tag:blogger.com,1999:blog-222991142024-03-27T02:37:57.158-04:00New York Divorce and Family Law BlogThe definitive site on the web for New York Divorce and Family law.Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.comBlogger213125tag:blogger.com,1999:blog-22299114.post-17113604633104025192023-12-13T10:47:00.003-05:002023-12-13T10:47:29.896-05:00Recent Decisions and Legislation, December 13, 2023<p><span style="font-family: arial;"><b> </b></span></p><h1><span style="font-family: arial;"><span style="font-size: 11.0pt; line-height: 141%;">December 6, 2023</span><span style="font-size: 11.0pt; line-height: 141%; mso-fareast-font-family: "Times New Roman"; mso-fareast-theme-font: major-fareast;"><o:p></o:p></span></span></h1>
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<h1 style="line-height: normal;"><!--[if supportFields]><span lang=EN-CA
style='font-size:11.0pt;mso-ansi-language:EN-CA;font-weight:normal'><span
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lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA;font-weight:normal'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><span lang="EN-CA" style="font-size: 11pt;"><br />
</span><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">A
court cannot reform an agreement to conform to what it thinks is proper, if the
parties have not assented to such a reformation. A plenary action is necessary to
reform a stipulation</span><span style="font-size: 11pt;">.<o:p></o:p></span></span></h1>
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<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In
Anderson v Anderson, --- N.Y.S.3d ----, 2023 WL 8246131, 2023 N.Y. Slip Op.
06108 (2d Dept.,2023) in July 2002, the plaintiff commenced this action for
divorce. On February 1, 2005, the parties entered into an oral stipulation of
settlement in open court, which provided, inter alia, that the defendant was
presently receiving disability benefits under his pension plan, but that “there
will come a time that he will be entitled to retirement benefits, and, at that
time, which will be at age sixty two, he will divide the marital share of the
pension with his wife equally.” The stipulation of settlement was incorporated
but not merged into the parties’ judgment of divorce dated July 12, 2005. A
domestic relations order<span style="mso-spacerun: yes;"> </span>dated November
1, 2005, similarly provided that the plaintiff would receive a marital share of
the defendant’s retirement benefits “at such time as [he] has retired and is
actually receiving a regular service retirement allowance.” In 2017, the
parties learned that the original DRO could not be implemented by the
defendant’s pension plan, because the defendant had retired on a disability
pension in 2001, and that the defendant’s disability pension would not be
replaced by a regular service retirement pension when he reached age 62. In
2019, the defendant submitted a proposed amended DRO with notice of settlement,
providing for distribution of a marital share of the defendant’s pension
benefits to the plaintiff, commencing on his 62nd birthday. The plaintiff
opposed the entry of the proposed DRO and moved, inter alia for issuance of an
amended DRO providing for retroactive distribution of the plaintiff’s share of
the defendant’s pension benefits. Supreme Court granted the plaintiff’s motion
to the extent that it concluded that there was an “ambiguity between the
parties’ oral Stipulation of Settlement and the Judgment of Divorce,” that the
parties had been mistaken as to the status of the defendant’s pension, but
their intent for the plaintiff to receive her “full marital portion of
Defendant’s retirement benefits upon Defendant’s receipt of same” was clear,
and that the plaintiff’s proposed amended DRO should be issued. The Appellate
Division reversed. It<span style="mso-spacerun: yes;"> </span>held that a court
cannot reform an agreement to conform to what it thinks is proper, if the
parties have not assented to such a reformation. Supreme Court should have
rejected the plaintiff’s contention that the stipulation of settlement was
ambiguous. The interpretation of the stipulation advanced by the plaintiff
would render meaningless the terms of the stipulation providing that
distribution of pension benefits to the plaintiff would commence in the future,
when the defendant reached the age of 62. It held the agreement was not
ambiguous. To the extent that the Supreme Court determined that the stipulation
of settlement was affected by a mutual mistake, reformation was not
appropriate. A motion is not the proper vehicle for challenging a separation
agreement incorporated but not merged into a judgment of divorce. Rather, the
plaintiff was required to commence a plenary action to reform the stipulation.
In any event, reformation of the stipulation was unwarranted, as the parties’
mistake regarding the category of benefits the defendant would receive did not
“involve a fundamental assumption of the contract. <o:p></o:p></span></span></b></p>
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<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Conclusory and nonspecific allegations relating to a
change in circumstances are insufficient to justify a hearing on a change in
custody<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Wagner v Del Valle, ---
N.Y.S.3d ----, 2023 WL 8246064, 2023 N.Y. Slip Op. 06143 (2d Dept.,2023) the
Appellate Division held that in order to modify an existing custody
arrangement, there must be a showing of a subsequent change in circumstances so
that modification is required to protect the best interest[s] of the child.
Entitlement to a hearing on a modification petition, however, is not automatic;
the petitioning parent must make a threshold evidentiary showing of a change in
circumstances demonstrating a need for modification in order to insure the
child’s best interests. Conclusory and nonspecific allegations relating to a
change in circumstances are insufficient to justify a hearing on the issue of
whether a change in custody would be in the best interests of the child.<o:p></o:p></span></span></b></p>
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<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></u></b></p>
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<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">The euthanasia of a companion animal without the
consent of the other party is not violative of the Automatic Orders in a
matrimonial action<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>C.M., v. E.M.,
2023 WL 8360025 (Sup. Ct.,2023) the Automatic Orders that were served action
provided: (1) Neither part [sic] shall sell, transfer, encumber, conceal,
assign, remove or in any way dispose of, without the consent of the other party
in writing, or by order of the court, any property (including, but not limited
to, real estate, personal property, cash accounts, stocks, mutual funds, bank
accounts, cars and boats) individually or jointly held by the parties, except
in the usual course of business, for customary and usual household expenses or
for reasonable attorney’s fees in connection with this action. Supreme Court
observed that the Automatic Orders are codified within DRL § 236(B)(2)(b). That
section is entirely devoid of any reference to companion animals. Companion
animals are not listed, nor provided in, the text of the Automatic Orders. The
Supreme Court held that the euthanasia of a companion animal without the
consent of the other party is not violative of the Automatic Orders in a matrimonial
action.<o:p></o:p></span></span></b></p>
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<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">CPLR § 2106 was adopted to provide alternatives to
affidavits requiring notarization for those persons who are physically located
outside the United States of America<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In S.B., v. A.K., --- N.Y.S.3d ----, 2023 WL 8409732,
2023 N.Y. Slip Op. 23373 (Sup. Ct, 2023) the action was commenced with the
Plaintiff’s filing of a Summons with Notice. In support of his motion for an
order declaring the Defendant in default for failure to appear Plaintiff
submitted a Statement of Service pursuant to CPLR § 2106(b) which included as
paragraph seven the following language:<span style="mso-spacerun: yes;">
</span>”I affirm this 10 day of March, 2023, under the penalties of perjury under
the laws of New York, which may include a fine or imprisonment, that I am
physically located outside the geographic boundaries of the United States,
Puerto Rico, the United States Virgin Islands, or any territory or insular
possession subject to the jurisdiction of the United States, that the foregoing
is true, and I understand that this document may be filed in an action or
proceeding in a court of law.” The Affidavit of Service was not signed before a
notary public or other authorized official (see generally U.S. Bank National
Association v Langner, 168 AD3d 1021 [2d Dept 2019])” The Court observed that
CPLR § 2309 sets forth the way oaths and affirmations are to be administered
and notes in section (c) regarding oaths and affirmations taken without the
state: An oath or affirmation taken without the state shall be treated as if
taken within the state if it is accompanied by such certificate or certificates
as would be required to entitle a deed acknowledged without the state to be
recorded within the state if such deed has been acknowledged before the officer
who administered the oath or affirmation. CPLR § 2106 was adopted to provide
alternatives to affidavits requiring notarization in two instances, the first
being for attorneys and health care practitioners licensed to practice within
New York State who are not parties to an action and for those who are
physically located outside the United States of America noting: An oath or
affirmation taken without the state shall be treated as if taken within the
state if it is accompanied by such certificate or certificates as would be
required to entitle a deed acknowledged without the state to be recorded within
the state if such deed has been acknowledged before the officer who
administered the oath or affirmation. CPLR § 2106 also provides: ”(b) The
statement of any person, when that person is physically located outside the
geographic boundaries of the United States, Puerto Rico, the United States
Virgin Islands, or any territory or insular possession subject to the
jurisdiction of the United States, subscribed and affirmed by that person to be
true under the penalties of perjury, may be used in an action in lieu of and
with the same force and effect as an affidavit. Such affirmation shall be in
substantially the following form:” I affirm this ___ day of ______, ____, under
the penalties of perjury under the laws of New York, which may include a fine
or imprisonment, that I am physically located outside the geographic boundaries
of the United States, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the United
States, that the foregoing is true, and I understand that this document may be
filed in an action or proceeding in a court of law.(Signature)” The Court held
that Plaintiff’s submission of the CPLR § 2106(b) Statement was permissible and
in acceptable form, and granted Plaintiff’s application to hold Defendant in
default.<o:p></o:p></span></span></b></p>
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<h1><span style="font-size: 11.0pt; line-height: 141%; mso-bidi-font-weight: normal;"><span style="font-family: arial;">November
29, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal" style="mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, First Department<o:p></o:p></span></span></u></b></p>
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<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><span lang="EN-CA"> </span><o:p></o:p></b></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Family Court no longer has “exclusive, continuing
jurisdiction” over an enforcement<span style="mso-spacerun: yes;"> </span>matter
under the UCCJEA<span style="mso-spacerun: yes;"> </span>Domestic Relations Law
§ 75 et seq. where neither the children nor their parents presently lived in
this State. A “significant connection” hearing is not required where Family
Court properly found that it lacked exclusive, continuing custody jurisdiction</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11.0pt;">In Matter of Joshua A v. Shaquanda T, --- N.Y.S.3d
----, 2023 WL 8194305, 2023 N.Y. Slip Op. 06077 (1<sup>st</sup> Dept., 2023)
the Appellate Division affirmed an order which dismissed with prejudice and on
the ground of lack of jurisdiction, petitioner fathers’ petition for
enforcement of a visitation order. It found that Family Court no longer has
“exclusive, continuing jurisdiction” over this matter under the Uniform Child
Custody Jurisdiction and Enforcement Act, Domestic Relations Law § 75 et seq.
