2) the intended parent or parents has they have been represented throughout from the initiation of the contractual process and throughout the duration of the contract and its execution surrogacy agreement by independent legal counsel of his, her or their own choosing who is licensed to practice law in the state of New York; and

 

(3) he or she is they are an adult person who is not in a spousal relationship, or adult any adults who are spouses together, or any two adults who are intimate partners together, except an adult in a spousal relationship is eligible to enter into an enforceable surrogacy agreement without his or her their spouse if:

 

(i) they are living separate and apart pursuant to a decree or judgment of separation or pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded; or

 

(ii) they have been living separate and apart for at least three years prior to execution of the surrogacy agreement.

 

(c) where the spouse of an intended parent is not a required party to the agreement, the spouse is not an intended parent and shall not have rights or obligations to the child.

 

Family Court Act §581–403 was amended Laws of 2024, Ch 671, § 10, effective December 21, 2024 to read as follows:

§ 581–403. Requirements of surrogacy agreement

 

A surrogacy agreement shall be deemed to have satisfied the requirements of this article and be enforceable if it meets the following requirements:

 

(a) it shall be in a signed record verified or executed before with each signature either notarized or witnessed by two non-party witnesses non-parties and signed by:

 

(1) each intended parent, and

 

(2) the person acting as surrogate, and the spouse of the person acting as surrogate, if any applicable, unless:

 

(i) the person acting as surrogate and the spouse of the person acting as surrogate they are living separate and apart pursuant to a decree or judgment of separation or pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded; or

 

(ii) they have been living separate and apart for at least three years prior to execution of the surrogacy agreement;

 

(b) it shall be executed prior to the person acting as surrogate taking any medication or the commencement of medical procedures in the furtherance of embryo transfer, provided the person acting as surrogate shall have provided informed consent to undergo such medical treatment or medical procedures prior to executing the agreement;

 

(c) it shall be executed by a person acting as surrogate meeting the eligibility requirements of subdivision (a) of section 581–402 of this part and by the spouse of the person acting as surrogate, if applicable, unless the signature of the spouse of the person acting as surrogate is not required as set forth in this section;

 

(d) it shall be executed by intended parent or parents who met the eligibility requirements of subdivision (b) of section 581–402 of this part;

 

(e) the person acting as surrogate and the spouse of the person acting as surrogate, if applicable, and the intended parent or parents shall have been represented throughout from the initiation of the contractual process and the surrogacy agreement states that they shall be represented throughout the duration of the contract and its execution surrogacy agreement by separate, independent legal counsel of their own choosing, who is licensed to practice law in the state of New York;

 

(f) if the surrogacy agreement provides for the payment of compensation to the person acting as surrogate, the funds for base compensation and reasonable anticipated additional expenses shall have been placed in escrow with an independent escrow agent, who consents to the jurisdiction of New York courts for all proceedings related to the enforcement of the escrow agreement, prior to the person acting as surrogate commencing with any medical procedure other than medical evaluations necessary to determine the person acting as surrogate’s eligibility;

 

(g) the surrogacy agreement must include information disclosing how the intended parent or parents will cover the medical expenses of the person acting as surrogate and the child. The surrogacy agreement shall specify the amount that the intended parent or parents shall place in escrow to cover such reasonable anticipated costs including preconception medical care and extending throughout the duration of the expected surrogacy agreement. If it is anticipated that comprehensive health care coverage is will be used to cover the medical expenses for the person acting as surrogate, the disclosure shall include a review and summary of the health care policy provisions related to coverage and exclusions for the person acting as surrogate’s surrogate shall be reviewed and summarized in relation to the anticipated pregnancy prior to such policy being used to cover any of the person acting as surrogate’s medical expenses incurred pursuant to the surrogacy agreement; and

 

(h) it the surrogacy agreement shall include the following information:

 

(1) the date, city and state where the surrogacy agreement was executed;

 

(2) the first and last names of and contact information for the intended parent or parents and of the person acting as surrogate;

 

(3) the first and last names of and contact information for the persons from which the gametes originated, if known. The agreement shall specify whether the gametes provided were eggs, sperm, or embryos;

 

(4) the name of and contact information for the licensed and registered surrogacy program handling the arranging or facilitating the transactions contemplated by the surrogacy agreement, if any; and

 

(5) the name of and contact information for the attorney representing the person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, and the attorney representing the intended parent or parents; and

 

(i) the surrogacy agreement must comply with all of the following terms:

 

(1) As to the person acting as surrogate and the spouse of the person acting as surrogate, if applicable:

 

(i) the person acting as surrogate agrees to undergo embryo transfer and attempt to carry and give birth to the child;

 

(ii) the person acting as surrogate and the spouse of the person acting as surrogate, if applicable, agree to surrender custody of all resulting children to the intended parent or parents immediately upon birth;

 

(iii) the surrogacy agreement shall include the name of the attorney representing the person acting as surrogate and, if applicable, the spouse of the person acting as surrogate;

 

(iv) the surrogacy agreement must include an acknowledgement by the person acting as surrogate and the spouse of the person acting as surrogate, if applicable, that they have received a copy of the Surrogate’s Bill of Rights from their legal counsel;

 

(v) the surrogacy agreement must permit the person acting as surrogate to make all health and welfare decisions regarding themselves and their pregnancy including but not limited to, whether to consent to a cesarean section or multiple embryo transfer, and notwithstanding any other provisions in this chapter, provisions in the agreement to the contrary are void and unenforceable. This article does not diminish the right of the person acting as surrogate to terminate or continue a pregnancy;

 

(vi) the surrogacy agreement shall permit the person acting as a surrogate to utilize the services of a health care practitioner of the person’s choosing;

 

(vii) the surrogacy agreement shall not limit the right of the person acting as surrogate to terminate or continue the pregnancy or reduce or retain the number of fetuses or embryos the person is carrying;

 

(viii) the surrogacy agreement shall provide for the right of the person acting as surrogate, upon request, to obtain counseling to address issues resulting from the person’s participation in the surrogacy agreement, including, but not limited to, counseling following delivery. The cost of that counseling shall be paid by the intended parent or parents;

 

(ix) the surrogacy agreement must include a notice that any compensation received pursuant to the agreement may affect the eligibility of the person acting as surrogate’s ability surrogate and the person acting as surrogate’s spouse, if applicable, for public benefits or the amount of such benefits; and

 

(x) the surrogacy agreement shall provide that, upon the person acting as surrogate’s request, the intended parent or parents have or will procure and shall pay for a disability insurance policy for or other insurance policy to cover any lost wages incurred by the person acting as surrogate ; the person acting as surrogate may designate the beneficiary of the person’s choosing in connection with their participation in the surrogacy agreement after taking any medication or commencing treatment to further embryo transfer excluding medical procedures required to determine the medical eligibility to become a person acting as surrogate. In the event that such insurance coverage is not available, the intended parent or parents shall reimburse the person acting as surrogate for any lost wages the person acting as surrogate incurs in connection with their participation in the surrogacy agreement.

 

(2) As to the intended parent or parents:

 

(i) the intended parent or parents agree to shall accept custody of all resulting children immediately upon birth regardless of number, gender, or mental or physical condition and regardless of whether the intended embryo or embryos was or were transferred due to a laboratory error without diminishing the rights, if any, of anyone claiming to have a superior parental interest in the child; and

 

(ii) the intended parent or parents agree to shall assume responsibility for the support of all resulting children immediately upon birth; and

 

(iii) the surrogacy agreement shall include the name of the attorney representing the intended parent or parents; and

 

(iv) the surrogacy agreement shall provide that the rights and obligations of the intended parent or parents under the surrogacy agreement are not assignable; and

 

(v) the intended parent or parents agree to shall execute a will, prior to the embryo transfer, designating a guardian for all resulting children and authorizing their executor to perform the intended parent’s or parents’ obligations of the intended parent or parents pursuant to the surrogacy agreement, including filing a proceeding for a judgment of parentage for a child conceived pursuant to a surrogacy agreement pursuant to section 581–203 of this article if there is no intended parent living.

 

Family Court Act §581–404(b) was amended Laws of 2024, Ch 671, § 11, effective December 21, 2024 to read as follows:

 

(b) The subsequent separation or divorce of the intended parents does not affect the rights, duties and responsibilities of the intended parents as outlined in the surrogacy agreement. After the execution of a surrogacy agreement under this article, the subsequent spousal relationship of the intended parent does not affect the validity of a surrogacy agreement, and the consent of the new spouse of the an intended parent to the agreement shall not be required.

 

Family Court Act §581–405 was amended by Laws of 2024, Ch 671, § 12, effective December 21, 2024 to read as follows:

§ 581–405. Termination of surrogacy agreement

 

After the execution of a surrogacy agreement but before the person acting as surrogate becomes pregnant by means of assisted reproduction, embryo transfer occurs or after an unsuccessful embryo transfer, the person acting as surrogate, the spouse of the person acting as surrogate, if applicable, or any intended parent may terminate the surrogacy agreement by giving notice of termination in a record to all other parties. Upon proper termination of the surrogacy agreement the parties are released from all obligations recited in the surrogacy agreement except that the intended parent or parents remains shall remain responsible for all expenses that are reimbursable lost wages and other financial obligations which have accrued under the agreement which have been incurred by the person acting as surrogate through the date of termination. If the intended parent or parents terminate the surrogacy agreement pursuant to this section after the person acting as surrogate has taken any medication or commenced treatment to further embryo transfer, such intended parent or parents shall be responsible for paying for or reimbursing the person acting as surrogate for all co-payments, deductibles, any other out-of-pocket medical costs, and any other economic losses incurred within twelve months of after the termination of the agreement and which, as documented by a health care practitioner, are associated with taking such medication or undertaking such treatment. Unless the agreement provides otherwise, the person acting as surrogate is entitled to keep all payments received and obtain all payments to which the person is entitled up until the date of termination of the agreement. Neither a person acting as surrogate nor the spouse of the person acting as surrogate, if any applicable, is liable to the intended parent or parents for terminating a surrogacy agreement as provided in this section.

 

Family Court Act § 581–406 was amended by Laws of 2024, Ch 671, § 13, effective December 21, 2024 to read as follows:

§ 581–406. Parentage under compliant surrogacy agreement

 

Upon the birth of a child conceived by assisted reproduction under a surrogacy agreement that complies with this part, each intended parent is, by operation of law, a parent of the child and neither the person acting as a surrogate nor the person’s spouse, if any applicable, is a parent of the child.

 

Family Court Act §581–409 was amended by Laws of 2024, Ch 671, § 14, effective December 21, 2024 to read as follows:

§ 581–409. Dispute as to surrogacy agreement

 

(a) Any dispute which is related to a surrogacy agreement other than disputes as to parentage, which are not resolved through alternative dispute resolution methods, shall be resolved by the supreme court, which shall determine the respective rights and obligations of the parties, in. In any proceeding initiated pursuant to this section, the court may, at its discretion, authorize the use of conferencing or mediation at any point in the proceedings.

 

(b) Except as expressly provided in the surrogacy agreement, the intended parent or parents and the person acting as surrogate shall be entitled to all remedies available at law or equity in any dispute related to the surrogacy agreement.

 

(c) There shall be no specific performance remedy available for a breach or subdivision (c) or (d) of this section, if the agreement is breached by the person acting as surrogate, the spouse of the person acting as surrogate, if applicable, or one or more intended parent, the non-breaching party shall be entitled to all remedies available at law or in equity in any dispute related to the surrogacy agreement.

 

(c) Specific performance shall not be a remedy available for a breach by a person acting as surrogate of a provision in the surrogacy agreement that the person acting as surrogate be impregnated, agree to a multiple embryo transfer, terminate or not terminate a pregnancy, or submit to medical procedures including a cesarean section.

 

(d) If any intended parent is adjudicated to be the parent of the child, specific performance is a remedy available for: (1) breach of the surrogacy agreement by a person acting as surrogate which prevents the intended parent or parents from exercising the full rights of parentage immediately upon the birth of the child; or (2) breach by the intended parent or parents by failure to accept the duties of parentage immediately upon the birth of the child.

 

(e) In any proceeding initiated pursuant to this section, where the supreme court determines that the dispute involves both contractual and parentage issues, the court may order that the portion of the proceedings raising parentage issues may be transferred to the family or surrogate’s court.

 

Family Court Act § 581–502 was amended by Laws of 2024, Ch 671, § 15, effective December 21, 2024 to read as follows:

§ 581–502. Compensation

 

(a) Compensation may be paid to a donor or person acting as surrogate based on medical risks, physical discomfort, inconvenience and the responsibilities they are undertaking in connection with their participation in the assisted reproduction. Under no circumstances may compensation be paid to purchase gametes or embryos or for the release of a parental interest in a child.

 

(b) The compensation, if any, paid to a donor or person acting as surrogate must be reasonable and negotiated in good faith between the parties, and said payments. Base compensation paid to a person acting as surrogate shall not exceed the duration of the pregnancy and recuperative period of up to eight weeks after the birth of any resulting children child. Supplemental compensation for any medical procedure associated with complications from the pregnancy or delivery as confirmed by a health care practitioner, and any associated lost wages, may be, but are not required to be, paid after the recuperative period and until twelve months after the birth of the child, a stillbirth, a miscarriage resulting in termination of the pregnancy, or termination of the pregnancy.

 

(c) Compensation may not be conditioned upon the purported quality or genome-related traits of the gametes or embryos.

 

(d) Compensation may not be conditioned on actual genotypic or phenotypic characteristics of the donor or donors or of any resulting children.

 

(e) Compensation to an any embryo donor shall be limited to storage fees, transportation costs and attorneys’ fees.

 

Family Court Act § 581–601 was amended by Laws of 2024, Ch 671, § 16, effective December 21, 2024 to read as follows:

§ 581–601. Applicability

 

The rights enumerated in this part shall apply to any person acting as surrogate in this state under the laws of the state of New York, notwithstanding any surrogacy agreement, judgment of parentage, memorandum of understanding, verbal agreement or contract to the contrary. Except as otherwise provided by law, any written or verbal agreement purporting to waive or limit any of the rights in this part is void as against public policy. The rights enumerated in this part are not exclusive, and are in addition to any other rights provided by law, regulation, or a surrogacy agreement that meets the requirements of this article.

 

Family Court Act § 581–603 was amended by Laws of 2024, Ch 671, § 17, effective December 21, 2024 to read as follows:

§ 581–603. Independent legal counsel

 

A person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, has the right to be represented throughout from the initiation of the contractual process and throughout the duration of the surrogacy agreement and its execution by independent legal counsel of their own choosing who is licensed to practice law in the state of New York, to be paid for by the intended parent or parents.

 

Family Court Act § 581–604 was amended by Laws of 2024, Ch 671, § 18, effective December 21, 2024 to read as follows:

§ 581–604. Health insurance and medical costs

 

A person acting as surrogate has the right to have a comprehensive health insurance policy coverage that covers preconception care, prenatal care, major medical treatments, hospitalization and behavioral health care medical expenses and medical expenses associated with the pregnancy for a term period that extends throughout the duration of the expected pregnancy and for twelve months after the birth of the child, a stillbirth, a miscarriage resulting in termination of pregnancy, or termination of the pregnancy, to be paid for by the intended parent or parents. The intended parent or parents shall also pay for or reimburse the person acting as surrogate for all co-payments, deductibles and any other out-of-pocket medical costs associated with pregnancy, childbirth, or postnatal care that accrue through In addition, a person acting as a surrogate shall have the right to have the intended parent or parents pay for all of their medical expenses incurred in connection with the surrogacy agreement, continuing through the duration of the expected pregnancy and for twelve months after the birth of the child, a stillbirth, a miscarriage resulting in the termination of pregnancy, or the termination of the pregnancy. A person acting as a surrogate who is receiving no compensation may waive the right to have the intended parent or parents make such payments or reimbursements.

 

Family Court Act, Section 581–605 was amended by Laws of 2024, Ch 671, § 19, effective December 21, 2024 to read as follows:

§ 581–605. Counseling

 

A person acting as surrogate has the right to obtain a comprehensive health insurance policy that covers behavioral health care and will cover the cost of psychological mental health counseling to address issues resulting from their participation in a the surrogacy and such policy agreement, which shall be paid for by an insurance policy or by the intended parent or parents.

 

Family Court Act §581–606 was amended by Laws of 2024, Ch 671, § 20, effective December 21, 2024 to read as follows:

§ 581–606. Life insurance, contractual liability, or accidental death insurance policy

 

A person acting as surrogate has the right to be provided a life insurance, contractual liability or accidental death insurance policy that takes effect prior to taking any medication or commencement of treatment to further embryo transfer, provides a minimum benefit of seven hundred fifty thousand dollars, or the maximum amount the person acting as surrogate qualifying qualifies for it if less than seven hundred fifty thousand dollars, and has a term that extends such coverage shall extend throughout the duration of the expected pregnancy and for twelve months after the birth of the child, a stillbirth, a miscarriage resulting in termination of pregnancy, or termination of the pregnancy, with a beneficiary or beneficiaries of their the person acting as surrogate’s choosing, to be paid for by the intended parent or parents.

 

The Family Court Act was amended by Laws of 2024, Ch 671, § 21, effective December 21, 2024 by adding a new section 581–705 to read as follows:

§ 581–705. Adjudication

 

(a) A court adjudicating the parentage of a child conceived through assisted reproduction or adjudicating the enforceability of an embryo disposition agreement may apply section 581–202 and part three of this article retroactively.

 

(b) The participants in a surrogacy agreement that involved the payment of compensation prior to February fifteenth, two thousand twenty-one shall not be eligible to receive a judgment of parentage pursuant to section 581–203 or section 581–406 of this article, but shall be entitled to seek a judgment of parentage pursuant to section 581–407 of this article.

 

(c) This article shall apply retroactively to uncompensated surrogacy agreements entered into prior to February fifteenth, two thousand twenty-two.

 

(d) Surrogacy agreements that were executed on or after February fifteenth, two thousand twenty-three, but before the effective date of the chapter of the laws of two thousand twenty-four that added this subdivision that were in compliance with this article before it was amended by the chapter of the laws of two thousand twenty-four that added this subdivision shall be deemed a compliant surrogacy agreement pursuant to section 581–406 of this article regardless of any deviations from the current provisions of this article.

 

Domestic Relations Law § 123 (2)(a) was amended by Laws of 2024, Ch 671, § 22, effective December 21, 2024 to read as follows:

 

(a) Any party to a genetic surrogate parenting agreement or the spouse of any part party to a genetic surrogate parenting agreement who violate violates this section shall be subject to a civil penalty not to exceed five hundred dollars.

 

Domestic Relations Law § 123. Prohibitions and penalties, as amended by Laws of 2024, Ch 671, § 22, effective December 21, 2024, provides:

1. No person or other entity shall knowingly request, accept, receive, pay or give any fee, compensation or other remuneration, directly or indirectly, in connection with any genetic surrogate parenting agreement, or induce, arrange or otherwise assist in arranging a genetic surrogate parenting agreement for a fee, compensation or other remuneration, except for:

(a) payments in connection with the adoption of a child permitted by subdivision six of section three hundred seventy-four of the social services law and disclosed pursuant to subdivision eight of section one hundred fifteen of this chapter; or

(b) payments for reasonable and actual medical fees and hospital expenses for artificial insemination or in vitro fertilization services incurred by the genetic surrogate in connection with the birth of the child.

2. (a) Any party to a genetic surrogate parenting agreement or the spouse of any party to a genetic surrogate parenting agreement who violates this section shall be subject to a civil penalty not to exceed five hundred dollars.

(b) Any other person or entity who or which induces, arranges or otherwise assists in the formation of a genetic surrogate parenting contract for a fee, compensation or other remuneration or otherwise violates this section shall be subject to a civil penalty not to exceed ten thousand dollars and forfeiture to the state of any such fee, compensation or remuneration in accordance with the provisions of subdivision (a) of section seven thousand two hundred one of the civil practice law and rules, for the first such offense. Any person or entity who or which induces, arranges or otherwise assists in the formation of a genetic surrogate parenting contract for a fee, compensation or other remuneration or otherwise violates this section, after having been once subject to a civil penalty for violating this section, shall be guilty of a felony.

 

(Added L.1992, c. 308, § 1. Amended L.2020, c. 56, pt. L, § 5, eff. Feb. 15, 2021; L.2024, c. 671, § 22, eff. Dec. 21, 2024.)

 

 

December 30, 2024

 

Second Department

 

 

A finding of neglect must be based on evidence establishing the allegations set forth in the petition. Absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition.

           

In Matter of Elina M. --- N.Y.S.3d ----, 2024 WL 5205117 (2d Dept.,2024) a neglect proceeding based upon an alleged incident of excessive corporal punishment the Appellate Division emphasized that a finding of neglect must be based on evidence establishing the allegations set forth in the petition before the court and absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition. The petition alleged that on or about June 7, 2021, the father had grabbed the child’s arm and squeezed it “really, really hard,” leaving “three circular, dark green marks” on the child’s shoulder, which “appeared to be the size of fingerprints.” The petition did not contain any allegations that the father had engaged in any other acts of aggression toward the child or regarding any misuse of alcohol.  At the fact-finding hearing on the July 19, 2022 hearing date, the mother was questioned by ACS counsel as to whether the incident was the first one that the child had reported in which the father had become angry and grabbed her. The father’s counsel objected to the question as leading, and the Family Court asked if “it [is] in the petition.” ACS counsel argued that petitions are pleaded generally. The court advised ACS counsel that the petition required allegations of specific facts and that if ACS wanted to conform the pleadings to the proof to add allegations other than the subject incident, the petition would have to be amended. ACS's counsel stated that she intended to amend the petition, and the court ordered that conformed pleadings were to be submitted with notice to all counsel by July 21, 2022, at 5:00 p.m. On the next hearing date, ACS counsel confirmed that she had not served or filed conformed pleadings, and the court then stated that its findings would be “based only on the original allegations [that are] contained in the petition.” On the August 4, 2022 hearing date, the mother testified that over the last three years, the child had reported to her that the father used alcohol during the child’s visits and that he was drunk and/or drinking on the day of the incident. These allegations were not contained in the petition. The father testified at the fact-finding hearing and denied the substantial allegations. Family Court found that the father neglected the child. The order of disposition released the child to the custody of the non-respondent mother under the petitioner’s supervision.

 

            The Appellate Division agreed with the father that under the particular circumstances in the present case the Family Court erroneously found that ACS established by a preponderance of the evidence that the father neglected the child by inflicting excessive corporate punishment. The facts of the present case did not rise to a level supporting a finding of neglect under Family Court Act article 10. ACS failed to establish that the father’s act of grabbing or holding the child’s arm or shoulder rose to the level of neglect or that he intended to hurt the child or exhibited a pattern of excessive corporal punishment. In so holding, the Appellate Division stated that it was not deviating from our prior decisional law to suggest that a single incident of excessive corporal punishment cannot support a finding of neglect under Family Court Act article 10. The Appellate Division found merit to the father’s contention that the Family Court improperly based its finding of neglect, at least, in part, upon allegations that were not included in the petition, that the father had previously engaged in unspecified acts of aggression toward the child and that he misused alcohol in the child’s presence. The petition did not contain any allegations of misuse of alcohol or of acts of aggression toward the child other than the incident that occurred on or about June 7, 2021. Family Court Act § 1051(b) provides that “[i]f the proof does not conform to the specific allegations of the petition, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations.” It held that it is improper for the Family Court to rely upon evidence relating to claims not alleged in the petition. Here, the court improperly relied on evidence relating to the father’s alleged “misuse of alcohol” and alleged “aggressive behaviors and outbursts towards the child,” which were not alleged in the petition. The court allowed ACS to conform the pleadings to the proof by a certain date, and after ACS failed to do so, the court made a ruling on the record that its findings would “be based only on the original allegations contained in the petition.” Ultimately, the court failed to adhere to its own ruling.

 

 

Ultimately, the Award of Counsel Fees under Family Court Act §438 (a) should be based upon the totality of the circumstances, including the equities and circumstances of the particular case.

In Matter Lucana, v. Lawton, --- N.Y.S.3d ----, 2024 WL 5063255, 2024 N.Y. Slip Op. 06199 (2d Dept.,2024) the Appellate Division affirmed an order of the Family Court that granted the mother’s motion pursuant to Family Court Act § 438(a) for an award of attorneys’ fees and awarded her $9,775. It observed that the Family Court may allow the payment of attorneys’ fees to the attorney representing the petitioner at any stage of a proceeding to modify or enforce an order. Absent a finding that nonpayment was willful, an award of attorneys’ fees is a matter left to the sound discretion of the court. The court must base its decision primarily upon both parties’ ability to pay, the nature and extent of the services required to deal with the support dispute, and the reasonableness of their performance under the circumstances. Ultimately, the award should be based upon the totality of the circumstances, including the equities and circumstances of the particular case (Matter of Sanchez v. Reyes, 174 A.D.3d 907, 908, 103 N.Y.S.3d 290). Under the totality of the circumstances, there was a sound and substantial basis in the record for the award of attorneys’ fees to the mother based upon, inter alia, the father’s delay of the proceedings by failing to comply with the prior order of support, which caused the mother to incur unnecessary legal costs.

 

Third Department

 

 

When an order of protection is entered in an FCA Article 8 proceeding, the court must revoke any firearms license possessed by the respondent, where the court finds that the conduct involved the infliction of physical injury. Physical injury means impairment of physical condition or substantial pain.

 

In  Matter of David FF. v. Isis GG., --- N.Y.S.3d ----, 2024 WL 5160748, 2024 N.Y. Slip Op. 06399 (3d Dept., 2024) the Appellate Division, among other things,  affirmed an order of the Family Court that sustained the mother’s family offense petition. Family Court found “[t]he father’s denials of domestic violence ... simply not credible” and that the mother “was the victim of egregious domestic violence, perpetrated by [the father].” It found no basis in the record to disturb its finding that the father thrice committed the family offense of obstruction of breathing or blood circulation, harassment in the second degree, and assault. Conversely, the single hit on the back of the father’s head by the mother did not constitute “a series of acts over a period of time, however short, evidencing a continuity of purpose” to alarm or seriously annoy the father. It rejected the father’s argument that the Family Court erred by permanently revoking his pistol permit. As relevant here, when an order of protection is entered as part of an order of a disposition in a Family Ct Act article 8 proceeding, “the court shall revoke any [firearms] license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender ... of any or all firearms, rifles and shotguns owned or possessed where the court finds that the conduct which resulted in the issuance of the order of protection involved (I) the infliction of physical injury, as defined in [Penal Law § 10.00(9)].” (Family Court Act § 842–a [2][a]). “ ‘Physical injury’ means impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). Although the mother did not testify as to the level of pain caused by the father’s attacks, the record clearly demonstrated that she suffered an impairment of physical condition when he repeatedly strangled her to the point that she saw stars and suffered memory loss.

 

 

The law will allow a certain degree of judicial intervention in the presentation of evidence. A trial court may question witnesses or otherwise intervene in the proceedings on its own initiative to elicit relevant or important facts, clarify an issue, or facilitate the orderly and expeditious progress of the hearing.

 

In Matter of Samantha E.,  v. Nicholas F.,2024 WL 5160753 (3d Dept.,2024)  a custody modification proceeding the Appellate Division explained that “Given the superior position of Family Court to observe and evaluate the testimony, great deference is accorded to its credibility assessments and factual findings, and [this Court] will not disturb its custody determination so long as it is supported by a sound and substantial basis in the record”. With regard to the mother’s violation petitions for civil contempt it noted that “This Court will apply deference to Family Court’s credibility determinations, and the determination of whether or not to hold a party in contempt will not be disturbed absent an abuse of discretion”. To the extent that the father argued that Family Court abused its discretion in taking on an advocacy role when it asked questions of certain witnesses, it found was unpreserved. In any event, “the law will allow a certain degree of judicial intervention in the presentation of evidence” (Matter of Michelle L. v. Steven M., 227 A.D.3d at 1165, 210 N.Y.S.3d 808. Furthermore, “a trial court may question witnesses or otherwise intervene in the proceedings on its own initiative in order to elicit relevant or important facts, clarify an issue or to facilitate the orderly and expeditious progress of the hearing” (Matter of Denise L. v. Michael L., 138 A.D.3d 1172, 1173–1174, 30 N.Y.S.3d 353 [3d Dept. 2016].

 

 

Family Court did not abuse its discretion in sua sponte by amending the pleadings to conform to the proof presented at the hearing. FCA § 1051(b) allows such amendment so long as the respondent has a reasonable time to prepare and answer. The father heard the testimony and had opportunities to cross-examine the witnesses which gave him reasonable advanced notice of the proof and an opportunity to respond.

 

In Matter of Astilla BB. --- N.Y.S.3d ----, 2024 WL 5160742, 2024 N.Y. Slip Op. 06401 (3d Dept., 2024) a neglect proceeding, the Appellate Division held, among other things, that the Family Court did not abuse its discretion in sua sponte amending the pleadings to include the deplorable conditions of the Schenectady apartment, to conform the pleadings to reflect the proof presented at the hearing. Family Ct Act § 1051(b) allows such amendment so long as the respondent has a reasonable time to prepare and answer. The father was fully familiar with the facts and issues in this matter as he actively participated in numerous conferences and a two-day removal hearing which included the same caseworker testifying as to the conditions of the Schenectady apartment. Moreover, the fact-finding hearing took place on four separate days over approximately nine months. There was extensive testimony that both the father and the mother reported to caseworkers that the Schenectady apartment was their main residence and that the Petersburgh house was under construction. There was ample testimony regarding the uninhabitable condition of both properties and the father had ample and repeated opportunities to cross-examine the witnesses. Furthermore, the mother resolved the neglect petition against her by admitting, on the record in the father’s presence, that the condition of the Schenectady apartment was unsanitary and unsafe for the children. Its review of the record disclosed that the father had reasonable advanced notice of the proof of the conditions of the Schenectady apartment and an opportunity to respond and has failed to demonstrate that he was either surprised or prejudiced as a result of the amendment of the pleadings.

 

 

Although a court cannot delegate its authority to determine visitation to either a parent or a child, it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances.

 

In Matter of Sarah I. v Ian J., --- N.Y.S.3d ----, 2024 WL 5160751, 2024 N.Y. Slip Op. 06408 (3d Dept., 2024) a custody modification and enforcement proceeding the Appellate Division held that the Family Court did not err in awarding the mother primary physical custody. Among other things, it found no merit to the father’s contention that the Family Court improperly delegated its authority to set a parenting time schedule to the child. The relevant portion of the order appealed states that “the [f]ather shall have parenting time with the child as the parties shall mutually agree, taking into consideration the child’s wishes.” It did not find that this delegates its authority regarding parenting time to the child, especially given that this provision only requires that the child’s wishes be considered, rather than giving the child final say. Moreover, “[a]lthough a court cannot delegate its authority to determine visitation to either a parent or a child, it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances” Given the history, as well as the fact that the child, at the time of this decision, was approximately one year away from her 18th birthday, it did not find this flexible parenting time provision to be inappropriate.

 

 

Fourth Department

 

 

The Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel. So long as the evidence, the law, and the circumstances of a particular case reveal that the attorney provided meaningful representation, a constitutional right to the effective assistance of counsel will have been met.

 

In Matter of Rotundo v Deptola, --- N.Y.S.3d ----, 2024 WL 4798798, 2024 N.Y. Slip Op. 05740 (4th Dept., 2024) the Appellate Division affirmed an order that, inter alia, granted the petitioner father’s amended petition to modify a prior order of custody and granted him primary physical residence of the parties’ three children.  The mother contended on appeal that she was denied effective assistance of counsel since counsel did not advise her to settle the case and did not adequately examine or cross-examine the witnesses, raise objections, or admit material into evidence. The Court noted that  “ ‘because the potential consequences are so drastic, the Family Court Act affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings. So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, a [parent’s] constitutional right to the effective assistance of counsel will have been met. It rejected the argument that counsel failed to advise the mother to settle the case, as it was unable to review the mother’s contention to the extent it involves matters outside the record on appeal.  It rejected her contention that the two youngest children were denied effective assistance of counsel since the attorney for the children (AFC) did not ascertain the wishes of his clients or communicate those wishes to the court and failed to submit a written closing argument. It 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”. “In 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”. A child in an Article 6 custody proceeding is entitled to effective assistance of counsel. The AFC’s failure to submit a written closing argument did not constitute ineffective assistance of counsel. Her contention that the AFC failed to meet with the children was speculative and based on matters outside the record and is therefore not properly before it. The record before it did not support the mother’s allegation. It noted that, although the AFC did not place on the record the wishes of his clients, the court held an in-camera hearing with the children. The mother failed to establish the absence of strategic or other legitimate explanations for counsel’s alleged shortcomings.’

 

 

Family Court

 

 

Family Court holds NYC Police Department domestic incident reports (“DIRs”) and videos taken from police officers’ body-worn cameras (“BWCs”) are not subject to the sealing provisions CPL § 160.50(1).

 

In Matter of N.J., 2024 WL 5114589 (Fam. Ct., 2024) the  New York City Administration for Children’s Services filed an Article 10 petition, alleging that the respondents, S.H. and F.D., the mother and stepfather of the child, respectively, neglected the then 16-year-old child by using excessive corporal punishment and/or assaulting her on April 14, 2024. Around that time, both respondents were arrested for the incident, and F.D. was also arrested for allegedly sexually assaulting the child on a different occasion. By the time the trial in this Family Court case began on August 19, 2024, the assault-related criminal charges had been dismissed against both respondents, but the sexual assault charges against F.D. remained pending in Criminal Court. At the trial, ACS sought to introduce into evidence, among other things, various records from the NYPD, including DIRs, BWCs, and other reports. The defense objected to this evidence on the grounds that the materials should be sealed due to the dismissal of the criminal cases. After hearing arguments, the court admitted portions of the records, including DIRs and BWCs, over objection. At the end of the trial, the court found that ACS had not proven neglect by a preponderance of the evidence, and the case was dismissed. The Family Court held that the  New York City Police Department (“NYPD”) domestic incident reports (“DIRs”) and videos taken from police officers’ body-worn cameras (“BWCs”) are not subject to the sealing provisions in NY Criminal Procedure Law (“CPL”) § 160.50(1). CPL § 160.50(1) provides broad protections to a defendant when criminal proceedings are terminated in favor of an accused: “Upon the termination of a criminal action or proceeding against a person in favor of such person ... all official records and papers, including judgments and orders of a court ... relating to the arrest or prosecution, including all duplicates and copies thereof, on file with ... any court [or] police agency ... shall be sealed and not made available to any person or public or private agency.” It held that unless such materials are specifically required to be sealed by statute, they should not be precluded from being used in other forums to aid in the truth-seeking process and the administration of justice.

 

Recent Legislation

 

 

Laws of 2024, Ch 541, § 2 amended Family Court Act §812 (1), effective November 25, 2024 

 

Laws of 2024, Ch 541, § 2 amended Family Court Act §812 (1), effective November 25, 2024, to add subdivision (f) which provides: “For purposes of this article, “members of the same family or household” shall mean the following… (f) persons who are related by consanguinity or affinity to parties who are or have been in an intimate relationship as defined in paragraph (e) of this subdivision.

 

Family Court Act §812 (1) now reads as follows:

 

1. Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, unlawful dissemination or publication of an intimate image, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree, coercion in the second degree or coercion in the third degree as set forth in subdivisions one, two and three of section 135.60 of the penal law between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing. For purposes of this article, “disorderly conduct” includes disorderly conduct not in a public place. For purposes of this article, “members of the same family or household” shall mean the following:

(a) persons related by consanguinity or affinity;

(b) persons legally married to one another;

(c) persons formerly married to one another regardless of whether they still reside in the same household;

(d) persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and

(e) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”; and

(f) persons who are related by consanguinity or affinity to parties who are or have been in an intimate relationship as defined in paragraph (e) of this subdivision.

 

 

Laws of 2024, Ch 568 amended Family Court Act §§115 & 439, effective April 1, 2025

to authorize an application to be made in family court for the name change of a child under eighteen as part of a pending, related proceeding.

 

Family Court Act §115 (c) was amended by Laws of 2024, Ch 568, § 1 to  read  as            follows:

 

     (c)  The  family  court  has such other jurisdiction as is provided by

   law, including but not limited to: proceedings concerning  adoption  and

   custody  of children, as set forth in parts two and three of article six

   of this  act;  proceedings  concerning  the  uniform  interstate  family

   support  act,  as  set  forth in article five-B of this act; proceedings

   concerning children in foster care and care and custody of children,  as

   set  forth  in  sections  three  hundred fifty-eight-a and three hundred

   eighty-four-a of the social services law and article ten-A of this  act;

   proceedings  concerning  former  foster children as set forth in article

   ten-B of this act; proceedings concerning  destitute  children,  as  set

   forth  in article ten-C of this act; proceedings concerning guardianship

   and custody of children by reason of the death  of,  or  abandonment  or

   surrender  by,  the  parent  or  parents, as set forth in sections three

   hundred eighty-three-c, three hundred eighty-four and paragraphs (a) and

   (b) of subdivision four of section three hundred  eighty-four-b  of  the

   social  services  law;  proceedings  concerning standby guardianship and

   guardianship of the person as set forth in part four of article  six  of

   this  act  and article seventeen of the surrogate's court procedure act;

   [and] proceedings concerning the interstate compact on juveniles as  set

   forth  in chapter one hundred fifty-five of the laws of nineteen hundred

   fifty-five, as amended; proceedings concerning the interstate compact

   on the placement of children, as set  forth  in  section  three  hundred

   seventy-four-a of the social services law; proceedings concerning

   the uniform child custody jurisdiction and enforcement act, as set forth

   in  article  five-A  of  the  domestic  relations  law;  and proceedings

   concerning the change of the name of a child as  set  forth  in  section

   sixty of the civil rights law.

 

 

   Family Court Act §439 (b) was amended by Laws of 2024, Ch 568, § 2 to  read  as

   follows:

 

     (b)  In  any  proceeding  to  establish  paternity which is heard by a

   support magistrate, the support magistrate shall advise the  mother  and

   putative  father  of  the  right  to be represented by counsel and shall

   advise the mother and putative father of their right to  blood  grouping

   or  other  genetic  marker  or DNA tests in accordance with section five

   hundred thirty-two of this act. The support magistrate shall order  that

   such  tests be conducted in accordance with section five hundred thirty-

   two of this act. The support magistrate shall be empowered to  hear  and

   determine  all matters related to the proceeding including the making of

   an order of filiation pursuant to section five hundred forty-two of this

   act  and  an  application  to  change  the name of the child pursuant to

   section sixty of the civil rights law, provided, however, that where the

   respondent denies paternity and paternity is contested on the grounds of

   equitable estoppel, the support magistrate shall  not  be  empowered  to

   determine the issue of paternity, but shall transfer the proceeding to a

   judge  of the court for a determination of the issue of paternity. Where

   an order of filiation is issued by a judge in a paternity proceeding and

   child support is in issue, the judge, or support magistrate upon  refer-

   ral  from the judge, shall be authorized to immediately make a temporary

   or final order of support, as applicable. Whenever an order of filiation

   is made by a support magistrate, the support magistrate also shall  make

   a final or temporary order of support.