as neither the children nor their parents presently lived in this State
(Domestic Relations Law § 76–a[1][b]]). When the father filed the enforcement
petition, he was living in New Jersey, and the mother and children were living
in North Carolina.<span style="mso-spacerun: yes;"> </span>It<span style="mso-spacerun: yes;"> </span>rejected the father’s argument that a hearing
was required to determine whether the children retained a “significant
connection” to New York, since Family Court properly found that it lacked
exclusive, continuing custody jurisdiction based solely on its determination
that the parents and children did not presently reside in New York (Domestic
Relations Law § 76–a[1][b]). It rejected the father’s argument in the
alternative that, even if Family Court correctly found that it did not have
exclusive, continuing jurisdiction under Domestic Relations Law § 76–a(1), it
could have exercised discretionary jurisdiction under Domestic Relations Law §
76–a(2) if it found that it had initial child custody jurisdiction under
Domestic Relations Law § 76. Neither child and neither parent lived in New
York, and the father<span style="mso-spacerun: yes;"> </span>failed to make out
a prima facie showing that the children and either parent have a “significant
connection” to New York and that there is “substantial evidence<span style="mso-spacerun: yes;"> </span>. . .<span style="mso-spacerun: yes;">
</span>available in this state concerning the [children’s] care, protection,
training and personal relationships” (Domestic Relations Law § 76[1][a] and
[b]).<span style="mso-spacerun: yes;"> </span>The father also pointed out that
it appeared that no other court would have had original custody jurisdiction at
the time the father filed his enforcement petition (Domestic Relations Law §
76[1][d]). Had he sought to modify the existing custody or visitation orders,
this might have been a basis for Family Court to exercise jurisdiction.
However, the father’s petition sought only enforcement of the visitation order.
The plain language of the discretionary provision of Domestic Relations Law §
76–a(2) provides jurisdiction only for modification of this state’s custody
orders, and the father had not provided any authority for application of
Domestic Relations Law § 76–a(2) to requests for enforcement.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, Second Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Where father failed to comply with Family Court Act §
424–a court should have precluded him from offering evidence regarding his
financial ability to pay support, and should have determined the amount of
child support based on the needs of the child.</span><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="color: red;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11.0pt;">In Matter of Grant v Seraphin, --- N.Y.S.3d ----, 2023
WL 8102714, 2023 N.Y. Slip Op. 06044 (2d Dept.,2023) the mother filed a
petition seeking child support. At a hearing the mother made an application to
determine the father’s child support obligation based on the needs of the
child, as the father had failed to comply with required financial disclosure.
The Support Magistrate denied the application and allowed the father to present
evidence regarding his ability to pay support. The Support Magistrate, directed
the father to pay child support of $283 biweekly. Family Court denied the
mother’s objections to the order. The Appellate Division observed that<span style="mso-spacerun: yes;"> </span>Family Court Act § 424–a “mandates the
compulsory disclosure by both parties to a support proceeding of ‘their
respective financial states,’ through the provision of tax returns, pay stubs,
and sworn statements of net worth”. Where a respondent in a child support
proceeding fails, without good cause, to comply with the compulsory financial
disclosure mandated by Family Court Act § 424–a, ‘the court on its own motion
or on application shall grant the relief demanded in the petition or shall
order that, for purposes of the support proceeding, the respondent shall be
precluded from offering evidence as to [the] respondent’s financial ability to
pay support.<span style="mso-spacerun: yes;"> </span>Here, the father failed to
provide a sworn statement of net worth, a tax return, or a pay stub, and he did
not offer an explanation for his failure to do so. Since the father failed,
without good cause, to comply with the compulsory financial disclosure mandated
by Family Court Act § 424–a, the Family Court was required to either grant the
relief demanded in the petition or preclude the father from offering evidence
as to his financial ability to pay support. Under the circumstances of this
case, the court should have precluded the father from offering evidence
regarding his financial ability to pay support, and should have determined the
amount of child support based on the needs of the child, as requested by the
mother (see Family Ct Act §§ 413[1][k]; 424–a[b]) It remitted<span style="mso-spacerun: yes;"> </span>the matter to the Family Court, for a new
hearing and a new determination.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Supreme Court improvidently exercised its discretion
in denying the defendant’s motion for leave to amend her answer to change the
date of the parties’ marriage from the date of their civil marriage ceremony,
which occurred after the passage of the Marriage Equality Act, to the date of
the parties’ religious marriage ceremony, which occurred six years prior to the
passage of the Marriage Equality Act</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In
Mackoff v Bluemke-Mackoff, --- N.Y.S.3d ----, 2023 WL 7561813, 2023 N.Y. Slip
Op. 05721 (2d Dept.,2023) the issue presented on this appeal, apparently an
issue of first impression for an appellate court in this State, was whether the
Supreme Court improvidently exercised its discretion in denying the defendant’s
motion for leave to amend her answer to change the date of the parties’
marriage from the date of their civil marriage ceremony, which occurred after
the passage of the Marriage Equality Act, to the date of the parties’ religious
marriage ceremony, which occurred six years prior to the passage of the
Marriage Equality Act. On July 21, 2005, in New York City, the plaintiff, Robin
Mackoff, and the defendant, Linda Bluemke–Mackoff, participated in a
traditional Jewish marriage ceremony that was performed and solemnized by a
rabbi. The parties did not obtain a marriage license for this ceremony since,
at the time, New York State did not offer marriage licenses to same-sex couples
or recognize same-sex marriages. After this ceremony, the parties continued
living together and, according to the defendant, held themselves out as
spouses. In June 2011, New York State enacted the Marriage Equality Act
(hereinafter the MEA), which authorized same-sex couples to enter into civil
marriages in New York State. On July 28, 2011, four days after the MEA went
into effect, the parties obtained a New York State marriage license and were
married in a civil ceremony. On January 23, 2019, the plaintiff commenced this
action for a divorce . In her complaint, the plaintiff claimed that the parties
were married on July 28, 2011. On May 15, 2019, the defendant filed an answer,
which did not refute the July 28, 2011 marriage date. The defendant was
subsequently awarded certain pendente lite relief, including temporary spousal
maintenance. On December 10, 2020, the defendant moved for leave to amend her
answer to reflect that the parties were married on July 21, 2005, instead of
July 28, 2011. The plaintiff opposed the motion. Supreme Court denied the
defendant’s motion, determining that the amendment would be prejudicial to the
plaintiff in light of the amount of time that had elapsed and the pendente lite
relief previously granted. The court also determined that the amendment lacked
merit because the MEA did not confer validity to a same-sex marriage conducted
prior to its enactment. The Appellate Division reversed. It held that because
the request for leave to amend her answer was not prejudicial to the plaintiff,
palpably insufficient, or patently devoid of merit, her motion for such relief
should have been granted. While the Domestic Relations Law deems it necessary
for all persons intending to be married to obtain a marriage license, a
marriage is not void for the failure to obtain a marriage license if the
marriage is solemnized. The Court pointed out that at this stage in the
litigation, we are tasked only with determining whether the defendant should be
permitted to amend her answer to make the claim that the date of the parties’
marriage was July 21, 2005, not July 28, 2011. In the absence of prejudice or
surprise to the opposing party, a motion for leave to amend the [pleadings]
pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment
is ‘palpably insufficient’ to state a cause of action or is patently devoid of
merit”. It found that the defendant’s proposed amendment was neither palpably
insufficient nor patently devoid of merit. Contrary to the determination of the
Supreme Court, the plaintiff failed to establish that the defendant’s proposed
amendment was prejudicial to her in such a way that the defendant’s motion for
leave to amend her answer should be denied. Neither the length of time between
the defendant’s original answer and her motion for leave to amend, nor the fact
that the amendment may affect the plaintiff’s maintenance and equitable
distribution obligations, were sufficient to establish prejudice to the
plaintiff (see R & G Brenner Income Tax Consultants v. Gilmartin, 166
A.D.3d at 687, 89 N.Y.S.3d 85).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">The burden of repaying marital debt should be equally
shared by the parties, in the absence of countervailing factors, and any such
liability should be distributed in accordance with general equitable
distribution principles and factors</span><span style="font-size: 11.0pt;">.</span><span style="font-size: 11pt;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Ilyasov v Ilyas, --- N.Y.S.3d ----, 2023 WL 7561961
(Mem), 2023 N.Y. Slip Op. 05717 (2d Dept.,2023) the parties were married in
1987. The defendant left the marital residence in 2010. The plaintiff commenced
the action for a divorce in September 2015, the parties had one minor child.