 

 

Laws of 2024, Chapter 579 amended CPLR 2111(a) and 2112, added new Family  Court  Act § 214(c),  repealed and replaced Family Court Act § 214(b) and various other statutes in relation  to  filing  by electronic means effective December 13, 2024.

 

Laws of 2024, Chapter 579  § 6  repealed Family  Court  Act § 214(b)  and a new Family  Court  Act § 214 (b) was added to read as follows:

    

   (b)(i)  Notwithstanding any other provision of law, the chief adminis-

   trator, with the approval of the administrative board of the courts, may

   promulgate rules authorizing a program in the use  of  electronic  means

   ("e-filing") in the family court for: (1) the origination of proceedings

   in  such  court,  and  (2)  the  filing and service of papers in pending

   proceedings.

   (ii) Participation in this program may be required or may be voluntary

   as provided by the chief administrator, except that it shall be strictly

   voluntary  as to any party to an action or proceeding who is not repres-

   ented by counsel unless such party, upon his or her request, chooses  to

   participate.

 

Laws of 2024, Chapter 579, § 17 added a new paragraph (c) to section 214 of the Family Court Act and relettered existing paragraphs (c) through (h) to be (d)

through (i)) prescribing rules governing both voluntary and mandatory

e-filing in Family Court. Regarding the latter, new paragraph (c) continues the present exemptions from mandatory e-filing for unrepresented persons and for certain lawyers without technical skills or equipment. It also continues the requirement that the Chief Administrative Judge secure approval of authorized local presentment and child

protective agencies, along with the Family Court bars representing parents and children, respectively, before instituting mandatory e-filing in Family Court in a county. (See 2024 NY Legis Memo 579)

 

 

Family  Court  Act § 214 (c), (d), (e), (f) and (g) were  relettered subdivisions (d), (e), (f), (g) and (h) and a new Family  Court  Act § 214 (c) was added to read as follows:

 

     (c) (i) Where participation in this program is to be voluntary:

     (1)  filing  a  petition  by  electronic  means with the court for the

   purpose of originating a proceeding shall not require the consent of any

   other party; nor shall the failure of a party or  other  person  who  is

   entitled  to  notice  of the proceedings to consent to participation bar

   any other party from filing and serving papers by electronic means  upon

   the  court  or  any  other party or person entitled to receive notice of

   such proceeding who has consented to participation;

     (2) all parties shall be notified clearly, in  plain  language,  about

   their options to participate in filing by electronic means;

     (3)  no  party to an action or proceeding shall be compelled, directly

   or indirectly, to participate;

     (4) where a party is not  represented  by  counsel,  the  court  shall

   explain  such  party's  options for electronic filing in plain language,

   including the option for expedited processing, and shall inquire whether

   he or she wishes to  participate,  provided  however  the  unrepresented

   litigant  may  participate  in the program only upon his or her request,

   which shall be documented in the case file, after said  party  has  been

   presented  with  sufficient information in plain language concerning the

   program;

     (5) upon the filing of a petition with the court by electronic  means,

   a  party  to  the  proceeding  and any attorney for such person shall be

   permitted to immediately review and obtain copies of such documents  and

   papers  if  such person or attorney would have been authorized by law to

   review or obtain copies of such documents and papers if  they  had  been

   filed with the court in paper form.

     (ii) Where participation in this program is to be required:

     (1)  such  requirement  shall  not be effective in a court in a county

   unless the chief administrator shall:

     (A) first consult with and obtain the  agreement  of  each  authorized

   presentment  agency,  child  protective  agency,  the  family  court bar

   providing representation to parents, and the family court bar  providing

   representation  to  children  (as  represented by the head of each legal

   services organization representing parents and/or children, the head  of

   each  public defender organization, and president of the local bar asso-

   ciation as applicable) of such county, provide all persons or  organiza-

   tions,  or their representative or representatives, who regularly appear

   in proceedings in the family court of such county, in which  proceedings

   the  requirement  of  consent is to be eliminated with reasonable notice

   and an opportunity to submit comments with respect thereto and give  due

   consideration  to all such comments, and consult with the members of the

   advisory committee continued pursuant to subparagraph (vi) of  paragraph

   (u)  of  subdivision  two of section two hundred twelve of the judiciary

   law; and

     (B) afford all those with whom he or she consults pursuant  to  clause

   (A)  of  this  subparagraph  with  a  reasonable  opportunity  to submit

   comments with respect to the program, which comments  he  or  she  shall

   consider  and shall post for public review on the office of court admin-

   istration's website; and

     (C)  consult  with  the  members  of  the advisory committee continued

   pursuant to subparagraph (vi) of paragraph (u)  of  subdivision  two  of

   section two hundred twelve of the judiciary law; and

     (2)  as  provided  in subdivision (d) of this section, no party who is

   not represented by counsel nor any counsel in an affected case who  opts

   out  of  participation  in  the program shall be required to participate

   therein.

 

 

Laws of 2024, Ch 589 amended CPLR §§ 1101, 1102, and 1103, as well as Criminal

Procedure Law § 380.55, to eliminate the use of the phrase "poor person" in relation to the waiver of costs, fees, and expenses for persons of insufficient means.

 

According to the legislative memorandum in support of the legislations the amendments are  intended to only remove language perceived as denigrating without any substantive change in the applicable legal standard. Separately, the addition of the terms "assets" and "real" to property are intended merely to clarify existing law and not as substantive changes to the information to be included in the supporting affirmation. Finally, these amendments collectively do not alter the broad discretion of the courts to waive fees, costs, and expenses or to appoint counsel under CPLR 1101 and 1102. In addition, CPLR 1101 was amended to provide that a party may submit an affirmation when moving for a waiver of costs, fees, and expenses. This change will help make it clear that a party is no longer required to submit a notarized affidavit when making such motion. This should save individuals, many of whom are impecunious, the time, cost, and burden associated with locating a notary. (2024 NY Legis Memo 589)

 

 

     Laws of 2024, Ch 589 § 1 amended the article heading of article 11 of the civil practice law and rules to read as follows:  WAIVER OF COSTS, FEES, AND EXPENSES

 

     Laws of 2024, Ch 589 § 2 amended the section heading and CPLR 1101(a) to read as follows:

 

(a)  Motion;  affidavit  or  affirmation.    Upon motion of any  party, the court in which an

      action is triable, or to which an appeal has been or will be taken,  may

      waive the costs, fees, and expenses if such party has

      insufficient  means  to pay such costs, fees,

      and expenses.  Where a motion to

      waive  costs,  fees,  and  expenses is made in the court in

      which an appeal has been or will be taken, such court  shall  hear  such

      motion on the merits and shall not remand such motion to the trial court

      for  consideration. The moving party shall file an affidavit or affirma-

      tion setting forth the amount and sources of such  party's

      income  and  assets  and listing any real property owned by         

      such party with its value; that such  party  lacks

      sufficient means to pay the costs, fees, and expenses necessary to pros-

      ecute  or defend the action or to maintain or respond to the appeal; the

      nature of the  action;  sufficient  facts  so  that  the  merit  of  the

      contentions  can be ascertained; and whether any other person is benefi-

      cially interested in any recovery sought and, if so, whether every  such

      person  is  unable  to  pay such costs, fees, and expenses. An executor,

      administrator, or other representative may move for a waiv-

      er  of  costs,  fees,  and  expenses on behalf of a deceased, infant, or

      incompetent person.

 

     Laws of 2024, Ch 589 § 3 amended  CPLR 1102 (b) to read as follows:

 

        §  1102.  Privileges of [poor person] party with insufficient means to

      pay costs, fees, and expenses in an action or on appeal.

    

       (a)  Attorney. Where  a  court  grants  a  motion pursuant to subdivision (a) of

      section one thousand one hundred one of this article, the court, in  its

      order  determining the motion, may assign an attorney to the moving party.

 

        (b) Stenographic transcript. Where a court  grants a motion pursuant to

      subdivision (a) of section one thousand one hundred one of this article,

      the court clerk, within two days after the filing of such court's

      order with the court clerk, shall so notify  the  court  stenogra-

      pher, who, within twenty days of such notification shall make and certi-

      fy two typewritten transcripts of the stenographic minutes of said trial

      or  hearing,  and  shall  deliver  one  of said transcripts to the

      moving party or such moving party's attorney, and file the

      other with the court clerk together with an affidavit of  the  fact  and

      date  of such delivery and filing. The expense of such transcripts shall

      be a county charge or, in the counties within the city of  New  York,  a

      city  charge, as the case may be, payable to the stenographer out of the

      court fund upon the certificate of the judge presiding at the  trial  or

      hearing.    A  moving party may be furnished with a steno-

      graphic transcript without fee by order  of  the  court  in  proceedings

      other  than appeal, the fee therefor to be paid by the county or, in the

      counties within the city of New York by the city, as the case may be, in

      the same manner as is paid for transcripts  on  appeal.  Notwithstanding

      this  or  any  other  provision of law, fees paid for stenographic tran-

      scripts with respect to those proceedings specified in paragraph  a

      of subdivision one of section thirty-five of the judiciary law shall  be

      paid  by  the  state  in  the  manner  prescribed by subdivision four of

      section thirty-five of the judiciary law.

 

        (c) Appeals. On an appeal or motion for permission to appeal  where  a

      court  grants  a  motion  pursuant to subdivision (a) of

      section one thousand one hundred one of this article, the  moving  party

      may  submit  typewritten  briefs  and appendices, furnishing one legible

      copy for each appellate justice.

 

       (d) Costs and fees. Where  a  court  grants  a  motion

      pursuant  to  subdivision (a) of section one thousand one hundred one of

      this article, the moving party shall not be liable for  the  payment  of

      any  costs or fees unless a recovery by judgment or by settlement is had

      in such moving party's favor, in which event the court may  direct

      such party to pay out of the recovery all or part of the costs and

      fees, a reasonable sum for the services and expenses of [his] any attor-

      ney  assigned  to  such party and any sum expended by the county or city

      under subdivision (b) of this section.

 

 

    Laws of 2024, Ch 589 §4 amended CPLR 1103 to read as follows:

 

     §1103. Distribution of recovery in favor of [poor person] party with

      insufficient means to pay costs, fees, and expenses. Where a court

     grants a motion pursuant to subdivision (a) of section one thousand  one

     hundred  one  of this article, recovery by judgment or by settlement had

     in favor of the moving party shall be paid to the clerk of  the court in which the order          determining the motion  was  entered,  to  await  distribution  pursuant to court order.

 

 

December 16, 2024

 

Court of Appeals

 

 

In an electronic filing case, where leave to appeal from an order of the appellate division is sought,  service of the motion for permission to appeal via filing on the NYSCEF docket for the trial court is effective to start CPLR 5513 (b)'s 30-day clock

 

In Ruisech v. Structure Tone Inc., --- N.E.3d ----, 2024 WL 4874339 (N.Y.), 2024 N.Y. Slip Op. 05866 (2024), the Court of Appeals noted that  CPLR 5513(b) provides that the 30-day period to move for permission to appeal shall be computed from the date of service by a party upon the party seeking permission of a copy of the judgment or order to be appealed from and written notice of its entry, or, where permission has already been denied by order of the court whose determination is sought to be reviewed, of a copy of such order and written notice of its entry. “To be effective to start CPLR 5513 (b)'s 30-day clock, service must comply with CPLR 2103. CPLR 2103 (b) (7), in turn, empowers the Chief Administrative Judge to authorize electronic service. The Chief Administrative Judge has exercised this authority by promulgating Uniform Rules for Trial Courts (22 NYCRR) § 202.5-b (h) (2), which provides that in actions…that are subject to electronic filing, parties may serve “notice of entry of an order” by filing “a copy of the order . . . and written notice of its entry” on its New York State Courts Electronic Filing System (NYSCEF) site, thus causing that site to transmit “notification of receipt of the documents, which shall constitute service thereof by the filer” (see also 22 NYCRR 202.5-bb [a] [1] [making section 202.5-b applicable to all electronic filing cases]). The relevant rules are not limited to service of trial court orders; and they neither prohibit nor render ineffective service of an intermediate appellate court order with notice of its entry by filing on the trial court's NYSCEF docket--as opposed to the NYSCEF docket of the intermediate appellate court (see generally CPLR 2103 [b] [7]; 5513 [b]; 22 NYCRR 202.5-b-- 202.5-bb). Thus, in an electronic filing case, service via filing on the NYSCEF docket for the trial court is effective to start CPLR 5513 (b)'s 30-day clock.”

 

Law and the Family New York cited in Recent Court of Appeals opinions

 

In Celinette H.H. v. Michelle R., 40 N.Y.3d 1047, 201 N.Y.S.3d 317 (2023), in a dissenting opinion, Judge Rivera pointed out that the Court granted the grandmother’s cross-motion to dismiss on the sole ground presented, that the “illegal detention is not a precondition for habeas relief in this context, and there is no textual support for a preexisting custody order requirement.⁸”  In footnote 8 Judge Rivera wrote:

 

“One New York family law treatise does not even read Kiara B. as imposing a predicate order requirement on a habeas writ (see Joel R. Brandes, 7 Law and the Family New York § 66:35 n 18, Habeas Corpus Proceedings, Generally [2023 ed]; see also Gary Muldoon, Handling a Family Law Case in New York § 7.1, at 235 [2023 ed] [recognizing that habeas corpus brought by a parent is a “method of obtaining custody or visitation”]).

In Howell v City of New York, 39 N.Y.3d 1006, 182 N.Y.S.3d 11, (2022) a negligence action against the city of New York and police officers, the plaintiff alleging that they failed to provide her sufficient protection to prevent an assault in which she was thrown from third-floor apartment window by her ex-boyfriend against whom she had protection order. The Court of Appeals affirmed. It held that the plaintiff did not justifiably rely on the city’s or police officers’ affirmative undertaking. Judge Wilson filed a dissenting opinion, in which Judge Rivera concurred in part in a separate dissenting opinion in which she cited Law and the Family New York as follows:

 

“Additionally, various criminal statutes have been enacted or amended to address violence against current or former intimate partners (see e.g. Penal Law §§ 120.00; 120.05; 120.10; 120.13-120.15; 120.45-120.60; 135.00-135.30; see generally 11 Joel R. Brandes, Law and the Family New York § 86:15 at 646-648 [2022-2023 ed]).

 

 

Appellate Division, First Department

 

 

In an electronic filing case documents denominated by their e-filed docket number on the e-filing system from a prior proceeding were properly considered under CPLR 2214(c)

 

In Matter of Dubuche v. New York City Tr. Auth., 230 A.D.3d 1026, 217 N.Y.S.3d 66 (1st Dep’t 2024), the Appellate Division held that the trial court properly considered electronically filed documents denominated by their e-filed docket number on the e-filing system from a prior proceeding. It held that CPLR 2214(c) permits a party, in an e-filed case, to refer in motion papers to previously e-filed documents by docket number.  Although the emails and the police report were not submitted with the petitioner's moving papers, the court properly considered them because they had been electronically filed previously in a prior proceeding and were properly referred to by the petitioner, giving the docket numbers on the e-filing system (CPLR 2214 [c]).

 

 

In Neglect proceeding the 911 calls from the adult son in which he reported that the mother hit him in the face and chased him with a pocketknife were properly admitted into evidence as excited utterances, which did not require corroboration.          

 

In Matter of I.L.A., --- N.Y.S.3d ----, 2024 WL 4982197 (Mem), 2024 N.Y. Slip Op. 06113 (1^st Dept.,2024) the Appellate Division affirmed an order of the Family Court that found that the respondent mother neglected the subject child. The admissible evidence, including 911 calls placed by the mother’s adult son supported the finding that the child’s emotional and mental condition was impaired or in imminent danger of being impaired when the mother, while intoxicated, engaged in an act of domestic violence against the adult son in the presence of the child. In addition, the adult son’s 911 call, as well as statements made by the child to a caseworker, support the finding that the mother neglected the child by regularly drinking to excess without participating in or completing an alcohol treatment program (see Family Court Act § 1046[a][iii]). The 911 calls from the adult son in which he reported that the mother hit him in the face and chased him with a pocketknife were properly admitted into evidence as excited utterances, which did not require corroboration (see Matter of Taveon J. [Selina T.], 209 A.D.3d 417, 418, 175 N.Y.S.3d 61 [1st Dept. 2022]). The mother did not deny that the recording of her own 911 call, in which she repeatedly stated that she would beat the adult son if he did not leave, was properly admitted into evidence. The court also properly considered the child’s initial statements to the caseworker that the mother slapped the adult son and drank alcohol to the point that she forgot things and needed help walking. The court properly admitted into evidence orders issued in prior neglect proceedings in which the Family Court found that the mother neglected the adult son by inflicting excessive corporal punishment. Proof of neglect as to one child is admissible evidence of neglect as to another child (see Family Court Act § 1046[a][I]). Although the petitioner did not seek to establish that the child was derivatively neglected based on the mother’s prior neglect of the adult son, the prior orders were relevant to show the history of the mother’s use of violence against him, and they supported the Family Court’s determination that the mother’s testimony lacked credibility.

 

 

Appellate Division, Second Department

 

 

In a UIFSA modification proceeding brought pursuant to Family Court Act 580–613(a), the court must apply the procedural and substantive law of this state. The Order was reversed where the Court applied Colorado law in calculating the father’s modified support obligation

 

In Matter of O’Connor v Shaw, --- N.Y.S.3d ----, 2024 WL 4964813, 2024 N.Y. Slip Op. 06046 (2d Dept.,2024) the parties, who had two children, divorced in 2018 in the state of Colorado. Pursuant to an order of the District Court, Boulder County Colorado the parties were to recalculate child support on an annual basis pursuant to Colorado Revised Statutes § 14–10–115(14). In August 2018, the parties and their children relocated from Colorado to New York and have resided in New York since that time. In November 2020, after a hearing, a Support Magistrate directed the father to pay child support of $1,544.29 per month, which was the father’s presumptive child support obligation under Colorado Revised Statutes § 14–10–115. The Appellate Division reversed and remitted for recalculation of the father’s modified child support obligation in accordance with Domestic Relations Law § 240[1–b]. It observed that the  Uniform Interstate Family Support Act, article 5–B of the Family Court Act, grants continuing, exclusive jurisdiction over a child support order to the state that issued the order (Family Ct Act § 580–205[a]). As relevant herein, the issuing state loses such jurisdiction where none of the parties or children continue to reside in that state. (Family Ct Act § 580–613[a]). The parties and their children resided in New York and the mother registered the Colorado support order in this state. Thus, the Family Court had jurisdiction to adjudicate the proceeding (see 28 U.S.C. § 1738; Family Ct Act §§ 580–611[a]; 580–613[a]). Family Court Act § 580–613(b) provides that, in a modification proceeding brought pursuant to section 580–613(a), the court shall apply the procedural and substantive law of this state. Here the Support Magistrate improperly applied Colorado law in calculating the father’s modified support obligation (see Family Ct Act § 580–613[b]; Matter of Brooks v. Brooks, 171 A.D.3d at 1463, 99 N.Y.S.3d 526; Matter of Saxton v. Saxton, 267 A.D.2d at 689, 699 N.Y.S.2d 537). Accordingly, the Family Court should have granted the mother’s objections.

 

             

Sanctions were properly awarded where defendant’s motion to modify the stipulation was not frivolous when it was filed but the defendant frivolously continued to pursue the motion after he became aware that the factual predicate for the requested relief no longer existed

 

In Finley v Finley, --- N.Y.S.3d ----, 2024 WL 4964802, 2024 N.Y. Slip Op. 06028 (2d Dept., 2024) the plaintiff and the defendant executed a stipulation of custody and parental access in which they agreed to joint legal custody of their child with primary residential custody to the plaintiff. Subsequently, the defendant moved, inter alia, to modify the stipulation to award him sole custody of the child. The change in circumstances asserted by the defendant was that the plaintiff had become unavailable to care for the child, as she had been arrested and incarcerated in Florida based upon charges initiated by the defendant’s mother for unlawfully recording a telephone conversation between the plaintiff and the mother. Before the return date of the defendant’s motion, the plaintiff was released from jail, and the defendant was informed that the plaintiff had resumed her parental obligations. Nevertheless, the defendant refused to withdraw his motion. The plaintiff moved pursuant to 22 NYCRR 130–1.1 to impose sanctions against the defendant and for an award of counsel fees. The defendant moved pursuant to 22 NYCRR 130–1.1 to impose sanctions against the plaintiff’s counsel and for an award of counsel fees. The Supreme Court held a hearing on the motions, granted the plaintiff’s motion, and denied the defendant’s motion. The Appellate Division held that the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion. Although the defendant’s motion, to modify the stipulation was not frivolous when it was filed, the defendant frivolously continued to pursue the motion after he and his counsel became aware that the factual predicate for the requested relief no longer existed. Moreover, the evidence presented at the hearing demonstrated that the defendant continued to pursue the motion to gain leverage to further his personal financial interests. The plaintiff was thus required to defend against a motion that was, at best, completely without merit. Additionally, in light of evidence that the defendant was pressing a frivolous claim, thereby abusing the judicial process and creating unnecessary litigation, the Supreme Court properly awarded counsel fees to the plaintiff.

 

 

Entry of Domestic Relations Order in April 2020 pursuant to 1990 divorce judgment, and its subsequent amendment to include benefits received from 2007 to 2020, where the defendant retired in 2006, not time-barred

 

In Pasquale v Pasquale, --- N.Y.S.3d ----, 2024 WL 4897624, 2024 N.Y. Slip Op. 05984 (2d Dept., 2024) a stipulation incorporated, but not merged, in the parties' judgment of divorce entered May 21, 1990. provided, inter alia, that the plaintiff was entitled to a share of the defendant’s pension as of the date the defendant retired and first began receiving benefits. In June 2020, the plaintiff submitted a proposed domestic relations order to the Supreme Court which provided for payment of her share of the defendant’s pension, retroactive to April 2020. The court signed the proposed domestic relations order submitted by the plaintiff at that time. Thereafter, the plaintiff moved for the issuance of an amended domestic relations order and the entry of a money judgment. The plaintiff contended, among other things, that she had learned that the defendant had retired effective December 30, 2006, and had commenced receiving pension benefits at that time. The plaintiff sought to include in an amended domestic relations order the amount of pension arrears accrued from January 1, 2007, to April 4, 2020, and the entry of a money judgment in the amount of the arrears. The defendant opposed the motion on the ground, inter alia, that the plaintiff’s motion was time-barred. The court granted the plaintiff’s motion and entered a money judgment in favor of the plaintiff and against the defendant for $84,195.27. The Appellate Division affirmed. It held that contrary to the defendant’s contention, the Supreme Court properly determined that the plaintiff’s motion, inter alia, for the issuance of an amended domestic relations order was not time-barred (citing Kraus v. Kraus, 131 A.D.3d 94, 14 N.Y.S.3d 55).

 

 

A court may order post-termination parental visitation when the termination of parental rights results from a voluntary surrender under Social Services Law § 383–c, but an adversarial proceeding pursuant to Social Services Law § 384–b does not offer that option.

 

In Matter of Allyana  J., --- N.Y.S.3d ----, 2024 WL 4897662, 2024 N.Y. Slip Op. 05979 (2d Dept., 2024) the Family Court, inter alia, found that the mother and the father permanently neglected the children and terminated their parental rights but entered a suspended judgment, which was extended pursuant to Family Court Act § 633(b) on or around July 19, 2022. Subsequently, DSS moved to lift the suspended judgment based on the mother’s noncompliance with its terms and terminate her parental rights pursuant to Social Services Law § 384–b. DSS also filed a companion neglect petition pursuant to Family Court Act article 10. At a hearing, the parties reached a global settlement agreement, whereby the mother, inter alia, consented to the entry of a finding of neglect without admission pursuant to Family Court Act § 1051(a), as well as a finding that she violated the terms of the suspended judgment and to the termination of her parental rights to the children. By order dated October 30, 2023, the Family Court authorized sibling visitation between the children Michael J. and Edward J. and their siblings but did not award the mother post-termination visitation with Michael J. and Edward J. The Appellate Division affirmed. It held that a court may order post-termination parental visitation when the termination of parental rights results from a voluntary surrender under Social Services Law § 383–c, but an adversarial proceeding pursuant to Social Services Law § 384–b does not offer such option (see Matter of Hailey ZZ. [Ricky ZZ.], 19 N.Y.3d 422, 437–438, 948 N.Y.S.2d 846). Since these were adversarial proceedings pursuant to Social Services Law § 384–b, the Family Court properly denied post-termination visitation between the mother and Michael J. and Edward J.

 

 

Native American nation officials may be sued in New York State courts to enjoin their off-reservation, ongoing violations of New York State law.

 

In Commissioner of New York State Department of Transportation v. Polite, --- N.Y.S.3d ---, 2024 WL 4964811, 2024 N.Y. Slip Op. 06023 (2d Dept.,2024) the nonparty Shinnecock Indian Nation (Nation), a federally recognized Indian Tribe, owned certain land known as the Westwoods, which consists of approximately 80 acres located west of the Shinnecock Canal. The defendants were members of the Council of Trustees of the Nation, which is the governing body of the Nation pursuant to its Constitution. The Shinnecock Reservation (Reservation) is located east of the Shinnecock Canal in Southampton. The Westwoods allegedly is not part of the Reservation, nor is it held in trust by the federal Bureau of Indian Affairs. In 1959, the plaintiff State of New York allegedly acquired a permanent easement for highway purposes over approximately 3.62 acres of the Westwoods (subject property). Thereafter, the State built Sunrise Highway, also known as State Route 27 (highway), which runs through the subject property. The State, through the Department of Transportation (DOT), operates and maintains the highway. In or around 2019, the Trustee defendants allegedly entered into a contract with the defendants Larry Clark, Digital Outdoor Advertising, LLC, Idon Media, LLC, and/or Iconic Digital Displays, LLC, to construct and operate two structures, which the plaintiffs refer to as billboards and which the Trustee defendants refer to as monuments (the structures), within the right-of-way for the highway in the State’s easement. Pursuant to the contract, the Nation would own the two structures. According to engineering plans allegedly provided by the defendants to the plaintiffs, each of the structures would be approximately 60 feet tall and 20 feet wide. Those same plans show that the tops of each of the structures would display the Nation’s seal and the centers would have double-sided LED displays that would be approximately 30 feet by 20 feet. The plans show what appears to be a car advertisement on one of the center LED displays. In March and April 2019, the defendants allegedly had trees cut and removed from within the highway right-of-way, without obtaining a work permit from the DOT, and the DOT allegedly issued two stop-work orders to the defendants’ alleged contractors. Thereafter, the defendants allegedly began trenching and placing large equipment, a pile of stones, and support piles within the highway right-of-way, without a work permit from the DOT. The DOT allegedly issued another stop work order and a cease and desist letter to the defendants. The plaintiffs alleged that the defendants ignored the stop-work orders and the cease-and-desist letter. On May 24, 2019, the plaintiffs commenced this action against the Trustee defendants in their official capacities; Clark, Digital Outdoor Advertising, LLC, and Idon Media, LLC (the commercial defendants); and another entity. The Nation was not named as a party in this action. The amended complaint asserted three causes of action against all defendants. The first cause of action alleged that the defendants were committing a continuing violation of Highway Law § 52 by installing the structures within the highway right-of-way without obtaining a work permit. The second cause of action alleged that the defendants created and continued to maintain a public nuisance by erecting, placing, installing, and continuing to maintain the structures.

 

Instead of interposing an answer, the Trustee defendants moved under CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. They contended that the Nation had sovereign immunity from suits in New York State courts and that the Nation’s sovereign immunity extended to the Trustee defendants. They also contended that the amended complaint should be dismissed for failure to join a necessary party, as the Nation could not be joined because of its sovereign immunity. The plaintiffs contended that the Trustee defendants could be sued in New York State courts to enjoin their violations of state law under a legal theory analogous to the theory announced in Ex parte Young.  209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. They also contended that the amended complaint should not be dismissed for failure to join the Nation as a necessary party.

 

The Appellate Division held that Native American nation officials may be sued in New York State courts to enjoin their off-reservation, ongoing violations of New York State law.  It observed that Native American nations are “domestic dependent nations” that retain the sovereignty they enjoyed prior to the adoption of the United States Constitution except to the extent that their sovereignty has been abrogated or curtailed by Congress. As such, Native American nations “possess the common-law immunity traditionally enjoyed by sovereign powers”. This includes immunity from suit in New York State courts, absent the consent of the Native American nation.  Moreover, the doctrine of Native American nation sovereign immunity extends to individual officials of Native American nations acting in their representative capacity and within the scope of their authority. Although members of a Native American nation, “even officials, are amenable to suit if the subject of the suit is not related to the officials’ performance of official duties” However, notwithstanding sovereign immunity, Native Americans “going beyond reservation boundaries are subject to any generally applicable state law,” “[u]nless federal law provides differently.” It held that lawsuits under an Ex parte Young theory are an exception to the doctrine of sovereign immunity. In Ex parte Young, 209 U.S. at 159–160, 28 S.Ct. 441 , the United States Supreme Court held that although the states have sovereign immunity, where state officials claim to be acting under the authority of the state, they can be sued to enjoin ongoing violations of federal law. Thus, under the Ex parte Young exception to state sovereign immunity, although federal courts cannot give orders directly to a state, federal courts can enjoin state officials in their official capacity from ongoing violations of federal law. Similarly, officials of Native American nations may be sued in their official capacities for prospective injunctive relief based on violations of federal law. The doctrine does not apply when the sovereign is the real, substantial party in interest. Actions that “seek to recover funds from tribal coffers or establish vicarious liability of a tribe for damages ... are barred by tribal sovereign immunity even when nominally styled as against individual officers”. By contrast, causes of action “seeking prospective injunctive relief ordinarily may proceed against tribal officers sued in their official capacities under the doctrine of Ex parte Young. ” The Ex parte Young doctrine permits actions for prospective nonmonetary relief against state or Native American nation officials in their official capacity to enjoin them from violating state or federal law, without the presence of the immune state or Native American nation. Declaratory relief may issue against officials of Native American nations in the same circumstances. 

 

 

Appellate Division, Third Department

 

 

Where an order directs a parent to make child support payments, a court need not deduct claimed child and spousal support payments where there is no proof that the payments were actually made.

 

In Matter of Zwicklebauer v Hannigan, --- N.Y.S.3d ----, 2024 WL 4896002, 2024 N.Y. Slip Op. 05921 (3d Dept., 2024) the Petitioner (mother) and respondent (father) were the parents of a child (born in 2019). The parties were never married and the father had two older children with his wife, from whom he was apparently separated. By consent order entered in the Family Court in August 2019, following an appearance on the day after the subject child was born, the father was directed to pay his wife $2,800 per month in child support and $2,200 per month in spousal support.  In October 2019, the mother filed a petition for child support against the father. The Support Magistrate (ordered the father to pay $2,400 per month in basic child support, plus an additional $1,179.24 per month toward childcare bills and health insurance premiums. The father’s objections were denied. The Appellate Division affirmed. It, inter alia, rejected the father’s argument that the Support Magistrate erroneously failed to consider his support obligations to his other children in calculating his income. Although “amounts actually paid by a parent pursuant to a court order or written agreement for the support of a spouse or child who are not the subjects of the instant proceeding shall be deducted from the parent’s income for child support purposes” (Family Ct Act § 413[1][b][5][vii][B], [D]) the father did not provide any documentary proof showing that he actually made the child and spousal support payments set forth in the August 2019 consent order. Although the father affirmed in a November 6, 2019, sworn financial disclosure affidavit that he paid $2,200 in spousal support and $2,800 in child support, and in a February 16, 2022, sworn financial disclosure affidavit that he pays child support pursuant to the August 2019 consent order, he offered no corresponding bank statements or other records at the hearing, and no such documentation was included in the record. He opted not to testify at the fact-finding hearing, precluding direct inquiry into this issue. The mother testified during cross-examination that she reviewed the records provided by the father and found no checks payable to the wife totaling $5,000 to cover the monthly support obligation under the August 2019 consent order. The father did not call any witnesses at the hearing and waived both opening and closing statements. The Appellate Division held that a court need not deduct claimed child and spousal support payments where, as here, there is no proof that the payments were actually made (see Baumgardner v. Baumgardner, 98 A.D.3d 929, 931, 951 N.Y.S.2d 64 [2d Dept. 2012]; Curran v. Curran, 2 A.D.3d 391, 392, 767 N.Y.S.2d 852 [2d Dept. 2003]).

 

 

Supreme Court

 

A 529 account is a tax-deferred account. A post-commencement withdrawal from a 529 account without a court order or written agreement is violative of the Automatic Orders under DRL § 236(B)(2)(b)(2).

 

In LKF v. MTF, --- N.Y.S.3d ----, 2024 WL 5050050, 2024 N.Y. Slip Op. 24312 (Sup. Ct., 2024) the parties set up three 529 accounts during their marriage. The Defendant opened those accounts. The Defendant titled all three accounts in his name and listed himself as the beneficiary of one of those accounts, listed the plaintiff as the beneficiary of the second account, and listed their daughter, as the beneficiary of the third account. The 529 account which was opened first had grown to at least $162,000.00 when Defendant withdrew $150,000.00 from it.  Plaintiff argued that while Defendant may be the “title” owner, the money was meant for the children. Defendant argued that the withdrawal of $150,000.00 from the 529 account was a permissible withdrawal under DRL § 236(B)(2)(b)(1), which permits parties from invading certain accounts to pay their reasonable counsel fees. The Supreme Court, inter alia, classified a 529 account as a tax-deferred account under DRL § 236(B)(2)(b)(2); and found that a post-commencement withdrawal from a 529 account - without a court order or written agreement - is violative of the Automatic Orders. The Court directed the restoration of the funds withdrawn. The Court pointed out that a 529 account is a type of investment account that someone can use for higher education savings. Federally tax-deferred qualified withdrawals are tax-free. The account owner picks investments, assigns a beneficiary, and determines how the money is used. A New York State taxpayer can also benefit from the state tax deduction. The beneficiary is the future student or the person for whom the account was opened. The account can be opened for a child, grandchild, friend, or even the party opening the account. The money in the account can be withdrawn for other uses, but there is a 10% penalty tax on earnings (as well as federal and state income taxes) which may apply if the money is withdrawn to pay for nonqualified expenses. A 529 account is a tax-deferred asset. 529 college savings accounts are funded with tax-deferred dollars for qualified tuition programs. See Tucker v. Tucker, 67 Misc 3d 1217(A) at fn. 1 (Supreme Court 2020); Messinger v. Messinger, 66 Misc 3d 1222(A) (Supreme Court 2019); See also D.S.C. v. P.C., 68 N.Y.S.3d 378 (Supreme Court 2017) (529 college savings accounts are funded with tax-deferred dollars). Supreme Court held that a 529 account is a tax-deferred asset and the withdrawal violated DRL § 236(B)(2)(b)(2), which proscribes withdrawals absent court order or written consent for any purpose.

 

 

December 1, 2024

 

Recent Legislation

 

 

Crime of Adultery Repealed

 

Laws of 2024, Chapter 462 effective November 22, 2024, repealed the crime of adultery (Penal Law 255.17) in New York.

 

Family Court Act §812 amended effective November 25, 2024

 

Family Court Act §812 was amended to expand the definition of "members of the same family or household" to include persons who are “related by consanguinity or affinity to parties who are or have been in an intimate relationship”. Family Court Act §812 (f) was added to provide that for purposes of article 8 of the Family Court Act, “members of the same family or household” shall include persons who are related by consanguinity or affinity to parties who are or have been in an intimate relationship as defined in Family Court Act §812 (e). Laws of 2024, Chapter Ch 541, § 2, effective November 25, 2024. There was an identical amendment to the criminal procedure law.

Domestic Relations Law §240 (1-b) (5) (iv) was amended by Laws of 2024, Chapter 327, and effective September 27, 2024, to read as follows:

 

 (iv) at the discretion of the court, the court may attribute or impute

 income from such other resources as may be available to the parent,

 including, but not limited to:

 (A) non-income producing assets,

 (B) meals, lodging, memberships, automobiles or other perquisites that

 are provided as part of compensation for employment to the extent that

 such perquisites constitute expenditures for personal use, or which

 expenditures directly or  indirectly confer personal economic

 benefits,

 (C) fringe benefits provided as part of compensation for employment,

 and

 (D) money, goods, or services provided by relatives and friends;

 In determining the amount of income that may be attributed or imputed,

 the court shall consider the specific circumstances of the parent, to

 the extent known, including such factors as the parent's assets, residence, employment and earning history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, record of seeking work, the local job market, the availability of  employers willing to hire the parent, prevailing earnings level in the

 local community, and other relevant background factors such as the age,

 number, needs, and care of the children covered by the child support

 order. Attribution or imputation of income shall be accompanied by

 specific written findings identifying the basis or bases for such determination utilizing factors required or permitted to be considered pursuant to this clause.

 

 

Domestic Relations Law §240 (1-b) (5) (v) was amended by Laws of 2024, Chapter 327, and effective September 27, 2024 to read as follows:

(v) an amount imputed as income based upon the parent's former

resources or income, if the court determines that a parent has reduced

 resources or income in order to reduce or avoid the parent's obligation

for child support. However, incarceration shall not be considered

voluntary unemployment.

 

Domestic Relations Law §240 (1-b) (k) was amended by Laws of 2024, Chapter 327, effective September 27, 2024 to read as follows:

 

(k) When a party has defaulted and/or the court is otherwise presented

with insufficient evidence to determine gross income,

the support obligation shall be based on available information about the specific circumstances of the parent, in accordance with clause (iv) of subparagraph five of paragraph (b) of this subdivision. Such order may be retroactively modified upward, without a showing of change in circumstances.

 

Domestic Relations Law §236 (B) (9) (b) (2) (i) was amended by Laws of 2024, Chapter 327, and effective September 27, 2024 to read as follows:

 

(i) The court may modify an order of child support, including an order

incorporating without merging an agreement or stipulation of the

parties, upon a showing of a substantial change in circumstances.

Incarceration shall not be considered voluntary unemployment and shall

not be a bar to finding a substantial change in circumstances.

 

Family Court Act 413 (1)(b)(5)(iv) was amended by Laws of 2024, Chapter 357, effective September 27, 2024, to read as follows:

 

 (iv) at the discretion of the court, the court may attribute or impute

 income from such other resources as may be available to the parent,

 including, but not limited to:

 (A) non-income producing assets,

 (B) meals, lodging, memberships, automobiles or other perquisites that

 are provided as part of compensation for employment to the extent that

 such perquisites constitute expenditures for personal use, or which

 expenditures directly or  indirectly confer personal economic  benefits,

 (C) fringe benefits provided as part of compensation for employment,

 and

 (D) money, goods, or services provided by relatives and friends;

 In determining the amount of income that may be attributed or imputed,

 the court shall consider the specific circumstances of the parent, to

 the extent known, including such factors as the parent's assets, residence, employment and earning history, job skills, educational attain ment, literacy, age, health, criminal record and other employment barriers, record of seeking work, the local job market, the availability of  employers willing to hire the parent, prevailing earnings level in the  local community, and other relevant background factors such as the age,

 number, needs, and care of the children covered by the child support

 order. Attribution or imputation of income shall be accompanied by

 specific written findings identifying the basis or bases for such determination utilizing factors required or permitted to be considered pursuant to this clause.