The parties stipulated that the only remaining issues were child support and
equitable distribution with respect to the defendant’s nursing degree and
licenses, the defendant’s pensions, and the marital residence. The Appellate
Division held that<span style="mso-spacerun: yes;"> </span>Supreme Court
providently exercised its discretion in declining to make any equitable
distribution award to the plaintiff relating to the defendant’s nursing degrees
and licenses. The court’s determination that the plaintiff did not
substantially contribute to the defendant’s acquisition of her nursing degrees
Supreme Court directed that the plaintiff “buy out the defendant’s share of the
marital residence for $330,000,” or, if sold, each party shall receive 50% of
the proceeds of the sale, but adjustments for any outstanding mortgage or
unpaid taxes associated would be deducted from the plaintiff’s share of the
proceeds With respect to the marital residence, the Supreme Court providently
exercised its discretion in determining that the plaintiff is responsible for
paying unpaid property taxes. The burden of repaying marital debt should be
equally shared by the parties, in the absence of countervailing factors, and
any such liability should be distributed in accordance with general equitable
distribution principles and factors. Here, contrary to the court’s
determination, the parties applied for a home equity line of credit in January
2004, and, as of October 1, 2010, prior to the commencement of this action,
there was $212,125.73 outstanding on the credit line. Under the circumstances,
the burden of repaying this marital debt, incurred during the marriage, should
be equally shared by the parties. It modified the judgment to reflect that the
parties were equally responsible for the $212,125.73 outstanding balance on the
home equity credit line as of October 1, 2010. Supreme Court improvidently
exercised its discretion in awarding the plaintiff only 30% of the marital
portion of the defendant’s pension with 1199 SEIU Health Care Employees Pension
Fund based on its unelaborated finding that the defendant left the marital
residence “due to the abusive environment created by the plaintiff.” The
general rule in New York is that marital fault should not be considered in
determining equitable distribution. Egregious marital fault may be considered
as a factor only in rare cases involving egregious and extraordinary conduct
which shocks the conscience of the court This record did not support a finding
of marital misconduct “so egregious or uncivilized as to bespeak of a blatant
disregard of the marital relationship”.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">It is<span style="mso-spacerun: yes;"> </span>within
the sound discretion of the court to accept a belated order or judgment for
settlement. A court should not deem an action or judgment abandoned where the
result ‘would not bring the repose to court proceedings that 22 NYCRR 202.48
was designed to effectuate, and would waste judicial resources.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Gargano v Gargano, --- N.Y.S.3d ----, 2023 WL 7560958,
2023 N.Y. Slip Op. 05715(2d Dept.,2023) the parties were married and, in 2011,
the plaintiff commenced this action for a divorce. In a decision after trial
dated June 7, 2018, the Supreme Court, directed the parties to settle judgment
on notice within 60 days from the date of the decision. Thereafter, the parties
made various posttrial motions, inter alia, to vacate and/or modify the
decision after trial and to reopen the trial. In an August 2019 order, the
court decided those motions and directed the parties to settle the judgment of
divorce on notice within 30 days thereof. The parties failed to timely settle
the judgment of divorce and, on March 2, 2020, the court, on its own motion,
ordered that the parties “shall file the judgment roll on notice on or before
March 31, 2020” and that, upon their failure to do so, the action “shall be
deemed abandoned pursuant to 22 NYCRR § 202.48(b).” The March 31, 2020 deadline
was tolled pursuant to Executive Orders issued in response to the public health
crisis occasioned by the COVID–19 pandemic (see Executive Order [A. Cuomo] No.
202.8 [9 NYCRR 8.202.8]). On March 2, 2021, the defendant submitted the
judgment roll. The plaintiff moved pursuant to 22 NYCRR 202.48 to dismiss the
complaint as abandoned based upon the defendant’s delay in submitting the
judgment. Supreme Court, inter alia, denied the plaintiff’s motion. On December
2, 2021, the court issued a judgment of divorce. The Appellate Division
affirmed. It held that it is<span style="mso-spacerun: yes;"> </span>within the
sound discretion of the court to accept a belated order or judgment for
settlement. Moreover, a court should not deem an action or judgment abandoned
where the result ‘would not bring the repose to court proceedings that 22 NYCRR
202.48 was designed to effectuate, and would waste judicial resources’. Supreme
Court providently exercised its discretion in denying her motion pursuant to 22
NYCRR 202.48 to dismiss the complaint as abandoned, as the defendant
demonstrated good cause for the delay in submitting the judgment roll and
“since doing so brought finality to the proceedings and preserved judicial
resources.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Family Court erred in making a final custody
determination without completing the hearing on the father’s petition and the
mother’s cross-petition where neither the father nor the mother rested their
respective case or gave a closing argument</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Janvier v Santana-Jackson, --- N.Y.S.3d
----, 2023 WL 7562435, 2023 N.Y. Slip Op. 05732<span style="mso-spacerun: yes;">
</span>(2d Dept.,2023)<span style="mso-spacerun: yes;"> </span>a hearing on the
father’s relocation petition and the mother’s cross-petition for an award of
sole physical custody recommenced in May 2019. The Family Court admitted into
evidence copies of forensic reports; however, due to multiple factors,
including the global COVID–19 pandemic and the court’s scheduling issues, the
hearing did not continue for many months. In an interim order dated August 28,
2019, the court, while acknowledging that “many facts [were] still in dispute,”
that “the trial [was] still ongoing,” and that “it [was] pre-mature for [the]
Court to make any findings and determinations,” continued the award of sole
physical custody of the child to the father and, essentially, permitted the
father to enroll the child in preschool in New Jersey. After a virtual
conference on April 21, 2021, the court ordered a second updated forensic
evaluation. By order dated September 15, 2021, before completion of the second
updated forensic evaluation, and although neither the father nor the mother
rested their respective case or gave a closing argument, the court, inter alia,
granted the father’s relocation petition and denied the mother’s cross-petition
for an award of sole physical custody of the child. The Appellate Division held
that Family Court erred in making a final custody determination without
completing the hearing on the father’s petition and the mother’s cross-petition
in order to determine what arrangement was in the best interests of the child.
It remitted for the completion of the hearing and new determinations.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Family Court improvidently exercised its discretion
in granting the fathers sanctions motion<span style="mso-spacerun: yes;">
</span>without affording the mother a reasonable opportunity to be heard,
where<span style="mso-spacerun: yes;"> </span>the court never set a briefing
schedule for the sanctions motion, and in effect, denied the mother’s new
counsel’s request to file opposition papers thereto. </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Hunte v Jones,<span style="mso-spacerun: yes;"> </span>--- N.Y.S.3d ----, 2023 WL 7562855, 2023 N.Y.
Slip Op. 05731 (2d Dept.,2023) in December 2020, the mother filed a petition in
the Family Court<span style="mso-spacerun: yes;"> </span>to modify the parties’
custody order to award her sole legal custody of the child and to grant her
permission to relocate with the child to Florida. In February 2021, the father
filed a petition to modify the prior custody orders and requesting, inter alia,
additional parental access during the week. By order to show cause dated
October 4, 2021, the father moved pursuant to 22 NYCRR 130–1.1 for the
imposition of sanctions, costs, and reasonable attorneys’ fees . The father
contended, inter alia, that the mother engaged in frivolous conduct by
relocating to Florida with the child without prior court approval, and by
commencing a separate custody proceeding in Florida. The Family Court signed
the order to show cause, setting a return date of November 22, 2021, for the
sanctions motion, but not setting a briefing schedule. On April 4, 2022, while
the sanctions motion remained pending and undecided, the mother moved for the
Family Court Judge to recuse from the proceedings. During proceedings on April
18, 2022, the Family Court indicated that the mother’s prior assigned counsel
was being relieved of his assignment, and acknowledged that the mother had new
assigned counsel representing her. The court then stated that it intended to
grant the mother’s motion for recusal. The court also, in effect, denied the
mother’s new counsel’s request to file opposition to the sanctions motion. In
an order dated April 27, 2022, the Family Court granted that branch of the
sanctions motion which was for an award of reasonable attorneys’ fees for
frivolous conduct, and directed the mother to pay attorneys’ fees in the sum of
$1,250 to the father. In a separate order the court granted the mother’s motion
for recusal. The Appellate Division observed that pursuant to 22 NYCRR
130–1.1(d), “[a]n award of costs or the imposition of sanctions may be made
either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own
initiative, after a reasonable opportunity to be heard. The form of the hearing
shall depend upon the nature of the conduct and the circumstances of the case.”
The Appellate Division agreed with the mother that the Family Court
improvidently exercised its discretion in awarding the father reasonable
attorneys’ fees without affording her a reasonable opportunity to be heard.
Notably, the court never set a briefing schedule for the sanctions motion, and
the court, in effect, denied the mother’s new counsel’s request to file
opposition papers thereto. Under these circumstances, the mother did not
receive a “reasonable opportunity to be heard” on the allegations in the
sanctions motion. Additionally, the Family Court improvidently exercised its
discretion by deciding the sanctions motion after indicating to the parties
during the April 18, 2022 court appearance that it intended to grant the
mother’s motion for recusal.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Under the circumstances of this case, the court
should not have denied the mother’s objections due to her failure to comply
with the proof of service requirement of FCA<span style="mso-spacerun: yes;">
</span>§ 439(e), where she<span style="mso-spacerun: yes;"> </span>timely filed
her objections and timely served a copy thereof upon the father but<span style="mso-spacerun: yes;"> </span>filed proof of two weeks later and the father
did not raise the proof of service issue.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Benzaquen v Abraham, ---
N.Y.S.3d ----, 2023 WL 7172458, 2023 N.Y. Slip Op. 05498 (2d Dept.,2023) by
order of disposition dated February 15, 2022, made after a hearing, a Support
Magistrate, inter alia, declined to award the mother the full amount of arrears
sought by her. The Family Court mailed the order of disposition to the parties
on February 24, 2022. On March 25, 2022, the mother filed objections with the
court. On April 5, 2022, the father submitted a rebuttal to the mother’s objections.