 

Family Court Act 413 (1) (b) (5) (v) was amended by Laws of 2024, Chapter 357, effective September 27, 2024, to read as follows:

 

(v) an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support; provided that incarceration shall not be considered voluntary unemployment;

 

Family Court Act 413 (1)(k) was amended by Laws of 2024, Chapter 357, effective September 27, 2024, to read as follows:

 

(k) When a party has defaulted and/or the court is otherwise presented

with insufficient evidence to determine gross income,

the support obligation shall be based on

available information about the specific circumstances of the parent, in

accordance with clause (iv) of subparagraph five of paragraph (b) of

this subdivision. Such order may be retroactively modified upward, with-

out a showing of change in circumstances.

 

Family Court Act 451 (3)(a) was amended by Laws of 2024, Chapter 357, effective September 27, 2024, to read as follows:

 

(a) The court may modify an order of child support, including an order

incorporating without merging an agreement or stipulation of the

parties, upon a showing of a substantial change in circumstances.

Incarceration shall not be considered voluntary unemployment and shall

not be a bar to finding a substantial change in circumstances.

 

 

22 NYCRR 202.5 (e) of the Uniform Rules for the Supreme Court and the County Court, was amended effective December 2, 2024, to remove “or a proceeding pursuant to article 81 of the mental hygiene law” from the first sentence of subdivision (1)  and to add subdivision (e)(5), to read as follows:

 

(e) Omission or Redaction of Confidential Personal Information.

(1) Except in a matrimonial action, or a proceeding in surrogate's court, or as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, the parties shall omit or redact confidential personal information in papers submitted to the court for filing. For purposes of this rule, confidential personal information (“CPI”) means:

i. the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof;

ii. the date of an individual's birth, except the year thereof;

iii. the full name of an individual known to be a minor, except the minor's initials;

iv. a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number, except the last four digits or letters thereof; and

v. any of the documents or testimony in a matrimonial action protected by Domestic Relations Law section 235 or evidence sealed by the court in such an action which are attached as exhibits or referenced in the papers filed in any other civil action. For purposes of this rule, a matrimonial action shall mean: an action to annul a marriage or declare the nullity of a void marriage, an action or agreement for a separation, an action for a divorce, or an action or proceeding for custody, visitation, writ of habeus corpus, child support, maintenance or paternity.

(2) The court sua sponte or on motion by any person may order a party to remove CPI from papers or to resubmit a paper with such information redacted; order the clerk to seal the papers or a portion thereof containing CPI in accordance with the requirement of 22NYCRR § 216.1 that any sealing be no broader than necessary to protect the CPI; for good cause permit the inclusion of CPI in papers; order a party to file an unredacted copy under seal for in camera review; or determine that information in a particular action is not confidential. The court shall consider the pro se status of any party in granting relief pursuant to this provision.

(3) Where a person submitting a paper to a court for filing believes in good faith that the inclusion of the full confidential personal information described in subparagraphs (i) to (iv) of paragraph (1) of this subdivision is material and necessary to the adjudication of the action or proceeding before the court, he or she may apply to the court for leave to serve and file together with a paper in which such information has been set forth in abbreviated form a confidential affidavit or affirmation setting forth the same information in unabbreviated form, appropriately referenced to the page or pages of the paper at which the abbreviated form appears.

(4) The redaction requirement does not apply to the last four digits of the relevant account numbers, if any, in an action arising out of a consumer credit transaction, as defined in subdivision (f) of section one hundred five of the civil practice law and rules. In the event the defendant appears in such an action and denies responsibility for the identified account, the plaintiff may without leave of court amend his or her pleading to add full account or CPI by (i) submitting such amended paper to the court on written notice to defendant for in camera review or (ii) filing such full account or other CPI under seal in accordance with rules promulgated by the chief administrator of the courts.

(5) Whenever an application is submitted to a court seeking a change of name pursuant to Civil Rights Law Article 6, change of sex designation pursuant to Civil Rights Law Article 6-a, or both forms of relief in a combined application, then:

i. the application shall be immediately deemed sealed upon filing;

ii. the clerk of the court shall take all reasonable steps necessary to seal and safeguard the applicant's current name, proposed new name, current sex designation, proposed new sex designation, residential and business addresses, telephone numbers, and any other information contained in any pleadings or papers submitted to the court in connection with the application to prevent inadvertent or unauthorized use or disclosure while the matter is pending, including, but not limited, ensuring that such an application proceeds with an anonymous caption, until a determination or further order is issued by the Court;

iii. where such application is sealed, the clerk of the court shall not allow any person, other than the party or the attorney or counsel for the party, to access the application, except by order of the Court; and
iv. prior to the entry of a final determination or order on such an application, the Court must decide whether any legal basis is present so as to support maintaining the sealing imposed in accordance with this rule, and, where an application and/or any document submitted in support of it will not remain sealed, the Court should order the applicant to submit a complete copy of the application with all confidential personal information redacted and/or removed in accordance with Rule 202.5(e) if the applicant has not done so before any unsealing order takes effect. (2024 AO/286/24, NY Order 24-0022)

 

 

Appellate Division, First Department

 

 

Failure to include the trial transcript in the record on appeal, a necessary element of an appellate record, required dismissal of the appeal.

In Lewis v Thomas, --- N.Y.S.3d ----, 2024 WL 4845127 (Mem), 2024 N.Y. Slip Op. 05832 (1^st Dept., 2024) the Appellate Division held that the defendant’s failure to include the trial transcript in the record on appeal, a necessary element of an appellate record (see CPLR 5526), required dismissal of the appeal. The lack of a trial transcript rendered meaningful appellate review of the matter impossible.

 

Editors note: CPLR 5525(b) provides that no transcript is necessary where the appeal is from a judgment entered on a referee’s report or a decision of the court made after a non-jury trial if the appellant relies only upon exceptions to rulings on questions of law made after the case is finally submitted.

 

 

Family Court properly dismissed the petition for an extension of an order of protection where petitioner failed to make a showing of good cause under FCA § 842. She did not show that an extension was necessary to prevent a recurrence of domestic violence, as she did not testify about incidents that would support specific claims of continued violence against her

 

In Matter of E.Y.A.-G., v. S.B., --- N.Y.S.3d ----, 2024 WL 4775336 (Mem), 2024 N.Y. Slip Op. 05632 (1^st Dept.,2024) the Appellate Division affirmed an order of the Family Court Act insofar as it dismissed the petitions for violation of an order of protection dated February 25, 2019 and for an order of protection. It observed that Family Court properly dismissed the violation petition because petitioner failed to make a showing of good cause under Family Court Act § 842 to extend the prior February 25, 2019 order of protection. At the inquest, petitioner did not show that an extension was necessary to prevent a recurrence of domestic violence, as she did not testify about incidents that would support specific claims of continued violence against her, nor did she testify that respondent violated any of the prior orders of protection (see Matter of Ironelys A. v. Jose A., 140 A.D.3d 473, 474, 31 N.Y.S.3d 878 [1st Dept. 2016]). Rather, she testified that respondent had not telephoned her and she had no idea how to contact him until his counsel responded to the appeal she filed regarding the dismissal of the Washington State divorce proceeding.

 

 

Appellate Division, Second Department

 

 

The best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven. Secondary evidence may be admitted upon findings that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith

 

In Deutsch v Deutsch, --- N.Y.S.3d ----, 2024 WL 4830380, 2024 N.Y. Slip Op. 05786 (2d Dept.,2024) the parties were married on September 10, 1998. In December 2018, the plaintiff commenced the action for a divorce and moved to enforce a postnuptial agreement she alleged she and the defendant entered into in August 2000. The plaintiff attested that the defendant stole and destroyed the original postnuptial agreement, and she submitted a purported copy of the postnuptial agreement, which was unsigned and undated. The defendant contended that he did not steal or destroy the original postnuptial agreement and that the purported copy of the postnuptial agreement was not an accurate portrayal of the original. Supreme Court denied the motion. The Appellate Division affirmed. It held that the best evidence rule requires the production of an original writing where its contents are in dispute and are sought to be proven (Stathis v. Estate of Karas, 130 A.D.3d 1008, 1009, 14 N.Y.S.3d 446; see Mutlu v. Mutlu, 177 A.D.3d 979, 980, 115 N.Y.S.3d 339). Under an exception to the rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith (Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 644). The proponent of the secondary evidence has the heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original. As a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original before ruling on its admissibility. Even though the plaintiff sufficiently explained the unavailability of the original postnuptial agreement, she failed to meet her heavy burden of establishing that the proffered copy was a reliable and accurate portrayal of the original. Although the plaintiff’s former counsel attested that he retained a final, unsigned digital copy of the postnuptial agreement, which was purportedly identical to the original postnuptial agreement signed by the parties, the digital copy contained grammatical errors and different fonts throughout the document. Since the defendant contended that the copy submitted by the plaintiff was not an accurate portrayal of the original, the plaintiff failed to establish her heavy burden of showing that the proffered copy was reliable and accurate.

 

Petition for order of protection dismissed where peititoner failed to establish, prima facie, that the respondent committed acts constituting a family offense based on allegations actually charged in the petition

 

In Boutin v Boutin, ---.Y.S.3d ----, 2024 WL 4758550, 2024 N.Y. Slip Op. 05590

2024 WL 4758550 (2d Dept., 2024) the Appellate Division affirmed an order of the Family Court which granted  respondent’s motion to dismiss the petition against her  husband for failure to establish a prima facie case. It held that in determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom. The question of credibility is irrelevant, and should not be considered. However, the petitioner’s case may not be based upon allegations not charged in the petition (Matter of Czop v. Czop, 21 A.D.3d 958, 959, 801 N.Y.S.2d 63). Petitioner failed to establish, prima facie, that the respondent committed acts constituting a family offense based on allegations actually charged in the petition. Accordingly, the Family Court did not err in granting the respondent’s motion to dismiss.

Appellate Division, Fourth Department

 

 

The unilateral removal of the child from the jurisdiction is a factor for the court’s consideration on a petition for relocation, an award of custody must be based on the best interests of the child and not a desire to punish the recalcitrant parent

 

In Matter of Rodriguez v Young,--- N.Y.S.3d ----, 2024 WL 4798378, 2024 N.Y. Slip Op. 05705 (4^th Dept.., 2024) the Appellate Division affirmed an order which  granted the mother permission to relocate with the child to New York City. It found that the mother established at the hearing that she has been the primary caregiver of the child and that the father’s visitation with the child was inconsistent. Although the unilateral removal of the child from the jurisdiction is a factor for the court’s consideration, an award of custody must be based on the best interests of the child and not a desire to punish the recalcitrant parent. The mother testified that she initially planned a temporary move to New York City to care for her mother, who was undergoing cancer treatment. While in New York City, the mother, who had lost her job, apartment, and car due to the COVID-19 pandemic, was able to obtain suitable housing and full-time, salaried employment. The father had no accustomed close involvement in the child’s everyday life” and thus it concluded that the need to give appropriate weight to the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements did not take precedence over the need to give appropriate weight to the necessity for the relocation.

 

 

Supreme Court

 

 

Supreme Court holds that as to surrogacy agreements, strict compliance with Part 4 of Article 5-C is not required. The Court may enforce surrogacy agreements that substantially comply with the requirements (FCA §§ 581-203[e] and 581-407).

 

In  Matter of Parentage of Anonymous,  --- N.Y.S.3d ----, 2024 WL 4821566, 2024 N.Y. Slip Op. 24290 (Sup Ct, 2024) the petitioners, the intended parents of the subject child, entered into an egg-donor agreement with the egg donor, and using the genetic material from one petitioner and egg from the donor, created an embryo. Thereafter, the intended parents executed a Surrogacy Agreement. At the time the Surrogacy Agreement was executed, the intended parents had resided in New York State for at least six months, and the surrogate resided in Ontario, Canada. The surrogate became pregnant with the parties’ embryo and, the surrogate gave birth to the subject child, V., in Ontario, Canada. The statement of live birth issued by Ontario lists the intended parents, petitioners J.Z. and B.S., as the parents of the subject child, V. Petitioners have resided in New York since, at least, February of 2017 and currently resided in New York County. The Court granted their motion pursuant to the Parent Security Act, Article 5-C of the Family Court Act, for an order and judgment of parentage declaring them to be the legal parents of V. Notably, the Egg-Donor and Surrogacy Agreements pre-dated the Parent Security Act.  The Court observed that Family Court Act (”FCA”) § 581-701 instructs that the legislation underpinning parentage matters, such as this, is remedial and is “to be construed liberally to secure the beneficial interests and purposes thereof for the best interests of the child”. As to surrogacy agreements, strict compliance with Part 4 of Article 5-C is not required, and the Court may enforce surrogacy agreements that substantially comply with the requirements (FCA §§ 581-203[e] and 581-407). While FCA § 581-206 contemplates a parentage petition being brought prior to the child’s birth or within 180 days of the birth, it declares that continuing jurisdiction should be subject to DRL § 76 (entitled “Initial Child Custody Jurisdiction”); however, DRL § 76 does not address continuing jurisdiction, instead DRL § 76-a does. Furthermore, FCA § 581-206 provides that after the child reaches 180 days old, the Court’s continuing jurisdiction lapses, in direct contravention of the UCCJEA. The Court observed that the Practice Commentary to FCA § 581-206 generously describes this section as “problematic,” and advises practitioners to “simply disregard” the 180-day limitation and abide the provisions of the UCCJEA which have long established jurisdiction over children until they reach 19 years old (citing Professor Merril Sobie, Practice Commentaries McKinney’s Consolidated Laws of NY, Family Court Act § 581-206). It noted that although FCA § 581-206 is a relatively new statute, courts have begun disregarding its jurisdictional limitations, in favor of the UCCJEA (see e.g. Matter of Sabastian N. (Amy Z. — Lisa N.), 83 Misc 3d 514 [Fam. Ct., Erie County 2024]]). The Court found that although the subject child was born in 2018, FCA § 581-206 does not bar the proceeding, and jurisdiction under the UCCJEA was proper. The surrogacy agreement substantially complied with the Parent Security Act, even though it predated the act. The surrogate was over the age of 21, had not provided the egg for conception, completed a medical evaluation, gave informed consent, and was represented by independent legal counsel. While the surrogate was not a U.S. citizen, the petitioners were both residents of New York. Furthermore, the totality of the surrogacy agreement reflected that the surrogate had the right to make all health and welfare decisions regarding the pregnancy, utilize medical personnel of her choosing in consultation with the petitioners, and was provided with comprehensive health and life insurance policies. Thus, the absence of an acknowledgment of receipt of the “Surrogate Bills of Rights” in the surrogacy agreement was not fatal. The Court found the parties’ surrogacy agreement substantially complied with the FCA and the proposed order of parentage is properly issued.

 

 

Supreme Court holds that attorney retained as consultant to pro se litigant must file of written engagement agreements and statement of client’s rights with a Notice of Appearance in circumstances where a domestic relations matter action has been commenced.

 

In P.M., v. J.M., 84 Misc.3d 262, 219 N.Y.S.3d 541 (Sup. Ct., 2024) the plaintiff, identified himself to the court as a self-represented litigant having entered into a “consulting” agreement with his former Attorney #2. The Supreme Court observed that CPLR § 321(d) permits limited scope appearances and 22 NYCRR Part § 1400 contains the rules for attorney in domestic relations matters.  It observed that one author noted that as used in that rule “We believe that the words ‘preliminary to’ are intended to make the rule applicable to any consultation regarding such claim, action or proceeding which results in the commencement of such claim, action or proceeding which results in the commencement of such a claim, action or proceeding within a reasonable time after the consultation.” (Citing Law & The Family NY Forms § 4:1 [2d]). The Court pointed out that the rules require the execution of written engagement agreements and execution statement of client’s rights and responsibilities, followed by filing them with the Court with a Notice of Appearance in circumstances where a domestic relations matter action or proceeding has been commenced. To the extent that attorneys take the position that by acting in a “consulting” capacity they may avoid compliance with the Court Rules and law, the Court rejected such a position. Accepting such a position would permit attorneys in domestic relations matters to circumvent the oversight intended by these Court Rules by entering into such “consulting” agreements in contravention of the public policy seeking to protect clients of attorneys in domestic relations matters which prompted the adoption of the aforementioned Court Rules.

 

 

November 16,2024

 

 

Appellate Division, First Department

 

 

To determine whether a nonfinal order ‘necessarily affects’ the final judgment the question is whether reversal would inescapably have led to a vacatur of the judgment, or whether the nonfinal order necessarily removed a  legal issue from the case’ so that there was no further opportunity during the litigation to raise the question decided by the prior non-final order

In Adebanjo v Johnson, --- N.Y.S.3d ----, 2024 WL 4628228 (Mem), 2024 N.Y. Slip Op. 05395 (1^st Dept.,2024) the Appellate Division held that the defendant’s arguments regarding the court’s denying his first motion for leave to replead, and denying his motion to strike the plaintiff’s statement of net worth, for pendente lite support, counsel and expert fees, and a writ of replevin and order of seizure were precluded by his failure to perfect his appeal from the orders and the dismissal of his appeal therefrom (citing Bray v. Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803, 342 N.E.2d 575 [1976]; Fellner v. Aeropostale, Inc., 150 A.D.3d 598, 599, 52 N.Y.S.3d 628 [1st Dept. 2017]). It declined to exercise its discretion to review these matters. Defendant’s arguments regarding the trial court’s August 18, 2022, discovery order were likewise precluded as the appeal from that order was previously dismissed by the Court (see Adebanjo v. Johnson, 2022 N.Y. Slip Op. 74294[U] [1st Dept. 2022]).

 

The Appellate Division further held that the entry of the judgment of divorce renders the remainder of the defendant’s orders nonappealable. Pursuant to CPLR 5501(a)(1), an appeal from a final judgment brings up for review any “non-final judgment or order which necessarily affects the final judgment ... and which, if reversed, would entitle the respondent to prevail in whole or in part on that appeal” (see also Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] [“any right of direct appeal from the ... order terminated with the entry of the ... judgment .... Appellate review of that intermediate order was thereafter available only on appeal from the final judgment on the ground asserted, namely that such order necessarily affected such judgment”]). “[T]o determine whether a nonfinal order ‘necessarily affects’ the final judgment ... [the question is] whether ‘reversal would inescapably have led to a vacatur of the judgment,’ or ‘whether the nonfinal order ‘necessarily removed [a] legal issue from the case’ so that ‘there was no further opportunity during the litigation to raise the question decided by the prior non-final order’ ” (Bonczar v. American Multi–Cinema, Inc., 38 N.Y.3d 1023, 1025–1026, 168 N.Y.S.3d 711, 188 N.E.3d 1000 [2012]). The trial court’s orders granting and affirming confidentiality of plaintiff’s address, declining to anonymize the case caption, declining to settle the transcripts from conferences, and declining to afford defendant leave to replead a second time, given the failure to comply with the CPLR 3016 specificity requirements related to his counterclaims, did not “necessarily affect” the final judgment, which in this case was the grant of a no-fault divorce to plaintiff pursuant to Domestic Relations Law § 170(7).

 

The Appellate Division also held that the Court properly held an inquest on the plaintiff’s no-fault divorce. As Domestic Relations Law § 170(7) requires that one party state under oath that the marriage “has broken down irretrievably for a period of at least six months,” an inquest was necessary (see Hoffer–Adou v. Adou, 121 A.D.3d 618, 619, 997 N.Y.S.2d 7 [1st Dept. 2014]).

 

 

Where abandonment cause of action was not pleaded in the Termination petition, the Family Court has the authority to conform the pleadings to the proof, sua sponte, where the evidence established a cause of action for abandonment.

 

In Matter of Pandora S.D., --- N.Y.S.3d ----, 2024 WL 4508080, 2024 N.Y. Slip Op. 05136 (1^st Dept., 2024) the Appellate Division affirmed an order which, upon findings of permanent neglect and abandonment by the respondents' mother and father, terminated their parental rights and transferred custody of the child to the petitioner agency and the Administration for Children’s Services. It held, among other things,  that the finding of abandonment was supported by clear and convincing evidence (see Social Services Law § 384–b[4][b]; [5][a]]). Contrary to the father’s contention, although the abandonment cause of action was not pleaded in the petition, as the evidence established a cause of action for abandonment, the Family Court has the authority to conform the pleadings to the proof, sua sponte (see Matter of Melinda B. v. Jonathan L. P., 187 A.D.3d 631, 631–632, 131 N.Y.S.3d 148 [1st Dept. 2020]).

 

Appellate Division may take notice of new facts and allegations in a custody case to the extent they indicate that the record before it is no longer sufficient for determining whether the custody award is still in the child’s best interests, and may remand where the record is no longer sufficient.

 

In Matter of Muhamede J.D., v. Shainie A.M.,.--- N.Y.S.3d ----, 2024 WL 4701634, 2024 N.Y. Slip Op. 05483 (1^st Dept.,2024) the Supreme Court determined that the mother could have sole residential custody and relocate to Vermont with the child, based in large part on the mother’s demonstrated commitment to the child’s education and her willingness to put his needs above her own. The Appellate Division observed that since the issuance of the Family Court’s custody order, there were new developments, which the attorney for the child has brought to the Court’s attention. While the child has remained with the father in New York City the mother failed to consistently visit or maintain contact with the child since September 2023. According to the attorney for the child, the mother stopped visiting the child in February 2024. Any change in custodial arrangements, particularly for a child with a disability, requires preparation. The mother’s apparent failure to communicate with the child raised questions concerning the adequacy of her preparation, and her continued commitment to this change in custody. It pointed out that it may take notice of new facts and allegations to the extent they indicate that the record before it was no longer sufficient for determining whether an award of residential custody to the mother and relocation to Vermont was still in the child’s best interests (see Matter of Michael B., 80 N.Y.2d 299, 318, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992]). In light of the changed circumstances brought to this Court’s attention, the record was no longer sufficient to review whether the Family Court’s determination regarding custody, parental access, and relocation was in the child’s best interests. For that reason, it remanded for a new hearing to consider new facts and make a new determination as to custody and parental access.

 

 

Appellate Division, Second Department

 

A nonparent may have standing to seek visitation if extraordinary circumstances warrant it.  Petitioner did not have standing as he was not the biological father of the child, did not establish that there was a preconception agreement between himself and the mother nor did he demonstrate that there were “extraordinary circumstances”        

 

In Matter of Michael A v.  Chanice T. --- N.Y.S.3d ----, 2024 WL 4684337 (Mem), 2024 N.Y. Slip Op. 05438  (2d Dept.,2024) in  April 2017, the petitioner, the romantic partner of the mother of the child, filed a petition for visitation with the child. In April 2021, the child moved to dismiss the petition for lack of standing. Family Court granted the motion. The Appellate Division observed that in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 14, 39 N.Y.S.3d 89, 61 N.E.3d 488, the Court of Appeals held that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70. A nonparent may have standing in the event extraordinary circumstances warrant it. Such extraordinary circumstances include surrender, abandonment, persisting neglect, or unfitness’ by the parents. Absent proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered.  Moreover, a hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers. The petitioner was not the biological father of the child and did not establish that there was a preconception agreement between himself and the mother nor did the petitioner demonstrate that there were “extraordinary circumstances” such that he would have standing to seek visitation with the child. Accordingly, the Family Court properly granted the motion to dismiss the petition.

 

 

A party may forfeit the fundamental right to counsel in a termination proceeding by engaging in egregious conduct, but only as a matter of extreme, last resort. The record failed to clearly reflect that the mother engaged in the sort of egregious conduct that would justify a finding that she forfeited her right to assigned counsel.

 

In Matter of Sa’Nai F. B. M. A. --- N.Y.S.3d ----, 2024 WL 4684322, 2024 N.Y. Slip Op. 05440 (2d Dept.,2024) the petitioner commenced the proceeding under Social Services Law § 384–b to terminate the mother’s parental rights to the child on the ground that she had permanently neglected the child. In April and May 2017, the Family Court granted the mother’s applications to discharge two attorneys she had privately retained to represent her. In June 2017, the court assigned counsel to represent the mother. In April 2019, during the fact-finding hearing on the petition to terminate the mother’s parental rights, the Family Court granted a second application by the mother’s assigned counsel to be relieved and determined that the mother had forfeited her right to be assigned new counsel. The court’s determination was based upon, among other things, “suspicions” that the mother had been “involved” in a recent security compromise of the assigned counsel’s computer. The court also cited as a basis for its determination the fact that, throughout the child protective proceeding and this proceeding, the mother had a total of three attorneys assigned to represent her or to act as her legal advisor. In November 2019, the Family Court directed, over the mother’s objection, that the mother was required to proceed pro se if she was unable to retain counsel. On March 4, 2020, the mother appeared pro se and was unprepared to call the remaining witnesses she intended to have testify on her behalf, and the court found the mother’s direct case to be completed, over the mother’s objection. After the dispositional hearing, the Family Court found that the mother permanently neglected the child and terminated the mother’s parental rights. The Appellate Division reversed and remitted for a determination as to whether the mother currently qualified for assigned counsel and a new fact-finding hearing. It held that a respondent in a proceeding under Social Services Law § 384–b has the right to the assistance of counsel. A party may forfeit the fundamental right to counsel by engaging in egregious conduct, but only as a matter of ‘extreme, last resort (People v. Shanks, 37 N.Y.3d 244, 253, 154 N.Y.S.3d 646). The record failed to clearly reflect that the mother engaged in the sort of egregious conduct that would justify a finding that she forfeited her right to assigned counsel. The deprivation of the mother’s right to counsel required reversal without regard to the merits of her position after the mother had been assigned counsel or permitted an opportunity to retain counsel.

 

 

Appellate Division, Third Department

 

 

Appellate Division remitted the matter to Family Court for further proceedings, without deciding the appeal, where It had been advised of numerous violation and modification petitions, containing serious allegations, filed by the parties since entry of the order before it.

 

In Matter of Joanna PP., v. Ohad PP., 230 A.D.3d 1445 (3d Dept, 2024) the Appellate Division reversed an order of the Family Court which, among other things, granted the petitioner’s application to modify a prior order of custody. The Court pointed out that it had “ been advised of numerous violation and modification petitions, containing serious allegations, filed by the parties since entry of the order before us.”  It was apparent from the subsequent filings and orders that the family dynamic had substantially deteriorated and that the conflict had escalated; the most recent order in effect, entered August 5, 2024, temporarily prohibited any contact between the father and the children. In light of the evolving situation, it remitted the matter for further proceedings and updated fact-finding (citing, inter alia,  Matter of Michael B., 80 N.Y.2d 299, 318, 590 N.Y.S.2d 60, 604 N.E.2d 122 [1992]).

 

 

 

November 1, 2024

 

Court of Appeals

 

 

Court of Appeals holds that the use of marital funds to “buy back” years of service which will enhance pension and are separate property, creates marital property subject to Equitable Distribution

 

In Szypula v Szypula, --- N.E.3d ----, 2024 WL 4535800 (2024) John Szypula joined the Navy in 1987. He and Meredith Szypula were married nine years later. Two years later, in 1998, Mr. Szypula left the Navy. In general, members of the armed services become entitled to retirement pay only after they complete twenty years of service. When Mr. Szypula left the Navy, he was not entitled to military retirement benefits. From 1998 to 2012, he worked in the private sector. In 2012, he joined the Foreign Service and enrolled in the Foreign Service Pension System (FSPS). Veterans who join the Foreign Service, like Mr. Szypula, may add their years of military service to their FSPS pensions by making additional contributions for the years they served in the military. Mr. and Ms. Szypula took advantage of this benefit. From 2012 to 2018, a portion of Mr. Szypula’s earnings was withheld to enhance his Foreign Service pension by “buying back” his eleven years of Navy service, at a total cost of $9,158.00. As a result of those payments and his eleven years of Navy service, Mr. Szypula’s FSPS pension will vest sooner and be worth more. In 2019, the Szypulas filed for divorce. The parties could not resolve whether the portion of the FSPS pension attributable to Mr. Szypula’s nine years of pre-marriage Navy service was separate or marital property. Supreme Court held that the value of the FSPS pension related to Mr. Szypula’s nine years of premarital Navy service was marital property subject to equitable distribution because the couple “used marital funds to buy back” the Navy credits during the course of their marriage. The Appellate Division reversed, holding that the Navy pension credits were Mr. Szypula’s separate property because they were the product of his “sole labors” and were “not due in any way to [Ms. Szypula’s] indirect contributions” (211 A.D.3d 156, 159, 178 N.Y.S.3d 290 [3d Dept 2022]). The Appellate Division held, however, that the marital funds used to purchase the credits were subject to equitable distribution and remitted to the Supreme Court to make the appropriate calculations. On remittal, Supreme Court adjusted the award.

 

The Court of Appeals reversed. It held that the portion of the Foreign Service pension related to credit for that service was entirely marital property because marital funds were used to transform the credits into pension rights. It observed that under Domestic Relations Law § 236, marital property includes “all property acquired by either or both spouses during the marriage” except separate property  § 236[B][1][c]). As relevant here, separate property includes “property acquired before marriage ...” ( § 236[B][1][d][1]) and “property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse” (§ 236[B][1][d][3]). It noted that in Majauskas v. Majauskas, it held that vested pension rights “are marital property to the extent that they were acquired between the date of the marriage and the commencement of a matrimonial action”.There, it reasoned that a pension right is marital property because it is received in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living, in other words, a pension “is a form of deferred compensation”. It has consistently held that pension rights attributable to work during marriage are marital property. An employee’s pension rights generally accrue incrementally over time. The accrual of those rights is tied to the employee’s service but may also require a financial contribution from the employee. Usually, where that is the case, the employee works and pays into the plan at the same time.

 

The Court pointed out that the pension rights at issue in this case differed from the benefits addressed in prior caselaw. Here, the parties made a financial contribution during the marriage to transform premarital service into pension rights. When Mr. Szypula left the Navy, the nine years of pension credits he accrued before marriage were his separate property, but they did not entitle him to any pension benefits. He had, instead, an opportunity to make a payment to acquire up to eleven years of pension rights, provided that he later took a job whose pension plan allowed for the credits to be used to augment its value. The parties used marital funds to convert those eleven years of Navy service, including the nine years he worked before marriage, into additional value to Mr. Szypula’s Foreign Service pension. The pension rights at issue in this case were therefore the product of both his pre-marriage service and the Szypulas’ contribution of marital assets. Separate property that is commingled with marital property presumptively becomes marital property. Although Mr. Szypula’s pre-marriage military service may have had some appreciable though contingent value as separate property, by combining it with marital funds the Szypulas transformed the pension credits from separate property into marital property. Mr. Szypula acquired the eleven years of pension rights only by entering qualifying federal employment and paying to incorporate his Navy pension credits into his new pension. Those credits were thus distinct from unvested pension credits that vest so long as an employee continues to work for the same employer. The use of marital funds to “buy back” Mr. Szypula’s Naval service created the pension entitlement he had today, at least in part. The pension rights at issue here were therefore marital property.

 

The Court of Appeals pointed out that although courts may award a spouse credit for the value of separate property used to create a marital asset, the entirety of the asset is deemed marital. In situations where a marital asset was acquired in part with separate property funds, courts have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset. The burden is on the spouse claiming recapture of a separate property contribution to prove that contribution’s value. The Foreign Service pension rights attributable to Mr. Szypula’s nine years of premarital service were marital property in their entirety. Here, the record was not sufficient to determine the value of Mr. Szypula’s inchoate Navy pension credits at the time he contributed them to create a marital asset. The Court held that on remittal, Mr. Szypula may claim the value of that separate property. The case was remitted to Supreme Court, for further proceedings in accordance with the opinion.

 

 

Appellate Division, First Department

 

 

Conveyance at issue ($625,000 retainer paid to the defendant law firm) was not for fair consideration, as future legal services constituted the consideration for the, and a promise of future services is not fair consideration for a present conveyance.

 

In Patterson Belknap Webb & Tyler LLP v HoganWillig PLLC, 2024 WL 4557835 (1^st Dept, 2024) in  2008 and 2009, the plaintiff rendered legal services to nonparty Barbara Stewart. Stewart did not pay for the services, and the plaintiff sued her for nonpayment. In 2013, the plaintiff obtained a judgment against Stewart for the unpaid fees in the amount of just over $2 million. Around this time, Stewart was going through a divorce in which she was awarded, among other things, a Bermuda estate, as well as jewelry worth $8.5 million. After judgment was entered, the plaintiff served Stewart with a restraining notice and also took discovery regarding her assets. At her deposition, Stewart testified that her former daughter-in-law had taken the jewelry and certain other assets that now belonged to others. Thus, she asserted, the only asset available to the plaintiff was the Bermuda estate. A few months after the deposition, Stewart had her then-counsel arrange the sale of a 24–carat diamond ring for her, which yielded millions of dollars. Stewart later entered into a retainer agreement with the defendant, a law firm; the agreement provided that the defendant would receive a retainer of $625,000 against future fees. In December 2017, the defendant received the $625,000 retainer, which exhausted the funds from the ring sale. In this action, Plaintiff sought the proceeds from the sale of the diamond ring. On this motion to dismiss, the Appellate Division held, inter alia, that the Plaintiff adequately pleaded that the conveyance at issue was not for fair consideration, as future legal services constituted the consideration for the $625,000 retainer paid to defendant, and a promise of future services is not fair consideration for a present conveyance (see Kleinfeld v. Pedersen, 116 A.D.2d 970, 971, 498 N.Y.S.2d 596 [4th Dept. 1986]). The defendant’s billing ledgers did not conclusively refute the plaintiff’s allegations. The Court also declined to create a special exception for the legal profession.                       

 

 

Appellate Division, Second Department

 

 

Commitment to Jail for non-support reversed where father deprived of effective assistance of counsel. Where the father argued he was unable to work due to a medical condition the failure of his attorney to obtain relevant medical and financial information constituted a failure to meaningfully represent the father. 

 

In Matter of McCloskey v. Unger, --- N.Y.S.3d ----, 2024 WL 4549143, 2024 N.Y. Slip Op. 05210 (2d Dept., 2024) the Appellate Division reversed an order which confirmed the finding of willfulness against the father and directed that he be committed to the custody of the Suffolk County Jail for six months unless he paid the purge amount of $39,678.67. It agreed with the father that he was deprived of the effective assistance of counsel at the hearing on the mother’s petition alleging a willful violation of the child support order. “[I]n support proceedings such as this one in which a party faces the potential of imprisonment and has a statutory right to counsel, ... the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard” (Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 944, 53 N.Y.S.3d 130). Here, the father’s position at the hearing was that, due to his neuropathy, he was unable to work and had to rely on public assistance for income. Despite having been advised that the father was required to provide a financial disclosure affidavit, tax forms, and certified medical and income records, the father’s counsel failed to procure certified copies of the father’s medical records or records establishing his entitlement to and receipt of public assistance. The father’s counsel failed to call any witnesses to testify regarding the father’s neuropathy, to subpoena the father’s treating physician, or to obtain a medical affidavit from the father’s physician. The Support Magistrate made specific reference to the lack of any credible medical testimony, an incomplete financial disclosure affidavit, and the lack of tax returns in finding that the father failed to refute the mother’s prima facie showing of a willful violation of the child support order. The failure of the father’s counsel to obtain relevant medical and financial information constituted a failure to meaningfully represent the father, and thus, the father was entitled to a new hearing on the mother’s petition. The matter was remitted, for a new hearing on the mother’s petition and a new determination thereafter.

 

 

Appellate Division, Third Department

Where, as here, a New York court has continuing jurisdiction over a custody matter, it may decline to exercise jurisdiction if New York is an inconvenient forum and another state is a more appropriate forum. A court must consider eight statutory factors in rendering that determination. The determination must involve consideration of all relevant factors, including those set forth in the statute. (DRL § 76–f [2][a]).

 

In Matter of Mark AA., v. Susan, --- N.Y.S.3d ----, 2024 WL 4507665, 2024 N.Y. Slip Op. 05173 (3d Dept.,2024) a custody modification proceeding the Appellate Division observed that where as here, a New York court has continuing jurisdiction over a custody matter, it may decline to exercise such jurisdiction if it determines that New York is an inconvenient forum and that another state is a more appropriate forum” (see Domestic Relations Law § 76–a). A court is obliged to consider eight statutory factors in rendering that determination, and those statutory factors include (1) ‘whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child,’ (2) the length of time the children have resided in another state, (3) the distance between the two states in question, (4) the relative financial circumstances of the parties, (5) any agreement among the parties regarding jurisdiction, (6) the nature and location of relevant evidence, including testimony from the children, (7) the ability of each state to decide the issue expeditiously and the procedures necessary to present the relevant evidence, and (8) the familiarity of each court with the relevant facts and issues” (Domestic Relations Law § 76–f [2][a]). Notably, the “determination depends on the specific issues to be decided in the pending litigation, and must involve consideration of all relevant factors, including those set forth in the statute.  Here, although Family Court may have had the statutory factors in mind in considering whether to decline exercising jurisdiction over these custody matters, the record did not demonstrate what that consideration involved or show how the weighing of the relevant factors led to the court’s determination. Family Court did not explicitly refer to the statutory factors during its conference with the Massachusetts court. The parties were not invited to, and did not, offer any testimony regarding the relative convenience of the two forums. Family Court then ruled from the bench that Massachusetts was a more appropriate forum because of “the nature and location of the evidence required to resolve the pending litigation,” observing that the mother’s modification petition in the Massachusetts court related to the child’s mental health and would involve records and testimony from providers in that state. Family Court thereafter issued the appealed-from order, which did not offer any further detail about its reasoning and, instead, simply declined jurisdiction without any discussion of the relevant factors or how they resulted in Massachusetts being the superior forum. As neither party submitted information at the hearing and no testimony was taken, the limited record did not permit the Appellate Division to conduct an independent review of those factors and render a determination. It remitted so that Family Court may do so and, following further development of the record if needed, render a determination in compliance with the UCCJEA.

 

 

Supreme Court

 

 

Hague Convention Petition for the Return of the Child to his habitual residence in Italy was granted. Father failed to prove by a preponderance of the evidence the Grave Risk of Harm and Now Settled exceptions to return.