By order dated August 31, 2022, the court denied the mother’s objections based
on her failure to timely file proof of service pursuant to Family Court Act §
439(e). The Appellate Division held that under the particular circumstances of
this case, the court should not have denied the mother’s objections due to her
failure to comply with the proof of service requirement of Family Court Act §
439(e), and instead should have considered the merits of her objections. Family
Court Act § 439(e) provides, in pertinent part, that a party filing objections
shall serve a copy of such objections upon the opposing party, and that proof
of service upon the opposing party shall be filed with the court at the time of
filing of objections. Here, the Family Court improperly denied the mother’s
objections on the ground that she failed to timely file proof of service. The
mother timely filed her objections and timely served a copy thereof upon the
father in compliance with Family Court Act § 439(e). She failed to file proof
of service at the time of filing of the objections, as required by the statute,
but nonetheless filed such proof two weeks later. Notably, the father submitted
a rebuttal and did not raise the proof of service issue.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, Third Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Supreme Court providently exercised its discretion in
awarding the plaintiff 100% of the parties’ interest in the marital residence,
where the defendant was unable to contribute financially to the mortgage loan
or to the support of the parties’ child due to his long-term incarceration, and
where the plaintiff was also responsible for 100% of the parties’ marital debt</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Gigliotti v
Gigliotti, --- N.Y.S.3d ----, 2023 WL 8102597, 2023 N.Y. Slip Op. 06029 (2d
Dept., 2023) the<span style="mso-spacerun: yes;"> </span>parties were married on
August 20, 2011, and had one minor child. The defendant was incarcerated since
2016, and was not scheduled for release until 2033. The plaintiff commenced
this action in or about January 2018. A nonjury trial was scheduled on February
28, 2020. The defendant’s attorney did not appear and did not properly request
an adjournment pursuant to the rules of the trial part. The defendant appeared
by phone. After the trial, the Supreme Court, inter alia, awarded the plaintiff
100% of the parties’ interest in the marital residence, the parties’ only
marital asset, and allocated 100% of the parties’ debt to the plaintiff. A
judgment of divorce, upon the decision, was entered on January 25, 2021. The
Appellate Division affirmed. It held that Supreme Court providently exercised
its discretion in denying the defendant’s application for an adjournment where
his counsel did not properly seek an adjournment pursuant to the trial part’s
rules and subsequently failed to appear at trial. It also held that Supreme
Court providently exercised its discretion in awarding the plaintiff 100% of
the parties’ interest in the marital residence, where the defendant was unable
to contribute financially to the mortgage loan or to the support of the
parties’ child due to his long-term incarceration, and where the plaintiff was
also responsible for 100% of the parties’ marital debt<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">When determining the child’s best interests, Family
Court must consider the effect of having committed a family offense when the
allegations are proven by a preponderance of the evidence.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of Jacklyn PP v Jonathan QQ, 2023 WL 8105077 (3d Dept.,2023) the
Appellate Division found that a fair preponderance of the evidence supported
the conclusion that the father committed the family offenses of stalking in the
third degree and fourth degree. It rejected the fathers contention that<span style="mso-spacerun: yes;"> </span>granting the mother sole custody was not in
the child’s best interests and that Family Court erred in considering the
father’s family offenses in determining custody. Family Court properly
considered the various factors in its best interest analysis, giving greatest
emphasis to the father having committed family offenses and finding that
presently the parties could not communicate. Contrary to the father’s
contention, when determining the child’s best interests, Family Court must
consider the effect of having committed a family offense when the allegations
are proven by a preponderance of the evidence.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Although the mother would have been unable to take an
appeal from the orders entered upon her default, a defaulting party is still
free to seek review of the proceedings on a contested inquest</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of Daniel RR v Heather RR,<span style="mso-spacerun: yes;"> </span>2023
WL 8104865 (3d Dept.,2023) the maternal grandfather of the children, commenced
proceedings seeking, in relevant part, visitation with them. Upon the mother’s
default, Family Court issued two orders in March 2020 that awarded the
grandfather visitation. After vacating the default and holding an inquest,<span style="mso-spacerun: yes;"> </span>the Family Court granted the grandfather
visitation. The Appellate Division held, inter alia, that although the mother
would have been unable to take an appeal from the March 2020 orders entered
upon her default, a defaulting party is still free to seek “review ... of the
proceedings on a contested inquest” (James v. Powell, 19 N.Y.2d 249, 256 n 3,
279 N.Y.S.2d 10, 225 N.E.2d 741 [1967]; see Matter of DiNunzio v. Zylinski, 175
A.D.3d 1079, 1080, 108 N.Y.S.3d 634 [4th Dept. 2019]). Counsel for the mother
appeared at the inquest that led to the appealed-from orders, offered no
objection to it occurring, and actively participated in it by cross-examining
the grandfather. Family Court, moreover, did not hold the mother to have
defaulted in appearance at the inquest. In view of those facts, it concluded
that the mother did contest the inquest and that she may appeal from the
ensuing orders.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Where Family Courts plethora of errors curtailed
significant testimony that would have been relevant and denied the father a
full and fair opportunity to present evidence, the<span style="mso-spacerun: yes;"> </span>custody order on appeal was reversed<span style="mso-spacerun: yes;"> </span>and remitted for a new fact-finding hearing
before a different judge.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In
Matter of Shayne FF., v. Julie GG, --- N.Y.S.3d ----, 2023 WL 7750133, 2023
N.Y. Slip Op. 05767 (3d Dept.,2023) the Appellate Division reversed an order of
the Family Court which granted respondent’s motion to dismiss petitioner’s
applications,<span style="mso-spacerun: yes;"> </span>to modify a prior order of
custody and visitation. The Court observed that although not specifically
raised by the parties, Family Court, seemingly driven by its overly narrow
interpretation of the father’s petition and amended petition, committed a
plethora of errors which curtailed significant testimony that would have been
relevant and material to the father’s claim that a change in circumstances had
occurred since entry of the 2012 order and that the best interests of the child
would be served by modifying said order. Among other things, Family Court
heavily limited testimony about the increased driving time and prevented any
inquiry as to safety concerns that may have weighed against expanding the
father’s parenting time, as to the child’s relationship with either parent,
their significant others or their support systems, as to what parenting
schedule the father sought, as to the mother’s refusal to allow the father
holiday time and as to the father’s prior attempts at addressing that issue.
Further, the order on appeal notes that the father “rejected an in court offer
that was acceptable to [the mother] and to the [attorney for the child]”;
Family Court was reminded that, except in very limited circumstances not
applicable here, it cannot consider settlement negotiations among parties in
its order (see CPLR 4547). This testimony would have been of particular
importance here, where the prior order was premised on the parties’ consent
rather than on a prior judicial determination, and such evidence could “give the
court a view of the totality of the circumstances and family dynamics,
including proof that relates to either party’s fitness as a parent,” and aid
the court in its best interests analysis. As these errors compounded and denied
the father a full and fair opportunity to present evidence, it reversed the
order on appeal and remitted this matter for a new fact-finding hearing before
a different judge.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Where<span style="mso-spacerun: yes;"> </span>the
parental rights of both biological parents have been terminated, adoption is
the sole and exclusive means to gain care and custody of the child</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Mirely M., v Wilbert L.,
--- N.Y.S.3d ----, 2023 WL 7749859, 2023 N.Y. Slip Op. 05772 (3d
Dept.,2023)<span style="mso-spacerun: yes;"> </span>the Appellate Division held
that where, as here, the parental rights of both biological parents have been
terminated, adoption is the sole and exclusive means to gain care and custody
of the child” and courts are “without authority to entertain custody
proceedings commenced by a member of the child’s extended family. Here, the
stepmother sought only custody of the child; she has not sought adoption. The
appeal from denial of the stepmother’s custody petition was moot. Should she
still seek care and custody of the child, the stepmother’s sole recourse was to
file for adoption.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Divison, Fourth Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">A mutual mistake exists where the parties have
reached an oral agreement and, unknown to either, the signed writing does not
express that agreement. Sufficiency of complaint sustained.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Baird v Baird, --- N.Y.S.3d ----, 2023 WL 7982187,
2023 N.Y. Slip Op. 05824 (4<sup>th</sup> Dept., 2023) the Appellate Division
affirmed an order which denied the defendants motion to dismiss the complaint
pursuant to CPLR 3211 and for summary judgment dismissing the complaint
pursuant to CPLR 3212. Plaintiff commenced this postjudgment matrimonial
proceeding seeking to reform the parties’ Property Settlement and Parenting
Agreement (agreement), which was incorporated but not merged into their
judgment of divorce. Plaintiff asserted that the agreement should be reformed
to include an equitable distribution of her marital interest in defendant’s
pension, which she alleged was omitted from the agreement due to mutual mistake
or fraud.<span style="mso-spacerun: yes;"> </span>The Appellate Division
rejected defendants argument that the complaint failed to sufficiently plead a
cause of action for reformation based on fraud or mutual mistake . It observed
that a claim for reformation of a written agreement must be grounded upon
either mutual mistake or fraudulently induced unilateral mistake’. “A mutual
mistake exists where the parties have reached an oral agreement and, unknown to
either, the signed writing does not express that agreement”. “When an error is
not in the agreement itself, but in the instrument that embodies the agreement,
equity will interfere to compel the parties to execute the agreement which they
have actually made, rather than enforce the instrument in its mistaken form”.
It concluded that the complaint sufficiently stated a cause of action for
reformation of the agreement based on mutual mistake by alleging that the parties
agreed to “the distribution of all assets owned jointly or in the individual
name of either party” and then omitted the distribution of plaintiff’s marital
interest in a defined benefit pension that defendant was entitled to because
neither party was aware of defendant’s entitlement to those benefits at the
time the agreement was negotiated and executed. Those allegations contained
sufficient detail to satisfy the particularity requirement of CPLR 3016 (b). It
also concluded that the complaint sufficiently states a cause of action for
reformation of the agreement based on fraud. “[A] fraud cause of action must
allege that the defendant: (1) made a representation to a material fact; (2)
the representation was false; (3) the defendant intended to deceive the
plaintiff; (4) the plaintiff believed and justifiably relied on the statement
and in accordance with the statement engaged in a certain course of conduct;
and (5) as a result of the reliance, the plaintiff sustained damages”. Here,
the complaint alleges that defendant represented during the divorce
negotiations that he did not have a defined benefit plan due to his employer’s
bankruptcy; that defendant’s representation was false; that defendant intended
to deceive plaintiff; that plaintiff justifiably relied on defendant’s
misrepresentation in negotiating the agreement; and that, as a result of her
reliance, plaintiff did not receive her marital share of defendant’s pension.
Those allegations “sufficiently pleaded the elements of fraud ... and supplied
sufficient detail to satisfy the specific pleading requirements of CPLR 3016
(b)” <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Where Family Court Act articles 6 and 10 proceedings
are pending at the same time, the court may jointly hear the hearing on the
custody and visitation petition under article 6 and the dispositional hearing
on the petition under article 10 provided, the court must determine the custody
and visitation petition in accordance with the terms of article 6.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Lillyana B., --- N.Y.S.3d ----, 2023 WL
7982309 (4<sup>th</sup> Dept., 2023) the Appellate Division held that where as
here, Family Court Act articles 6 and 10 proceedings are pending at the same
time, the court “may jointly hear the hearing on the custody and visitation
petition under [article 6] and the dispositional hearing on the petition under
article [10] ... ; provided, however, the court must determine the custody and
visitation petition in accordance with the terms of ... article [6]” (Family Ct
Act § 651 [c-1]; see § 1055-b [a-1]; Matter of Nevaeh MM. [Sheri MM.—Charles
MM.], 158 AD3d 1001, 1002 [4th Dept 2018]). In an article 6 custody proceeding,
it is well settled that, as between a parent and a nonparent, the parent has a
superior right to custody that cannot be denied absent a finding that the
parent has relinquished that right because of “surrender, abandonment,
unfitness, persisting neglect or other extraordinary circumstances”. If
extraordinary circumstances are established, then the court may make an award
of custody based on the best interests of the child (see Bennett, 40 NY2d at
548). It agreed with the court that extraordinary circumstances existed here
based on the father’s abandonment of the child.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">In a contempt proceeding </span><span style="font-size: 11pt; text-decoration: none;">h</span><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">owever misguided and erroneous the father believed the court’s order to
have been he was not free to disregard it</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Pritty-Pitcher v. Hargis., --- N.Y.S.3d
----, 2023 WL 7982342, 2023 N.Y. Slip Op. 05886 (4<sup>th</sup> Dept.,2023) the
Appellate Division held that however misguided and erroneous the father
believed the court’s order to have been he was not free to disregard it and
decide for himself the manner in which to proceed. Inasmuch as the father did not
contest the jurisdictional validity of the prior order and did not dispute that
he violated the order by refusing to abide by the provisions granting
visitation to petitioner, it rejected his contention that the court erred in
finding him in contempt.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Appellate Divison treats decision as order for
purpose of taking an appeal where it “meets the essential requirements of an
order”</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In
Matter of Geer, v<span style="mso-spacerun: yes;"> </span>Collazo , --- N.Y.S.3d
----, 2023 WL 7982541 (Mem), 2023 N.Y. Slip Op. 05904 (4<sup>th</sup>
Dept.,2023) the father appealed from a decision that denied his petition
seeking, inter alia, visitation with the child. The Appellate Division held
that<span style="mso-spacerun: yes;"> </span>although no appeal lies from a mere
decision, the paper appealed from “meets the essential requirements of an
order” (Nicol v Nicol, 179 AD3d 1472, 1473 [4th Dept 2020]) inasmuch as it was
filed “with the Court Clerk and ... [it] resolved the [proceeding] and advised
the father that he had a right to appeal” (Matter of Louka v Shehatou, 67 AD3d
1476, 1476 [4th Dept 2009]). It therefore treated it as an order.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><u><span style="font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Family Court<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Under Domestic Relations Law § 76-a, a court cannot
have exclusive continuing jurisdiction if it never had initial child custody
jurisdiction in the first instance</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of<span style="mso-spacerun: yes;"> </span>E.P.,v. B.S., --- N.Y.S.3d
----, 2023 WL 6819194, 2023 N.Y. Slip Op. 23318 Family Court, (2023) Family
Court granted the fathers motion for an order dismissing the petitions on the
grounds that New York lacked initial child custody jurisdiction because New
York was not the “home state” of the children within the meaning of Domestic
Relations Law § 75-a (7) because none of the children were living in New York
for the six-month period immediately before the filing of the petitions in
November 2022. The parties acknowledged that previous custody petitions had
been filed in New York in 2017, that New York had issued temporary orders
regarding custody and visitation in those proceedings, and that the Family
Court in New York had a long history addressing the custody dispute between the
mother and father. However, all the petitions filed in 2017 were dismissed in
November 2022. When the 2017 proceedings were commenced, none of the children
resided in New York. For a period of more than six months prior to the filing
of the 2017 petitions, the children C. and A. had resided in Connecticut with
the mother. According to the father, only the child M. lived in New York within
the six-month period before the filing of the 2017 petitions. Indeed, in opposition
to father’s motion, the mother avers that all three children resided outside of
New York “for about 7 years” and that when the father initiated the 2017
proceedings “the children already lived outside the state” (Affirmation in
Opposition, p. 7). Even though none of the children resided in New York at the
time of commencement of the 2017 proceedings, the mother argues that New York
was the children’s “home state” simply because New York had issued initial
custody orders in those proceedings. Her argument relied upon Domestic
Relations Law § 76-a entitled “exclusive continuing jurisdiction” and case law
holding that “[a] New York court that has previously made a child custody
determination has exclusive, continuing jurisdiction. The mother’s argument was
flawed and circular because Domestic Relations Law § 76-a, and the case law
interpreting it, presuppose that the New York court had initial child custody
jurisdiction under Domestic Relations Law § 76 when it issued the initial
custody order. In other words, under Domestic Relations Law § 76-a, a court
cannot have exclusive continuing jurisdiction if it never had initial child
custody jurisdiction in the first instance. Moreover, New York’s exercise of
initial child custody jurisdiction under Domestic Relations Law § 76 in an
earlier proceeding that was subsequently dismissed does not necessarily confer
jurisdiction to a later proceeding.. Here, the affidavits of the mother and the
father indicate that none of the children resided in New York at the time of
commencement of the 2017 proceedings.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1><span style="font-family: arial;"><span style="font-size: 11.0pt; line-height: 141%;">November 15, 2023</span><span style="font-size: 11pt; line-height: 141%;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Where the Referee stated on the record during the
hearing that petitioner could only present extraordinary circumstances evidence
after she established that she had standing this was an error of law, as extraordinary
circumstances is one of several bases for standing to seek custody and
visitation.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;color:red;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;color:red;mso-ansi-language:
EN-CA'><span style='mso-element:field-end'></span></span><![endif]--><span style="color: red;"><span style="font-family: arial;"><b><o:p></o:p></b></span></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Lashawn K., v. Administration for Childrens
Services et al., --- N.Y.S.3d ----, 2023 WL 7391728, 2023 N.Y. Slip Op. 05662
(1<sup>st</sup> Dept.,2023) the Appellate Division observed that as a
prerequisite to seeking custody or visitation with a child, a party must
establish standing. The party may establish standing (1) as a parent pursuant
to Domestic Relations Law § 70; (2) as a sibling for visitation pursuant to
Domestic Relations Law § 71; (3) as a grandparent for visitation or custody
pursuant to Domestic Relations Law § 72; or (4) by showing extraordinary
circumstances pursuant to Matter of Bennett v. Jeffreys, 40 N.Y.2d 543). In Matter
of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488
(2016), the Court of Appeals expanded the definition of the word “parent” to
include a nonbiological, nonadoptive parent who has demonstrated by clear and
convincing evidence that “the parties agreed to conceive a child and to raise
the child together”. Here,<span style="mso-spacerun: yes;"> </span>Family Court
determined after a hearing that petitioner failed to establish the existence of
an enforceable pre-conception agreement to conceive and co-parent the subject
child with the child’s biological mother. The child’s biological mother
unexpectedly died only months after the child was born and before she and
petitioner were to be married. The Appellate Division held that Family Court
erred in dismissing petitioner’s custody and visitation petitions without
permitting petitioner the opportunity to present evidence supporting her
argument that she had standing based on extraordinary circumstances. The
Referee stated on the record during the hearing that she agreed with the
biological father’s position that petitioner could only present extraordinary
circumstances evidence after she established that she had standing. This is an
error of law, as extraordinary circumstances is one of several bases for
standing to seek custody and visitation. Extraordinary circumstances may be
found where there has been “a judicial finding of surrender, abandonment,
unfitness, persistent neglect, unfortunate or involuntary extended disruption
of custody, or other equivalent but rare extraordinary circumstance which would
drastically affect the welfare of the child” It reversed and remand the case to
Family Court for a further hearing on whether petitioner can establish standing
based on extraordinary circumstances.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Contention that no portion of accidental disability
pension represented deferred compensation related to his length of service is
without merit</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-tab-count: 1;"> </span>In Fanning v Fanning, ---
N.Y.S.3d ----, 2023 WL 7362771 (Mem), 2023 N.Y. Slip Op. 05587 (2d Dept.,2023)
the parties were married in 1995. In 2008, the plaintiff retired as a police
officer for the Garden City Police Department with an accidental disability
pension. They were divorced by judgment entered September 20, 2017, which
incorporated, but did not merge, their stipulation of settlement. The
stipulation of settlement provided for a 50% distribution to the defendant of
that portion of the value of the plaintiff’s accidental disability pension
which was “based upon the length of service.” Thereafter, the Supreme Court issued
a qualified domestic relations order ( QDRO), drafted by the plaintiff’s former
counsel and consented to by the parties, which provided for the defendant’s
share of the pension to be calculated based on a fraction of the plaintiff’s
hypothetical retirement benefits, which he would have received had he not been
injured. In January 2021, the plaintiff moved to vacate the QDRO, contending
that its terms conflicted with the terms of the stipulation of settlement with
respect to the defendant’s share, if any, of his pension benefits. Supreme
Court, inter alia, denied the plaintiff’s motion. The<span style="mso-spacerun: yes;"> </span>Appellate Division affirmed an order which
denied the plaintiff’s motion. It noted that to the extent that a disability
pension constitutes compensation for personal injuries, that compensation is
separate property which is not subject to equitable distribution. A domestic
relations order entered pursuant to a stipulation of settlement can convey only
those rights to which the parties stipulated as a basis for the judgment. Where
a QDRO is inconsistent with the provisions of a stipulation or judgment of
divorce, courts possess the authority to amend the QDRO to accurately reflect
the provisions of the stipulation pertaining to the pension benefits. Here, the
calculation of the defendant’s share of the plaintiff’s disability pension
benefit, as set forth in the QDRO, was consistent with the terms of the
stipulation of settlement. The plaintiff’s apparent contention that no portion
of his accidental disability pension represented deferred compensation related
to his length of service was without merit (see Miszko v. Miszko, 163 A.D.3d
1204, 1206, 81 N.Y.S.3d 617; Peek v. Peek, 301 A.D.2d 201, 204, 751 N.Y.S.2d
124; Palazzolo v. Palazzolo, 242 A.D.2d at 690, 663 N.Y.S.2d 58). Accordingly,
the Supreme Court properly denied the plaintiff’s motion<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Generally, the court’s custody determination should
be made only after a<span style="mso-spacerun: yes;"> </span>full and plenary
hearing and inquiry, or, where a party failed to appear, after an inquest.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Otero v Walker, --- N.Y.S.3d ----, 2023
WL 7363407 (Second Dept.,2023) in 2017 the parties were awarded joint legal
custody of their child, with residential custody awarded to the mother and
parental access to the father at such times as agreed between the parties. In
April 2021, the mother commenced a proceeding to modify the prior order to
award her sole legal and residential custody of the child. On June 17, 2022,
the father failed to appear for a hearing, and his attorney made an application
to set the matter down for an inquest on the mother’s petition. The Family
Court denied the application, and granted the mother’s petition upon the
father’s default. The Appellate Division held that a custody determination,
whether made upon the default of a party or not, must always have a sound and
substantial basis in the record. Generally, the court’s determination should be
made only after a full and plenary hearing and inquiry, or, where a party
failed to appear, after an inquest. Here, the Family Court granted the mother’s
petition to upon the father’s default, without receiving any testimony or other
evidence, despite the fact that the father’s attorney proffered a reasonable
explanation for the father’s absence and that the father did not have a history
of missing court dates Under the circumstances, the court improvidently
exercised its discretion. It, inter alia, reversed the order, vacated the
determination granting the mother’s petition, and remitted the matter to the
Family Court for an inquest and a new determination of the mother’s petition.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;">Pursuant to FCA 1046(a)(ii) the petitioner<span style="mso-spacerun: yes;"> </span>makes out<span style="mso-spacerun: yes;">
</span>prima facie case of child abuse or neglect by demonstrating that (1) an
injury occurred to a child which would ordinarily not occur absent an act or
omission of the respondents and (2) that the respondents were the caretakers of
the child at the time the injury occurred</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of J.B.
S., --- N.Y.S.3d ----, 2023 WL 6529048, 2023 N.Y. Slip Op. 23303 Family Court,
2023) the neglect petition against J.S, the respondent father alleged RF
neglected the subject children in that the child J.b. S. tested positive for
fentanyl and was hospitalized while in the care of respondent father . The
attorney for the children did not support a finding of neglect. Family court
observed that Courts have consistently held that positive toxicology in
children, combined with other factors in the record are consistent to sustain a
finding of neglect.. The positive toxicology is often paired with a showing
that the child suffered harm, such as withdrawal or a hospital stay to recover
from the effects of the drug, which is sufficient to establish neglect against
the parent or caretaker. Furthermore, case law is clear that a finding of
neglect is appropriate when there is a failure to properly supervise by
unreasonably allowing harm to be inflicted upon a child.. Here, J.b. S. tested
positive for fentanyl and required hospitalization. Dr. N.R. testified about
the lethal consequences which fentanyl causes and the record was clear that
J.b. S. required lifesaving treatment to reverse the effects from the fentanyl
ingestion. This was a harm sufficient to sustain neglect under FCA 1012(f).
There must be a showing that this was caused by the failure of his parent or
person legally responsible to exercise a minimum degree of care. The Family
Court Act has incorporated the res ipsa loquitar definition into its definition
of child abuse and neglect. Pursuant to FCA 1046(a)(ii) the petitioner<span style="mso-spacerun: yes;"> </span>made a prima facie case of child abuse or
neglect by demonstrating that (1) an injury occurred to a child which would
ordinarily not occur absent an act or omission of the respondents and (2) that
the respondents were the caretakers of the child at the time the injury
occurred. In Re Philip M. 82 N.Y.2d 238, 604 N.Y.S.2d 40, 624 N.E.2d 168 (1993)
the Court did not relieve the Petitioner from meeting its burden of proof by a
preponderance of the evidence. However, “as in negligence cases tried on the
theory of res ipsa loquitor, once the petitioner puts forth a prima facie case,
“the burden of going forward shifts to respondents to rebut the evidence of
parental culpability.” The Court of Appeals specifically held that the
respondent could rest without rebutting the case and permit the court to decide
the case on the strength of petitioner’s evidence. However, if respondents<span style="mso-spacerun: yes;"> </span>rebut the prima facie case, they may do so by
1) establishing that the child was not in their care at the time of the
incident, 2) demonstrating that the injury could reasonably have occurred
accidentally, without the acts or omissions of the respondent or 3) countering
the evidence that the child had the condition which was the basis for the
finding of the injury. The Court in Philip M. upheld the finding and rejected
the respondent’s testimony which it held as “conjecture” and without an
explanation for how the injury occurred. The Court held that the parents failed
to prove that one of the children’s injuries had another source. The testimony
proffered by the respondents was implausible and the Court properly rejected
their explanation. The Court found that Petitioner<span style="mso-spacerun: yes;"> </span>established by a preponderance of the
evidence that the respondent was<span style="mso-spacerun: yes;"> </span>the
father of the children, that the child has injuries of such a nature as would
ordinarily not be sustained or exist except by reason of the acts or omissions
of the parent, and that RF was a caretaker for SC when the injury may have
occurred. Respondent father<span style="mso-spacerun: yes;"> </span>failed to
rebut the Petitioner’s presumption of neglect. Therefore, under FCA 1046(a)(ii)
and Matter of Philip M., the children were neglected children as defined in section
1012(f) of the Family Court Act.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1><span style="font-size: 11.0pt; line-height: 141%; text-decoration: none; text-underline: none;"><span style="font-family: arial;">November 8, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Courts have the power to limit a parent’s independent
access to a child’s medical, academic, and extracurricular records if it would
contravene the child’s best interests.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Robert S. v. Norma C., --- N.Y.S.3d ----, 2023 WL
6626898, 2023 N.Y. Slip Op. 05210(1<sup>st</sup> Dept.,2023) the Family Court
awarded the mother sole physical and legal custody of the child with
therapeutic supervised visits to the father, and granted the father independent
access to all school, medical, and extracurricular activity reports from the
child’s providers. The Appellate Divison modified, to the extent of deleting
the provision of the order granting the father independent access to all
school, medical, and extracurricular activity reports from the child’s
providers, and otherwise affirmed. It held that the courts have the power to
limit a parent’s independent access to a child’s medical, academic, and
extracurricular records if it would contravene the child’s best interests.
Under the facts of this case, it was not in the child’s best interests for his
father to have independent access to his records, as the father had only a
limited and sporadic relationship with the child, who adamantly opposed the
father’s access to the records.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">The term “paystub” is defined as “a record that is
given to an employee with each paycheck and that shows the amount of money
earned and the amount that was removed for taxes, insurance costs, etc.
Informal timesheets do not qualify as “paystubs<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Franklin v Franklin, --- N.Y.S.3d ----, 2023 WL
6394564, 2023 N.Y. Slip Op. 04925<span style="mso-spacerun: yes;"> </span>(1<sup>st</sup>
Dept.,2023) the parties’ stipulation of August 24, 2021, provided in pertinent
part that plaintiff will pay defendant $2,000 per month “as a contribution
towards [defendant’s] childcare expenses.” Plaintiff’s obligation to make the
payment is conditioned upon defendant being “employed by a nonrelative” and
upon her periodic furnishing to plaintiff of “paystub[s]” documenting such
employment. The stipulation required defendant to provide plaintiff with her
first paystub from a given employer, the first and last paystub of each
calendar year, and the paystub covering July 1 of each year.<span style="mso-spacerun: yes;"> </span>Defendant moved for an order directing
plaintiff to make a childcare payment based on her provision of timesheets
purporting to document childcare services that she performed for Matthew
Kleban. Given defendant’s averments that there was no written contract or other
formal documentation of the employment relationship between herself and Kleban,
and that Kleban did not provide her with paystubs, the court found that the
timesheets defendant had provided to plaintiff were the “functional equivalent”
of the “paystub[s]” required by the stipulation. The Appellate Division
reversed the order which granted defendant wife’s motion to compel plaintiff to
pay her $18,000 for childcare costs for the period of April to December 2022
and to pay $10,000 in legal fees. It held that a written agreement that is
complete, clear and unambiguous on its face must be enforced according to the
plain meaning of its terms. Both parties represented by counsel, entered into a
stipulation that expressly conditioned plaintiff’s obligation to make childcare
payments upon defendant’s production of “paystub[s]” to document her employment
by a nonrelative. The term “paystub” is defined as “a record that is given to
an employee with each paycheck and that shows the amount of money earned and
the amount that was removed for taxes, insurance costs, etc.”
(https://merriam-webster.com/dictionary/paystub); accord Black’s Law Dictionary
1364 [11th ed 2019]). Under this definition, and based upon the circumstances,
the informal timesheets produced by defendant plainly did<span style="mso-spacerun: yes;"> </span>not qualify as “paystubs.” The motion court
impermissibly changed the meaning of the parties’ agreement by adding or
excising terms under the guise of construction.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">A Settlement agreement no longer exists upon its
merger into a divorce decree and, therefore, contract principles did not apply
in an action for enforcement.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Hardy v Hummel, --- N.Y.S.3d ----, 2023 WL 7201003,
2023 N.Y. Slip Op. 05564(3d Dept.,2023) the parties' Indiana<span style="mso-spacerun: yes;"> </span>settlement agreement was approved by the
Indiana court and “made a part of” the Indiana decree. The decree directed that
“[e]ach of the parties is bound by the terms and conditions of the [a]greement
as an [o]rder of this [c]ourt.” Given that the settlement agreement merged into
the decree, the agreement “ceased to exist as a separately enforceable contract”
(Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258
[1988]). The Appellate Divison held that although the law implies a reasonable
time when a contract is silent on the time of performance, the settlement
agreement no longer existed upon its merger into the decree and, therefore,
contract principles did not apply in this action for enforcement.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Mere technical failures of the acknowledgment do not
foreclose the validity of an agreement. An acknowledgment must be executed
contemporaneously, although not necessarily simultaneously, with the party’s
signing of the agreement<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Ryerson v Ryerson, --- N.Y.S.3d
----, 2023 WL 7201028, 2023 N.Y. Slip Op. 05560 (3d Dept.,2023) Plaintiff (
wife) and defendant (husband) were married in 2005. On March 29, 2020, shortly
after the beginning of the COVID–19 pandemic, the parties executed a separation
agreement. At that time, Executive Order No. 202.7, issued on March 19, 2020,
was in effect, temporarily authorizing the use of audio-visual technology for
the remote execution of notarial acts required by state law. The parties met at
the wife’s house to execute the separation agreement and contacted a notary
public via video conference. After executing the agreement, the parties
conveyed to the notary that they had no access to a scanner or facsimile
machine to electronically transmit the document to the notary, as required by
Executive Order No. 202.7. The notary instructed the wife to mail the agreement
back to him, and the husband did not object to this proposed solution. A few
days later, the notary received the agreement in the mail, reviewed it,
acknowledged the parties’ signatures and mailed a copy of the agreement to each
of them. The parties thereafter began complying with several terms of the
agreement. The wife later initiated a matrimonial action, seeking, in relevant
part, to incorporate but not merge the separation agreement into a judgment of
divorce. The husband alleged that the agreement was invalid and unenforceable,
and moved to set it aside, asserting, among other things, that the agreement
was not signed in compliance with Executive Order No. 202. Supreme Court denied
the husband’s motions. The Appellate Divison affirmed. It observed that an
unacknowledged agreement is invalid and unenforceable in a matrimonial action.
Although substantial compliance of an acknowledgment with the relevant
statutory mandates is necessary for a separation agreement to be valid and
enforceable, mere technical failures of the acknowledgment do not foreclose the
validity of an agreement. The minor variation in which the agreement was sent to
the notary did not deprive the notary of authority, and it in no way tainted
the notarial process. In the absence of any substantive defect in the
acknowledgment itself, the election to send the agreement by mail rather than
electronic means was a mere technical irregularity that the courts may
overlook. It held that the acknowledgment process used here fulfilled the
requirement that an acknowledgment must be executed contemporaneously, although
not necessarily simultaneously, with the party’s signing of the agreement. This
rule “accounts for a reasonable delay between signing and acknowledgment, which
might be occasioned by circumstances unrelated to a party’s knowing delay or
intent to gain leverage over the other party as was the case here, where the
delay was attributable to the practicalities attendant to the COVID–19
pandemic. The two substantive aspects of an acknowledgment, the oral
declaration of the signers and the written certificate of acknowledgment, were
present here, and the two purposes of acknowledgment, proving the identity of
the signatories and imposing a measure of deliberation upon them had been
fulfilled.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;"><br />
November 1, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Applications and motions for the issuance of QDROs
are not barred by the statute of limitations <o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-family: arial;"><o:p></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Wansi v Wansi, ---
N.Y.S.3d ----, 2023 WL 7028913 (Mem), 2023 N.Y. Slip Op. 05457 (1<sup>st</sup>
Dept.,2023) the Appellate Division affirmed an order which denied plaintiff’s
motion to vacate a qualified domestic relations order (QDRO). It held that
contrary to plaintiffs contention applications and motions for the issuance of
QDROs are not barred by the statute of limitations and the Uniform Rules for
Trial Courts (22 NYCRR) § 202.48 is inapplicable because it was merely a
mechanism to effectuate payment of defendant’s share in plaintiff’s retirement
plan.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Petitioner lacked standing to bring a guardianship
petition where the child had already been placed in the care of the CSS for the
purpose of adoption <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of Lajuan M., v.
Administration for Children’s Services, --- N.Y.S.3d ----, 2023 WL 6394944,
2023 N.Y. Slip Op. 04932 (1<sup>st</sup> Dept.,2023)<span style="mso-spacerun: yes;"> </span>the Appellate Division affirmed an order of
the Family Court which dismissed, with prejudice, the petition for guardianship
brought under article 6 of the Family Court Act. It held that family Court properly
dismissed the petitioner’s request for custody of the subject child. Petitioner
lacked standing to bring a guardianship petition because the child had already
been placed in the care and custody of the Commissioner of Social Services for
the purpose of adoption (see Matter of Roslyn J. v. Charise J., 205 A.D.3d 480,
480, 165 N.Y.S.3d 846 [1st Dept. 2022]; Matter of Carmen P. v. Administration
for Children’s Servs., 149 A.D.3d 577, 577, 50 N.Y.S.3d 275 [1st Dept. 2017]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">A<span style="mso-spacerun: yes;"> </span>violation
petition is subject to the requirements of CPLR 3013, and is required to be
sufficiently particular as to provide notice of the occurrences to be proved
and the material elements of each cause of action<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Tonya YY., v. James ZZ., ---
N.Y.S.3d ----, 2023 WL 7028272, 2023 N.Y. Slip Op. 05435 (3d Dept.,2023) the
Appellate Division affirmed an order which dismissed the custody violation
petition without a hearing. It held that a<span style="mso-spacerun: yes;">
</span>violation petition is subject to the requirements of CPLR 3013, and thus
is required to be sufficiently particular as to provide notice to the court and
opposing party of the occurrences to be proved and the material elements of
each cause of action. In order to prevail on a violation petition, the
proponent must establish, as relevant here, that the alleged violator’s actions
or failure to act defeated, impaired, impeded or prejudiced a right of the
proponent and that the alleged violation was willful. Although an evidentiary
hearing is required where a violation petition sets forth sufficient
allegations that could support granting the relief sought a hearing is not
required, even where a factual dispute exists, where, as here, the allegations
set forth in the petition, even if accepted as true, are insufficient to
support a finding of contempt.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">October 25, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Promissory notes, which
provided that defendant would repay funds to plaintiff, were not enforceable
because they were not acknowledged in accordance with DRL § 236(B)(3). Where plaintiff
failed to establish a baseline value for the business she could not sustain any
claim to appreciation in the value of that business.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Barone v Clopton, --- N.Y.S.3d ----, 2023 WL 6883804, 2023 N.Y. Slip Op. 05309
(1<sup>st</sup> Dept.,2023) the Appellate Division reversed a judgment awarding
plaintiff $76,000 for loans she made to defendant during the marriage, as
memorialized by promissory notes, and $36,200 for third-party loans plaintiff
incurred during the marriage. It held that the promissory notes, which provided
that defendant would repay funds to plaintiff, were not enforceable in this
proceeding because they were not acknowledged in accordance with Domestic
Relations Law § 236(B)(3). Plaintiff could not properly have been awarded the
sums of those promissory notes or the third-party loans based on those sums
having caused defendant’s separate property business to appreciate in value
because Supreme Court determined that plaintiff failed to establish a baseline
value for the business, and thus, she could not sustain any claim to
appreciation in the value of the business (see Domestic Relations Law §§
236[B][1][d][3], [B][5][c]). Plaintiff did not otherwise demonstrate that she
was entitled to any credit for the third-party loans incurred and fully paid
during the marriage .<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">The word “expenses” is
commonly understood as meaning costs that are actually incurred.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Herman v Herman, --- N.Y.S.3d ----, 2023 WL
6853823, 2023 N.Y. Slip Op. 05252 (2d Dept.,2023) the parties were divorced by
a judgment that incorporated but did not merge a stipulation of settlement. The
plaintiff moved, inter alia, for an award of child support add-on expenses of
$31,128. Supreme Court, inter alia, granted the plaintiff’s motion. The
Appellate Division reversed. It held that<span style="mso-spacerun: yes;">
</span>Supreme Court erred. Where the stipulation is clear and unambiguous on
its face, the intent of the parties must be gleaned from the four corners of
the instrument, and not from extrinsic evidence. Here, the stipulation of
settlement was unambiguous. It required the defendant to pay a certain
percentage of child support add-on expenses incurred. It did not, however,
obligate him to pay a set amount of add-on expenses irrespective of whether, in
actuality, those expenses were incurred. The word “expenses,” which the
defendant was obligated to pay as add-ons, is commonly understood as meaning
costs that are actually incurred.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">One-time nonrecurring payments
should not have been utilized in calculating the husband’s income, where there
was no evidence that these payments would continue in the future <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-family:"Times New Roman",serif;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In McFarlane v McFarlane,---
N.Y.S.3d ----, 2023 WL 6883458, 2023 N.Y. Slip Op. 05295 (3d Dept.,2023) the
Support Magistrate determined that the husband had demonstrated an extreme
hardship to justify a reduction in maintenance. In calculating the husband’s
presumptive maintenance amount, the Support Magistrate imputed certain income
to the husband. Family Court partially denied the husband’s objections. It
determined that the Support Magistrate correctly found that the husband
demonstrated an extreme hardship warranting a downward modification, that the
maintenance obligation should continue, that the Support Magistrate properly
imputed income to the husband and appropriately considered the statutory
factors in deviating from the presumptive maintenance amount. The Appellate
Division observed that where, as here, the parties’ [stipulation] was
incorporated into the judgment of divorce, no modification as to maintenance
shall be made without a showing of extreme hardship”(see Domestic Relations Law
§ 236[B][9][b][1]). While it<span style="mso-spacerun: yes;"> </span>agreed that
the imputation of income to the husband was appropriate, it held that one-time
nonrecurring payments should not have been utilized in calculating the
husband’s income, including the value of a Mexican vacation, the “probable”
payment of counsel fees, a vaccination bonus, the sale of an elliptical, Honda
ATV and PRG vacation pay. There was no evidence that these payments would
continue in the future and as such they artificially inflated the husband’s
imputed income. Thus, these payments should not have been utilized in
determining his ongoing maintenance obligation.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Despite the father’s alleged
lack of biological relationship to the subject child the father’s unchallenged
acknowledgment of paternity afforded him the legal status of a parent for
purposes of this custody proceeding.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
In<span style="mso-spacerun: yes;"> </span>Matter of Autumn B., v. Jasmine A.,
--- N.Y.S.3d ----, 2023 WL 6883411, 2023 N.Y. Slip Op. 05293 (3d Dept.,2023)
Respondents Jasmine A. ( mother) and Glenn ZZ. ( father) were the parents of
the subject child (born in 2014); although the father’s paternity had been
questioned, it was undisputed that he executed a voluntary acknowledgment of
paternity following the child’s birth and that the acknowledgment remained in
force. The child, like his older half sister, was raised by his maternal
grandparents, whom the child understood to be his mother and father. Following
the grandmother’s death in March 2020, petitioner (aunt), the child’s maternal
aunt, commenced hearing, Family Court awarded the aunt sole custody of the
child and granted the father 30 minutes of supervised video visitation every
two weeks and at least two hours of supervised, in-person visitation per year.
The Appellate Division held as a<span style="mso-spacerun: yes;">
</span>preliminary matter, although there may have initially been an
unwarranted amount of attention paid to the father’s alleged lack of biological
relationship to the subject child, it was ultimately accepted that the father’s
unchallenged acknowledgment of paternity affords him the legal status of a
parent (see generally Family Ct Act § 516–a; Public Health Law § 4135–b). It
therefore rejected the father’s argument that Family Court’s award was affected
by a fundamental misunderstanding of law. The Appellate Division rejected the
father’s assertion that the aunt failed to establish extraordinary circumstances
and that the<span style="mso-spacerun: yes;"> </span>father has not cared for
the child for any period of time, and there was no indication of any meaningful
relationship between them. He offered no evidence to show that he had
considered, and could meet, any of the child’s basic needs. Deferring to Family
Court’s credibility determinations and factual findings, it found a sound and
substantial basis in the record for awarding the aunt sole custody of the
child.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">The certification requirement
of Family Ct Act § 1046(a)(iv) does not apply to proceedings which seek the <span style="mso-spacerun: yes;"> </span>termination of parental rights under Social
Services Law § 384–b<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of Nevaeh N. ,--- N.Y.S.3d ----, 2023 WL
6883449, 2023 N.Y. Slip Op. 05292 (3d Dept.,2023) the Appellate Division
affirmed an order which terminated the parents rights on the grounds of
permanent neglect. It rejected the fathers argument, that the court erred in
admitting certain substance abuse treatment records because they lacked a
certification required by Family Ct Act § 1046(a)(iv). It held that the
certification requirement of Family Ct Act § 1046(a)(iv) did not apply to these
proceedings which sought the termination of parental rights under Social
Services Law § 384–b (see Matter of Shirley A.S. [David A.S.], 90 A.D.3d 1655,
1655, 936 N.Y.S.2d 825 [4th Dept. 2011]). Even if the court erred in admitting
these records, it was harmless error.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Family Ct Act § 1046 does not
place a time limit on the admissibility of prior findings<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In<span style="mso-spacerun: yes;"> </span>Matter of
Bonnie FF. --- N.Y.S.3d ----, 2023 WL 6883479, 2023 N.Y. Slip Op. 05294 (3d
Dept.,2023) the Appellate Division held that Family Ct Act § 1046 does not
place a time limit on the admissibility of prior findings and our courts have
not established a bright-line temporal rule prohibiting the consideration of
prior protective determinations (see Matter of Evelyn B., 30 A.D.3d 913, 915,
819 N.Y.S.2d 573 [3d Dept. 2006]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">In a Termination of parental
rights proceeding an agency may move for an order finding that “reasonable
efforts to return the child to his or her home are no longer required” where
“the parental rights of the parent to a sibling of such child have been
involuntarily terminated. (Family Ct Act § 1039–b [b][6]).<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of Y. SS., --- N.Y.S.3d ----, 2023 WL
6883470, 2023 N.Y. Slip Op. 05296 (3d Dept.,2023) the Respondent<span style="mso-spacerun: yes;"> </span>was the mother of the subject child (born in
2013). The Appellate Division observed that it<span style="mso-spacerun: yes;">
</span>had recently upheld a neglect adjudication involving the child and her
continued placement with petitioner, which was premised upon the mother having
photographed the child in a sexually explicit manner, disseminated those
photographs and agreed to involve the child in her performance of sexual
services for money (211 A.D.3d 1390, 180 N.Y.S.3d 675 [3d Dept. 2022]).
Following that adjudication, petitioner moved to be relieved of its obligation
to make reasonable efforts to reunite the mother with the child, citing the
involuntary termination of the mother’s parental rights to several of the
child’s siblings (Family Ct Act § 1039–b [b][6]). The attorney for the child
supported the motion, the mother opposed and Family Court granted it without a
hearing. The Appellate Division affirmed. It observed that ordinarily, to
establish permanent neglect, the petitioning agency will need to demonstrate,
as relevant here, that it has made “diligent efforts to encourage and strengthen
the parental relationship”. However, an agency may move for an order finding
that “reasonable efforts to return the child to his or her home are no longer
required” in certain circumstances. One such circumstance is where “the
parental rights of the parent to a sibling of such child have been
involuntarily terminated,” unless the court further “determines that providing
reasonable efforts would be in the best interests of the child, not contrary to
the health and safety of the child, and would likely result in the
reunification of the parent and the child in the foreseeable future” (Family Ct
Act § 1039–b [b][6]). Although the Family Ct Act “does not require an
evidentiary hearing on such a motion, courts have found that such a hearing is
required by constitutional notions of due process ‘when genuine issues of fact
are created by the answering papers. Petitioner’s submissions detailed the
mother’s 30–year history of removals, neglect findings and terminations of her
parental rights as a result of her failure to meaningfully address her mental
health and her attendant issues with substance abuse, housing, employment and
safe parenting generally. This history includes the involuntary termination of
her parental rights with respect to four of the child’s siblings. Contrary to
the mother’s assertion, there is no temporal limitation on the terminations
that may be considered on a motion pursuant to Family Ct Act § 1039–b (see
Family Ct Act § 1039–b [b][6]. Upon review, it found that Family Court soundly
determined, without a hearing, that the exception in Family Ct Act § 1039–b did
not apply.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">October 18, 2023</span><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; mso-fareast-theme-font: major-fareast; text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal"><span class="MsoHyperlink"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></b></span></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-family: arial;"><span style="color: red; font-size: 11.0pt;">Appellate Division, First Department</span><span style="color: red;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">The granting of an income
execution for maintenance arrears does not<span style="mso-spacerun: yes;">
</span>foreclose entry of a money judgment on maintenance arrears<o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-family:"Times New Roman",serif;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Beer v Beer, --- N.Y.S.3d ----, 2023 WL 6626902,
2023 N.Y. Slip Op. 05182 (1<sup>st</sup> Dept.,2023 the Appellate Division
held, inter alia, that an income execution, awarded to the wife after the
husband unilaterally prevented her from receiving a portion of his income, did
not foreclose entry of a money judgment on maintenance arrears (see Domestic
Relations Law § 244; Seale v. Seale, 154 A.D.3d 1190, 1194, 63 N.Y.S.3d 550 [3d
Dept. 2017]; Gnoza v. Gnoza, 293 A.D.2d 571, 571–572, 740 N.Y.S.2d 226 [2d
Dept. 2003]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Appellate Division finds
Implicit consent to an order of reference by actively participating in the
proceeding without challenging the Referee’s jurisdiction.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Edward C. Y.,v. Jessica E. H.,.2023 WL 6626818 (1<sup>st</sup>
Dept.,2023), a family offense proceeding, the Appellate Division held that
although the record did not reflect that respondent provided written consent to
the order of reference (see CPLR 4317[a]), respondent implicitly consented to
the order of reference by actively participating in the proceeding without
challenging the Referee’s jurisdiction.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">In termination of parental
rights proceeding on the ground of abandonment mother was still obligated to
maintain contact with the petitioner, who had legal custody of the child, even
though the court had suspended her parental access<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of Abel J.R. --- N.Y.S.3d ----, 2023 WL
6613595, 2023 N.Y. Slip Op. 05139 (2d Dept.,2023) a proceeding to terminate
parental rights, the Appellate Division held that the mother failed to
demonstrate that the petitioner Agency prevented or discouraged her from
communicating with it or with the child, or that she was otherwise unable to do
so. The mother’s contention that the petitioner prevented her from
communicating with the child by suspending her parental access was without
merit, as it was the Family Court that suspended the mother’s parental access
with the child, not the petitioner. Further, the mother was still obligated to
maintain contact with the petitioner, which had legal custody of the child,
even though the court had suspended her parental access (see Matter of “Baby
Boy” N. [Albert N.], 163 A.D.3d 570, 572, 81 N.Y.S.3d 91; Matter of Alexandryia
M.M.B. [Heather C.], 132 A.D.3d 664, 664, 17 N.Y.S.3d 321). The Family Court
ruled that the mother could not present evidence regarding events that occurred
before the statutory abandonment period. Family Court’s ruling relating to the
petitioner’s alleged discouragement before the statutory abandonment period did
not prevent the mother from establishing that her failure to communicate with
the child or with the petitioner was due to the petitioner’s discouragement
(see Matter of Alexa Ray R., 276 A.D.2d 703, 704, 714 N.Y.S.2d 347). The court
was presented with evidence that the petitioner’s alleged conduct before the
statutory abandonment period discouraged the mother from communicating with the
petitioner during the statutory abandonment period. The alleged additional
evidence proffered by the mother, even if credited, would not have risen to the
level of agency discouragement or prevention of contact. Assuming arguendo that
the additional testimony regarding the petitioner’s alleged discouragement
before the statutory abandonment period was relevant and should have been
admitted, under the circumstances of this case, any error in the Family Court’s
ruling was harmless.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Plaintiff did not establish
the alleged harassing statements were made with the necessary intent to harass,
alarm, or annoy her where<span style="mso-spacerun: yes;"> </span>each of the
alleged statements was made in the context of discussing issues related to the
parties’ children <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In<span style="mso-spacerun: yes;"> </span>S.D.<span style="mso-spacerun: yes;"> </span>v. J.D., 2023 WL 6614672, Unreported
Disposition (Sup. Ct., 2023) a post-judgment proceeding, the Supreme Court
denied the plaintiff’s motion for a temporary Order of Protection against
Defendant. It observed that Domestic Relations Law (DRL) § 240(3) permits the
court to make an order of protection in connection with any custody order and
DRL § 252(1) mandates that the court entertain an application for an order of
protection or temporary order of protection made by either party in either a
pre-judgment or post-judgment proceeding. Courts have followed the case law
developed under Article 8 of the Family Court Act when deciding such
applications. The party alleging a family offense has the burden of
establishing the complained of conduct by a fair preponderance of the evidence.
Penal Law § 240.26 provides in relevant part that “[a] person is guilty of
harassment in the second degree when, with intent to harass, annoy or alarm
another person: 3. He or she engages in a course of conduct or repeatedly
commits acts which alarm or seriously annoy such other person, and which serve
no legitimate purpose.”<span style="mso-spacerun: yes;"> </span>The intent to
commit harassment in the second degree can be inferred from the party’s conduct
and the surrounding circumstances. Finn v. Harrison, 188 AD3d 1200 (2d Dept.
2020) (intent to commit harassment in the second degree properly inferred from
the respondent’s conduct, which included “her use of abusive language directed
at the petitioner and her threatening action of videotaping the petitioner while
she slept, both of which frightened the petitioner, caused her blood pressure
to rise, and served no legitimate purpose”); Matter of Howard v. Howard, 181
AD3d 894, 896 (2d Dept. 2020) (intent to commit harassment in the second degree