 

In Matter of Luisa JJ., v. Joseph II., Slip Copy, 2024 WL 4560307 (Table), 2024 N.Y. Slip Op. 51440(U) (Sup Ct.,, 2024), an Unreported Disposition, the Court indicated at the outset that facts and history of this case were more fully recited in the memorandum and order of the Appellate Division, Third Department, dated September 21, 2023 (see Matter of Luisa JJ. V Joseph II., 219 AD3d 1628 [3d Dept 2023]. The parties wee the separated parents of a son (born in 2013). Prior to their separation, the parties’ predominant place of residence was in New York State. When the parties separated in 2019, the mother took the child to live with her in her home country of Italy under an agreement whereby the child would initially reside primarily in Italy and visit with the father for periods of a couple months during summers and a few weeks around the holidays, but, starting July 1, 2022, would reside for six months of each year with each parent in that parent’s home country. Shortly after returning to Italy, however, the mother sought to modify the agreement in order to accommodate the child’s schooling, by, in essence, continuing the schedule that had been employed since she and the child moved to Italy. This prompted the father to commence a custody proceeding in this state in June 2020, which proceeding was ultimately dismissed upon appeal from an order of the court upon the  Court’s finding that Italy was the child’s home state (see Domestic Relations Law § 76 (1) (a); Joseph II. v Luisa JJ., 201 AD3d 43, 46-48 [3d Dept 2021]). Meanwhile, the mother had commenced her own custody proceeding in Italy in June 2020. The claims in that proceeding were ultimately compromised in a custody agreement that the parties filed with the Italian court in November 2022. The agreement was never finalized in the Italian court, however, due to the events that ensued shortly after its filing. On December 11, 2022 the child arrived in New York State for the father’s ordinary holiday parenting time. The father claims that, shortly after they began their trek from a New York City airport to the father’s home in Washington County, the child disclosed to him that, beginning sometime in September 2022, a minor in Italy—later determined to be the nephew of the mother’s boyfriend—had been touching the child’s intimate parts above and below his clothing while the two were sharing a bed during several weekend sleep overs at the boyfriend’s house. Based on this report, the father refused to return the child to Italy in January 2023 as called for under the operative custody agreement. The mother, therefore, commenced proceeding number one, claiming that the child was wrongfully retained in New York State in violation of the Hague Convention on the Civil Aspects of International Child Abduction. The father responded by asserting, as relevant here, two affirmative defenses,“there is a grave risk that [the child’s] return would expose [him] to physical or psychological harm or otherwise place [him] in an intolerable situation” and that “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [his] views” (Hague Convention art 13, 13 [b],). the child’s country of habitual residence but reversed the order, finding that it was error to reject the father’s defenses/exceptions without a hearing. The Court remitted the matter for a hearing on those exceptions. The Supreme Court granted the petition. It noted that as the Third Department observed, “[t]he Hague Convention’s ‘core premise [is] that the interests of children in matters relating to their custody are best served when custody decisions are made in the child’s country of habitual residence’ “ (Matter of Luisa JJ., 219 AD3d at 1631-1632, quoting Monasky v Taglieri, 589 US 68, 72 [2020]; see Abbott v Abbott, 560 US 1, 20 [2010]). As such, the Hague Convention compels the prompt return of a child to his or her country of habitual residence if he or she has been wrongfully removed or retained in another country (see Matter of Luisa JJ., 219 AD3d at 1632). The court found that  the father had not made the requisite showing that the child would be returned to a situation in which he is subjected to continued sexual abuse at the hands of the minor in Italy and would, thus, be returned to an intolerable situation there. It pointed out that under the mature child exception,” a court may order that a child not be returned to his country of habitual residence if “ ‘the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [the child’s] views’ “ (Matter of Luisa JJ., 219 AD3d at 1631, quoting Hague Convention art 13). The court found that the father failed to carry his burden to establish this exception by a preponderance of the evidence.

 

 

Court Rules

 

22 NYCRR 202.5 (e) of the Uniform Rules for the Supreme Court and the County Court is amended effective December 2, 2024

 

 

22 NYCRR 202.5 (e) of the Uniform Rules for the Supreme Court and the County Court is amended effective December 2, 2024, to read as follows (Matter in italics is new):

(e) Omission or Redaction of Confidential Personal Information.

(1) Except in a matrimonial action, or a proceeding in surrogate’s court, or as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, the parties shall omit or redact confidential personal information in papers submitted to the court for filing. For purposes of this rule, confidential personal information (“CPI”) means:

i. the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof;

ii. the date of an individual’s birth, except the year thereof;

iii. the full name of an individual known to be a minor, except the minor’s initials;

iv. a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number, except the last four digits or letters thereof; and

v. any of the documents or testimony in a matrimonial action protected by Domestic Relations Law section 235 or evidence sealed by the court in such an action which are attached as exhibits or referenced in the papers filed in any other civil action. For purposes of this rule, a matrimonial action shall mean: an action to annul a marriage or declare the nullity of a void marriage, an action or agreement for a separation, an action for a divorce, or an action or proceeding for custody, visitation, writ of habeus corpus, child support, maintenance or paternity.

(2) The court sua sponte or on motion by any person may order a party to remove CPI from papers or to resubmit a paper with such information redacted; order the clerk to seal the papers or a portion thereof containing CPI in accordance with the requirement of 22NYCRR § 216.1 that any sealing be no broader than necessary to protect the CPI; for good cause permit the inclusion of CPI in papers; order a party to file an unredacted copy under seal for in camera review; or determine that information in a particular action is not confidential. The court shall consider the pro se status of any party in granting relief pursuant to this provision.

(3) Where a person submitting a paper to a court for filing believes in good faith that the inclusion of the full confidential personal information described in subparagraphs (i) to (iv) of paragraph (1) of this subdivision is material and necessary to the adjudication of the action or proceeding before the court, he or she may apply to the court for leave to serve and file together with a paper in which such information has been set forth in abbreviated form a confidential affidavit or affirmation setting forth the same information in unabbreviated form, appropriately referenced to the page or pages of the paper at which the abbreviated form appears.

(4) The redaction requirement does not apply to the last four digits of the relevant account numbers, if any, in an action arising out of a consumer credit transaction, as defined in subdivision (f) of section one hundred five of the civil practice law and rules. In the event the defendant appears in such an action and denies responsibility for the identified account, the plaintiff may without leave of court amend his or her pleading to add full account or CPI by (i) submitting such amended paper to the court on written notice to defendant for in camera review or (ii) filing such full account or other CPI under seal in accordance with rules promulgated by the chief administrator of the courts.

(5) Whenever an application is submitted to a court seeking a change of name pursuant to Civil Rights Law Article 6, change of sex designation pursuant to Civil Rights Law Article 6-a, or both forms of relief in a combined application, then: i. the application shall be immediately deemed sealed upon filing; ii. the clerk of the court shall take all reasonable steps necessary to seal and safeguard the applicant’s current name, proposed new name, current sex designation, proposed new sex designation, residential and business addresses, telephone numbers, and any other information contained in any pleadings or papers submitted to the court in connection with the application to prevent inadvertent or unauthorized use or disclosure while the matter is pending, including, but not limited, ensuring that such an application proceeds with an anonymous caption, until a determination or further order is issued by the Court; iii. where such application is sealed, the clerk of the court shall not allow any person, other than the party or the attorney or counsel for the party, to access the application, except by order of the Court; and iv. prior to the entry of a final determination or order on such an application, the Court must decide whether any legal basis is present so as to support maintaining the sealing imposed in accordance with this rule, and, where an application and/or any document submitted in support of it will not remain sealed, the Court should order the applicant to submit a complete copy of the application with all confidential personal information redacted and/or removed in accordance with Rule 202.5(e) if the applicant has not done so before any unsealing order takes effect.

 

 

 

October 16, 2024

 

Appellate Division, First Department

 

 

Husband established “extreme hardship” warranting downward modification of maintenance where his job loss was involuntary, he made numerous unsuccessful attempts to seek comparable employment and lacked other assets to satisfy the ongoing maintenance obligation in the parties’ settlement agreement.

 

In Ullah v Ullah, --- N.Y.S.3d ----, 2024 WL 4486876 (1^st Dept.,2024) the Appellate Division affirmed an order which, inter alia, granted the husband’s cross-motion for downward modification of his maintenance obligation. It held that the Supreme Court properly found that the husband would suffer extreme hardship if he were held to the maintenance obligations imposed under the settlement agreement (Domestic Relations Law § 236[B][9][b]). The husband established that his job loss in 2020 was involuntary and that he had made numerous attempts to seek comparable employment, without success. According to the evidence presented at the hearing, he not only had minimal job prospects but lacked other assets to satisfy the ongoing maintenance obligation in the parties’ settlement agreement.

 

Children’s out-of-court statements, which described incidents of domestic violence and corporal punishment, were admissible in a custody proceeding because they were corroborated by each other’s in-camera testimony and the father’s testimony.

 

 In Matter of Jermaine N. v Tatiana T., --- N.Y.S.3d ----, 2024 WL 4486885, 2024 N.Y. Slip Op. 05060 (1^st Dept.,2024) the Appellate Division affirmed an order which awarded the parties joint legal custody of the children with primary physical custody to the father beginning and a liberal parenting access schedule for the mother. The record established that the father’s home environment was better suited for the children’s needs  The court found that the children had been exposed to instances of domestic violence and corporal punishment in the mother’s home and that the mother’s blanket denial that any of those events took place was incredible. The court providently exercised its discretion in finding that the children’s out-of-court statements, which described the same incidents of domestic violence and corporal punishment, were admissible in a custody proceeding because they were corroborated by each other’s in-camera testimony and the father’s testimony about the mother disclosing domestic violence to him. It also properly considered the children’s wishes and gave them the weight commensurate with their level of maturity and age.

 

 

Motion to dismiss under CPLR 3211 for improper venue denied where the totality of the wife’s actions did not amount to clear and convincing evidence that she intended to give up her domicile in New York and make New Jersey her permanent home.

In Shendelman v  Shendelman, --- N.Y.S.3d ----, 2024 WL 4438328 (1^st Dept., 2024) the Appellate Division affirmed an order that denied the defendant husband’s motion to dismiss the divorce action on jurisdictional grounds under CPLR 3211(a), improper venue grounds, and forum non conveniens. It held that the court properly denied the motion to dismiss because the husband failed to meet his burden of proving that the wife intended to give up her New York domicile when they moved to New Jersey in 2020. The parties continued to retain ownership of their marital home in the Bronx; the wife worked in New York throughout the entire relevant time period; she voted in New York; had a New York driver’s license and registered her car in New York; she renewed her New York gun license; and continued to be seen by her medical providers in New York; the parties’ children continued to attend high school in New York even after the family moved to New Jersey during the COVID–19 pandemic. Further, it was uncontested by the parties, that the property they acquired in New Jersey was purchased for investment. Additionally, the postnuptial agreement, which was negotiated over six months, expressly stated that it was governed by New York law and that an uncontested matrimonial action must be brought in New York as well. In sum, the totality of the wife’s actions did not amount to clear and convincing evidence that she intended to give up her domicile in New York and make New Jersey her permanent home. Furthermore, the court providently exercised its discretion in denying the husband’s motion for dismissal on the additional ground of forum non conveniens because the matter had a substantial nexus with this state, rendering New York an appropriate forum. The husband’s improper venue argument was unavailing because the parties’ written postnuptial agreement clearly specified that a matrimonial action was to be filed in New York County (see CPLR 501).

 

 

Appellate Division, Second Department

 

 

Where the parents have equal parental access with the children, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation is deemed the noncustodial parent for child support purposes.

 

In Cicale v Cicale, --- N.Y.S.3d ----, 2024 WL 4364368, 2024 N.Y. Slip Op. 04759(2d Dept., 2024) the parties were married in April 2013 and had two children. In February 2022, the plaintiff commenced the action for a divorce. The Supreme Court,(1) awarded the plaintiff final decision-making authority and primary residential custody of the children, with the parties having a shared parental access schedule of equal time with the children, (2) denied the defendant child support, (3) directed the defendant to pay child support arrears of $7,500 at a rate of $150 per week, and (4) directed the defendant to pay the plaintiff $33,000 in equitable distribution of the marital property. The Appellate Division deleted the provisions awarding the plaintiff final decision-making authority and primary residential custody of the children and awarded the parties joint residential custody of the children. It held, inter alia,  that based on the totality of the circumstances, an award of joint residential custody was in the children’s best interests. It noted that a parent who has physical custody of the child for a majority of the time in a shared custody situation is considered the custodial parent for child support purposes. Where the parents have equal parental access with the children, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation is deemed the noncustodial parent for child support purposes. Here, the Supreme Court providently exercised its discretion in deviating from the presumptively correct amount of child support in eliminating the plaintiff’s basic child support obligation. However, the Supreme Court erred in directing the defendant to pay the plaintiff child support arrears of $7,500 at a rate of $150 per week. In particular, the court erred in determining that the defendant was the noncustodial parent for the purposes of determining child support arrears, as the defendant had physical custody of the children for a majority of the time during the relevant period (see Bast v. Rossoff, 91 N.Y.2d at 728, 675 N.Y.S.2d 19, 697 N.E.2d 1009).

 

 

Where the parties' stipulation stated that the defendant was entitled to 16.5% of the plaintiff’s pension, the plaintiff was required under the stipulation to distribute 16.5% of his pension payment to the defendant even in the absence of a QDRO.

 

In O’Malley v O’Malley, --- N.Y.S.3d ----, 229 A.D.3d 798, 2024 WL 3588259, 2024 N.Y. Slip Op. 04077 (2d Dept., 2024) the Appellate Divison affirmed an order which, in part, held the plaintiff in civil contempt for failing to comply with the parties' stipulation of settlement, which was incorporated, but did not merge, into a judgment of divorce dated October 31, 2007. The stipulation provided, inter alia, that the defendant was entitled to 16.5% of the plaintiff’s pension. Upon his retirement, the plaintiff failed to pay the defendant her portion of his pension and failed to designate her as an “Alternate Payee” under the pension plan. In August 2021, the defendant moved, inter alia, for an award of pension payment arrears, and to hold the plaintiff in civil contempt for, inter alia, failing to distribute to her 16.5% of his pension. The Appellate Division held, inter alia, that the Supreme Court properly granted the defendant’s motion to hold the plaintiff in civil contempt for failing to comply with the provisions of the stipulation concerning the defendant’s share of the plaintiff’s pension. The stipulation stated that the defendant was entitled to 16.5% of the plaintiff’s pension. Contrary to the plaintiff’s contention, the plaintiff was required under the stipulation to distribute 16.5% of his pension payment to the defendant even in the absence of a QDRO. The plaintiff was also required to name the defendant as a survivor beneficiary, which he did not do. By failing to make arrangements for the defendant to receive her portion of the pension, the plaintiff disobeyed an unequivocal order of the court. The Supreme Court also properly granted, without a hearing, inter alia, that branch of the defendant’s motion which was for child support arrears and, in effect, that branch of the defendant’s motion which was for an award of arrears related to the plaintiff’s pension to the extent of directing the parties to prepare a supplemental QDRO relating to the distribution of pension arrears.  The plaintiff failed to establish that he had made arrangements for the defendant to receive 16.5% of his pension, as was required by the stipulation.

 

 

Appellate Division, Fourth Department

The court did not err in granting a refund of the overpayment of maintenance. Generally, a payor spouse is not entitled to restitution or recoupment of maintenance payments. However, allowing the plaintiff to retain the maintenance overpayments made in violation of a wage withholding order would result in a windfall for the plaintiff.

 

In Snyder v Holeva, --- N.Y.S.3d ----, 2024 WL 4402731, 2024 N.Y. Slip Op. 04879 (4th Dept., 2024) the  Plaintiff wife and defendant husband divorced in 2019 after a six-year, childless marriage. Pursuant to the terms of their separation agreement, which was incorporated but not merged into the judgment of divorce, the defendant was obligated to make monthly maintenance payments to the plaintiff for 20 months. The maintenance obligation was reduced to an income withholding for support order (wage withholding order) that was served on the defendant’s employer. Despite the fact that the defendant’s obligations under the order were expressly terminated after 20 months, his employer thereafter continued to withhold the same portion of his income and make monthly payments to the plaintiff. Defendant filed a motion in this post-divorce action seeking, inter alia, an order terminating the wage withholding order and directing the plaintiff to reimburse him for the overpayment of maintenance. The plaintiff consented to the termination of the wage withholding order but opposed the defendant’s request for reimbursement of the maintenance overpayment. Supreme Court, inter alia, directed the plaintiff to refund the maintenance overpayment. The Appellate Division affirmed. It held that the court did not err in granting that part of the motion seeking a refund of the overpayment of maintenance. Generally, as a matter of public policy, a payor spouse is not entitled to restitution or recoupment of maintenance payments. However, courts have carved out exceptions to this general rule in certain circumstances. Both parties knowingly entered into the settlement agreement, which, along with the wage withholding order, stated that the maintenance payments to the plaintiff ended after 20 months. Thus, the plaintiff knew that she was not entitled to the payments made beyond that point. Moreover, the extra payments were not voluntarily made by the defendant; nor were they made pursuant to any court order. Therefore, the defendant reasonably believed that the terms of the wage withholding order would be honored by his employer. The plaintiff simply relied on the general public policy in support of her contention that she was entitled to retain the money overpaid. Under these circumstances, allowing the plaintiff to retain the maintenance overpayments made in violation of the wage withholding order would result in a windfall to the plaintiff, and the court’s award to the defendant of the reimbursement of the overpayments did not implicate public policy.

 

           

Order which terminated the mother and father's parental rights children on the ground of permanent neglect affirmed where they failed to address the problems that caused the removal of the children.

 

In  Matter of Jacob A, --- N.Y.S.3d ----, 2024 WL 4402428, 2024 N.Y. Slip Op. 04864 (4^th Dept., 2024) the Appellate Division affirmed an order pursuant to Social Services Law § 384-b, which terminated the mother and father's parental rights with respect to the subject children on the ground of permanent neglect. It found, inter alia, that although they engaged in parenting classes, they failed to address the problems that caused the removal of the children (see Matter of Leon RR, 48 N.Y.2d 117,[1979]). The children were removed due to the deplorable conditions of the home, and those conditions remained even four years after the petitioner became involved with the respondents. The father failed to engage meaningfully in mental health treatment. Although both parents engaged in parenting classes attendance at the myriad programs and visits arranged for respondents clearly did not signal the necessary change, nor did their desire for the return of the children. “Of singular importance in reaching a determination as to whether respondents have actually learned to accept responsibility and modify their behavior must be an evaluation of respondents’ own testimony, particularly their credibility, as well as the evidence of witnesses (professional and non-professional) who dealt with them in the various programs and observed them and the children.” It concluded that the petitioner established that, despite any minimal progress, respondents did not actually learn to accept responsibility and modify their behavior.

 

Supreme Court properly held that the “cumulative effect of all issues” other than the extended disruption of custody established that extraordinary circumstances existed warranting a best interest hearing.

 

In Matter of Davis v Castillo, --- N.Y.S.3d ----, 2024 WL 4314573, 2024 N.Y. Slip Op. 04689 (4^th Dept.,2024) the Appellate Division affirmed an order which awarded the grandmother custody of the subject child and rejected the mother’s contention that the grandmother failed to establish the existence of extraordinary circumstances. It agreed with the mother that, in determining that extraordinary circumstances exist, the Family Court erred in relying on the fact that the child had been in the custody of the grandmother for an extended period of time. The child was placed in the grandmother’s custody only after an order of protection was issued against the mother regarding the child, and the mother thereafter petitioned to regain custody. However, the Court properly further held that the “cumulative effect of all issues” (Matter of Tuttle v. Worthington, 219 A.D.3d 1142, 1144,[4th Dept. 2023] other than the extended disruption of custody established that extraordinary circumstances existed. The evidence established that the mother was an unfit and neglectful parent based on, inter alia, the mother’s use of excessive corporal punishment; her disregard of court orders requiring supervision of her access, and her precluding contact between the child and her boyfriend, who murdered the child’s father; her failure to recognize the child’s need for counseling or to facilitate such counseling; her failure to take any interest in the child’s education; and her conduct in allowing repeated exposure of the child to his father’s murderer and in nurturing that relationship.

 

October 1, 2024

 

Laws of 2024, Chapter 327, Effective September 27, 2024 Amended the Child Support Provisions of the Domestic Relations Law and Family Court Act

 

 

Laws of 2024, Chapter 327, Effective September 27, 2024 amended the Family Court Act (Family Court Act §413 (1)(b)(5)(iv) and Family Court Act §413 (1)(k)) and the Domestic Relations Law (Domestic Relations Law §240 (1-b)(5)(iv) and Domestic Relations Law §240 (1-b)(k)), relating to factors that judges may evaluate when determining the amount of income that may be attributed or imputed for purposes of determining child support payments.

 

Laws of 2024, Chapter 327, Effective September 27, 2024 also amended the Family Court Act (Family Court Act §413 (1)(b)(5)(v) and Family Court Act §451 (3)(a)) and the Domestic Relations Law (Domestic Relations Law §240 (1-b)(5)(v) and  Domestic Relations Law §236 (B)(9)(b)(2)(i)) to remove the exceptions allowing for consideration of incarceration to be voluntary in determining child support orders. 

 

These changes were necessary to bring New York State into conformity with the Federal Regulations regarding child support calculation procedures and factors that a court may consider when determining child support orders.[58]

 

Family Court Act §413 (1)(b)(5)(iv) was amended to read as follows:

 (iv) at the discretion of the court, the court may attribute or impute

 income from[59] such other resources as may be available to the parent,

 including, but not limited to:

 (A) non-income producing assets,

 (B) meals, lodging, memberships, automobiles or other perquisites that

 are provided as part of compensation for employment to the extent that

 such perquisites constitute expenditures for personal use, or which

 expenditures directly or [60] indirectly confer personal economic

 benefits,

 (C) fringe benefits provided as part of compensation for employment,

 and

 (D) money, goods, or services provided by relatives and friends;

 In determining the amount of income that may be attributed or imputed,

 the court shall consider the specific circumstances of the parent, to

 the extent known, including such factors as the parent's assets, resi-

 dence, employment and earning history, job skills, educational attain-

 ment, literacy, age, health, criminal record and other employment barri-

 ers, record of seeking work, the local job market, the availability of

 employers willing to hire the parent, prevailing earnings level in the

local community, and other relevant background factors such as the age,

 number, needs, and care of the children covered by the child support

 order. Attribution or imputation of income shall be accompanied by

 specific written findings identifying the basis or bases for such deter-

 mination utilizing factors required or permitted to be considered pursu-

 ant to this clause;

 

Domestic Relations Law §240 (1-b) (5)(iv) was amended to read as follows:

 (iv) at the discretion of the court, the court may attribute or impute

 income from[61] such other resources as may be available to the parent,

 including, but not limited to:

 (A) non-income producing assets,

 (B) meals, lodging, memberships, automobiles or other perquisites that

 are provided as part of compensation for employment to the extent that

 such perquisites constitute expenditures for personal use, or which

 expenditures directly or [62] indirectly confer personal economic

 benefits,

 (C) fringe benefits provided as part of compensation for employment,

 and

 (D) money, goods, or services provided by relatives and friends;

 In determining the amount of income that may be attributed or imputed,

 the court shall consider the specific circumstances of the parent, to

 the extent known, including such factors as the parent's assets, resi-

 dence, employment and earning history, job skills, educational attain-

 ment, literacy, age, health, criminal record and other employment barri-

 ers, record of seeking work, the local job market, the availability of

 employers willing to hire the parent, prevailing earnings level in the

 local community, and other relevant background factors such as the age,

 number, needs, and care of the children covered by the child support

 order. Attribution or imputation of income shall be accompanied by

 specific written findings identifying the basis or bases for such deter-

 mination utilizing factors required or permitted to be considered pursu-

ant to this clause;

 

Family Court Act §413 (1)(k) was amended to read as follows:

(k) When a party has defaulted and/or the court is otherwise presented

with insufficient evidence to determine gross income, [63]

the support obligation shall be based on

available information about the specific circumstances of the parent, in

accordance with clause (iv) of subparagraph five of paragraph (b) of

this subdivision. Such order may be retroactively modified upward, with-

out a showing of change in circumstances.

 

Domestic Relations Law §240 (1-b) (k) was amended to read as follows:

(k) When a party has defaulted and/or the court is otherwise presented

with insufficient evidence to determine gross income, [64]

the support obligation shall be based on

available information about the specific circumstances of the parent, in

accordance with clause (iv) of subparagraph five of paragraph (b) of

this subdivision. Such order may be retroactively modified upward, with-

out a showing of change in circumstances.

 

Family Court Act §413 (1)(b)(5)(v) was amended to read as follows:

(v) an amount imputed as income based upon the parent's former

resources or income, if the court determines that a parent has reduced

resources or income in order to reduce or avoid the parent's obligation

for child support; provided that incarceration shall not be considered

voluntary unemployment;[65]

 

Domestic Relations Law §240 (1-b) (5)(v) was amended to read as follows:

(v) an amount imputed as income based upon the parent's former

resources or income, if the court determines that a parent has reduced

 resources or income in order to reduce or avoid the parent's obligation

for child support; provided that incarceration shall not be considered

voluntary unemployment;[66]

 

Family Court Act §451 (3)(a) was amended to read  as follows:

(a) The court may modify an order of child support, including an order

incorporating without merging an agreement or stipulation of the

parties, upon a showing of a substantial change in circumstances.

Incarceration shall not be considered voluntary unemployment and shall

not be a bar to finding a substantial change in circumstances.[67]

.

 

Domestic Relations Law §236 (B)(9)(b)(2)(i) was amended to read as follows:

(i) The court may modify an order of child support, including an order

incorporating without merging an agreement or stipulation of the

parties, upon a showing of a substantial change in circumstances.

Incarceration shall not be considered voluntary unemployment and shall

not be a bar to finding a substantial change in circumstances.[68]

 

 

Appellate Division, Second Department

 

 

In order to give full meaning and effect to the parties’ stipulation and to enable the plaintiff to fulfill his obligations in connection therewith, the stipulation had to be construed to permit the plaintiff to access the former marital residence with a bank appraiser

 

In Ippolito v Ippolito, 2024 WL 4139238 (2d Dept., 2024) the parties judgment of divorce entered July 2, 2021 incorporated but did not merge a stipulation of settlement entered into by the parties in which provided, inter alia, that the defendant shall have “sole and exclusive occupancy” of the former marital residence until February 1, 2028, that the plaintiff shall have exclusive use and occupancy of the former marital residence thereafter, and that “[n]o later than the termination of [the defendant’s] period of exclusive occupancy, the [plaintiff] will endeavor to remove the [defendant’s] name from the mortgage ... by either paying off said mortgage, refinancing said mortgage, modifying said mortgage, assumption or by sale of the Marital Residence (including by short sale).” Additionally, pursuant to the stipulation, the parties acknowledged that the mortgage had not been paid since in or about January 2018, and the plaintiff “agrees he shall act to prevent any judgment of foreclosure and sale during the [defendant’s] period of exclusive occupancy ... which may include, immediately upon service of process retaining counsel ..., making partial payments, and/or negotiating a settlement with the bank(s).” The plaintiff moved to permit him to access the former marital residence with a bank appraiser for the purpose of conducting an appraisal and for an award of attorneys’ fees. The plaintiff alleged that “[t]he bank requires an appraisal for the purposes of negotiations” and that the defendant’s failure to cooperate with an appraisal interferes with his ability to negotiate with the bank, which is necessary to comply with the terms of the parties’ stipulation. The defendant cross-moved pursuant to 22 NYCRR 130–1.1 for an award of sanctions. Supreme Court denied the plaintiff’s motion and granted the defendant’s cross-motion to the extent of awarding the defendant attorneys’ fees in the sum of $1,202.50. The Appellate Division held that the Supreme Court erred in denying the plaintiff’s motion to permit him to access the former marital residence with a bank appraiser for the purpose of conducting an appraisal. It was not determinative that the stipulation failed to specifically provide for this occurrence. As correctly argued by the plaintiff, construing the stipulation in a manner so as to deny him reasonable access to the former marital residence with a bank appraiser rendered meaningless those provisions of the stipulation that obligated him to endeavor to remove the defendant’s name from the mortgage “by either paying off said mortgage, refinancing said mortgage, modifying said mortgage, assumption or by sale of the Marital Residence (including by short sale),” and to prevent a judgment of foreclosure and sale by, inter alia, negotiating a settlement with the bank. Additionally, the stipulation contemplated that the plaintiff will fulfill these obligations during the defendant’s period of sole and exclusive occupancy. Notably, an action to foreclose the mortgage had been commenced against the parties. An appraisal was required by the plaintiff’s bank to resolve a settlement or to negotiate a discounted payoff. Therefore, in order to give full meaning and effect to the parties’ stipulation and to enable the plaintiff to fulfill his obligations in connection therewith, the stipulation had to be construed to permit the plaintiff to access the former marital residence with a bank appraiser for the purpose of conducting an appraisal.

 

 

Appellate Division, Third Department

 

In a family offense proceeding, the fact that some of the alleged conduct occurred years earlier is not dispositive, as “the issue is the imminence of the danger and not the age of the threat” However, the frequency and age of the alleged conduct is relevant in assessing whether there is “a pattern of imminent and ongoing danger to the” petitioner

 

In Matter of Boltz v Geraci, --- N.Y.S.3d ----, 2024 WL 4229688, 2024 N.Y. Slip Op. 04500 (3d Dept., 2024) the Appellate Division affirmed an order of the Family Court which dismissed petitioner’s application for an order of protection. It held, inter alia, that in the context of a family offense petition, the fact that some of the alleged conduct occurred years earlier is not dispositive, as “the issue is the imminence of the danger and not the age of the threat” (Matter of Pamela N. v. Neil N., 93 A.D.3d 1107, 1109 n., [3d Dept. 2012] Nevertheless, the frequency and age of the alleged conduct remains relevant in assessing whether there is “a pattern of imminent and ongoing danger to the” petitioner that would warrant relief.  Petitioner’s husband described a March 2022 telephone call in which respondent complained to him about petitioner contacting respondent’s place of employment, warning that he had “better keep [petitioner] in line or else there will be serious consequences.” Petitioner testified as to how learning of that conversation, particularly after she was served with respondent’s application for an order of protection against her in April 2022, made her afraid because of respondent’s prior abusive and harassing conduct. Petitioner described, in particular, how respondent had subjected her to various forms of physical and mental abuse prior to their 2004 divorce and how he had threatened to crush her skull during a 2014 telephone call. Petitioner acknowledged that she had not seen respondent, and did not believe that she had spoken to him on the telephone, since 2014. Respondent also testified, confirming petitioner’s testimony that he had not seen her in person or talked to her since 2014. He denied her claim that he had threatened her during a 2014 telephone call. Respondent explained how the March 2022 telephone conversation with petitioner’s husband did not involve threats of violence and  that he meant legal action as opposed to any improper threat. Family Court credited respondent’s account of limited interactions between him and petitioner and a March 2022 telephone call in which he did not intend to threaten petitioner with violence or otherwise do anything improper. Family Court accurately observed that the prior conduct alleged by petitioner was scattered over decades and had ceased by 2014, after which time the parties had minimal or no contact, and concluded that she had simply failed to “establish a cognizable pattern of behavior on the part of [respondent] sufficient to make the more remote allegations relevant” to the 2022 telephone call or otherwise suggest that she faced an immediate and ongoing threat from respondent that would warrant relief (Matter of Opray v. Fitzharris, 84 A.D.3d at 1093, 924 N.Y.S.2d 421).

 

 

Family Court is required to craft a visitation schedule that allows a parent frequent and regular access to the child, unless doing so would be inimical to the child’s welfare. Where the court made no such finding here, and instead, improperly delegated the parenting time determination to the father, the error required reversal

In Matter of C.M. v. Z.N., --- N.Y.S.3d ----, 2024 WL 4152111, 2024 N.Y. Slip Op. 04427 (3d Dept., 2024) a custody modification proceeding, in which custody was awarded to the father, the Appellate Division observed that Family Court is required to craft a schedule that allows that parent frequent and regular access to the child, unless it finds that doing so would be inimical to the child’s welfare. The court made no such finding here. Instead, Family Court improperly delegated the parenting time determination to the father, and this error required reversal. In remitting the matter to the Family Court for a new hearing to determine whether parenting time with the mother was appropriate or whether it would be detrimental to the child’s welfare it took the opportunity to remind Family Court that statements made by a child during a Lincoln hearing carry no independent evidentiary value and that such statements must remain confidential to protect children in custody proceedings “from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships. Information shared by a child during a Lincoln hearing may serve “to corroborate other evidence adduced at a fact-finding hearing or to ascertain a child’s thoughts and feelings regarding the crafting of a custodial arrangement, but such considerations must remain silent to ensure that the child’s right to confidentiality is protected. It pointed out in a footnote that at a Lincoln hearing, Family Court should tell the child that it will keep the information shared by the child confidential, and it should keep that promise by sealing the transcript of the Lincoln hearing. Additionally, the court should refrain from promising the child any particular outcome in the case.

 

 

In evaluating whether visitation with a grandparent is in a child’s best interests, the most significant consideration is the nature and quality of the relationship between the grandparent and the child

 

In Matter of Marilyn Y. v. Carmela --- N.Y.S.3d ----, 2024 WL 4152043, 2024 N.Y. Slip Op. 04425 (3d Dept., 2024) the grandmother commenced a proceeding seeking visitation with the child after the father passed away. Following a fact-finding hearing, Family Court awarded biweekly unsupervised visitation to the grandmother. The Appellate Division concluded that the record provided a sound and substantial basis for Family Court’s determination that it was in the child’s best interests to grant the grandmother visitation rights. It observed that where either parent of a minor child has died, a grandparent of such child has “an absolute right” to apply for visitation (Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181, 573 N.Y.S.2d 36 [1991]), and the court “may make such directions as the best interest of the child may require” (Domestic Relations Law § 72[1]). In evaluating whether visitation with a grandparent is in a child’s best interests, the most significant consideration is the nature and quality of the relationship between the grandparent and the child. It concluded that the record provided a sound and substantial basis for Family Court’s determination that it was in the child’s best interests to grant the grandmother visitation rights.

 

 

Where, as here, a parent seeks to regain custody from a nonparent well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter

 

In Matter of Rebecca S., v. Ashley T., --- N.Y.S.3d ----, 2024 WL 4152133, 2024 N.Y. Slip Op. 04426 (3d Dept.,2024) in December 2019, the aunt filed an ex parte application for temporary custody of the child, which was granted. In September 2020, the parties consented to a order awarding the aunt sole custody of the child and providing the parents with supervised visitation. In March 2022, the mother filed a pro se petition to modify the consent order and regain custody of the child. The aunt opposed and cross-petitioned for an order of sole custody supported by a finding of extraordinary circumstances – relief consented to by the father and supported by the attorney for the child. At the fact-finding hearing, at the close of the mother’s case-in-chief, Family Court granted a motion by the aunt to dismiss the mother’s petition for failure to establish a change in circumstances. The court ultimately granted the aunt’s cross-petition, concluding that she had established both a change in circumstances and extraordinary circumstances and that the best interests of the child lie in an award of sole custody to her, with supervised visitation to the parents. The mother appealed, exclusively arguing that the aunt failed to establish a change in circumstances between entry of the November 2021 order and the filing of her April 2022 cross-petition, and therefore requesting that the November 2021 order be reinstated. The Appellate Division noted that where, as here, a parent seeks to regain custody from a nonparent well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter. Here, the consent orders had not included any finding of extraordinary circumstances; the aunt specifically requested that finding be made. The mother therefore bore no obligation to demonstrate a change in circumstances. Nonetheless, the mother had not challenged the dismissal of her petition, and she therefore abandoned any argument with respect to this issue. Moreover, the aunt also did not need to demonstrate a change in circumstances upon her cross-petition. Instead, the aunt bore the burden, with respect to both her cross-petition and in opposing the mother’s petition, to demonstrate extraordinary circumstances. A nonparent seeking to modify an existing order entered on consent does not bear a two-fold burden. Upon appeal, the mother did not challenge Family Court’s extraordinary circumstances finding or its best interests analysis. Although Family Court misunderstood the applicable burden, it found that the mother abandoned any germane challenge to the aunt’s cross-petition.

 

 

Although the mother did not take an appeal from the finding of neglect, her timely appeal of the subsequently issued dispositional order brought up for review the issues raised in the fact-finding decision

 

In Matter of John O, 2024 WL 4152196 (3d Dept., 2024) a neglect proceeding the Appellate Division held that although the mother did not take an appeal from the finding of neglect entered in October 2021, her timely appeal of the subsequently issued dispositional order entered in October 2022 brought up for review the issues raised in the fact-finding decision. The mother was also an aggrieved party because, even though she was not aggrieved by the dispositional portion of the order by virtue of her consent granting the grandparents custody of the youngest child, that did not bar her appeal from the part of the order finding neglect after the fact-finding hearing. Nor did her consent to the dispositional order render her appeal moot, given the potential impact of a neglect finding in future proceedings against her.

---

[1] Laws of 2024, Ch 664, §1

[2] 2024 NY Legis Memo 664

[3] See 2024 NY Legis Memo 664

[4] See 2024 NY Legis Memo 664

 

[5] 2024 NY Legis Memo Ch 664

[6] Laws of 2024, Ch 664, §2

[7] 2024 NY Legis Memo 664

[8] Laws of 2024, Ch 664, §3

[9] 2024 NY Legis Memo 664

[10] 2024 NY Legis Memo 664

[11] 2024 NY Legis Memo 664

[12] 2024 NY Legis Memo 664

 

[13] Laws of 2024, Ch 664, §4

[14] 2024 NY Legis Memo 664

[15] 2024 NY Legis Memo 664

[16] 2024 NY Legis Memo 664

[17] Laws of 2024, Ch 664, §5

[18] 2024 NY Legis Memo 664

[19] 2024 NY Legis Memo 664

[20] 2024 NY Legis Memo 664

[21] Laws of 2024, Ch 664, §6

 

[22] 2024 NY Legis Memo 664

[23] Laws of 2024, Ch 664, §7

[24] 2024 NY Legis Memo 664

[25] Laws of 2024, Ch 664, §9

[26] 2024 NY Legis Memo 664

[27] 2024 NY Legis Memo 664

[28] Laws of 2024, Ch 664, §10

[29] Laws of 2024, Ch 664, §1

[30] 2024 NY Legis Memo 664

[31] See 2024 NY Legis Memo 664

[32] See 2024 NY Legis Memo 664

 

[33] 2024 NY Legis Memo Ch 664

[34] Laws of 2024, Ch 664, §2

[35] 2024 NY Legis Memo 664

[36] Laws of 2024, Ch 664, §3

[37] 2024 NY Legis Memo 664

[38] 2024 NY Legis Memo 664

[39] 2024 NY Legis Memo 664

[40] 2024 NY Legis Memo 664

 

[41] Laws of 2024, Ch 664, §4

[42] 2024 NY Legis Memo 664

[43] 2024 NY Legis Memo 664

[44] 2024 NY Legis Memo 664

[45] Laws of 2024, Ch 664, §5

[46] 2024 NY Legis Memo 664

[47] 2024 NY Legis Memo 664

[48] 2024 NY Legis Memo 664

[49] Laws of 2024, Ch 664, §6

 

[50] 2024 NY Legis Memo 664

[51] Laws of 2024, Ch 664, §7

 

[52] 2024 NY Legis Memo 664

[53] Laws of 2024, Ch 664, §9

 

[54] 2024 NY Legis Memo 664

[55] 2024 NY Legis Memo 664

[56] Laws of 2024, Ch 664, §10

[57] Laws of 2024, Ch 664, §11

 

[58] See 2024 NY Legis Memo

[59] Deleted: [,]

[60] Deleted: [indirecly]

[61] Deleted: [,]

[62] Deleted: [indirecly]

[63] Deleted: [the court shall order child support based upon the needs or standard of living of the child, whichever is greater]

[64] Deleted: [the court shall order child support based upon the needs or standard of living of the child, whichever is greater]

[65] Deleted: [, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment].

[66] Deleted [, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment]

[67] Deleted: [provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment]

[68] Deleted: [provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment]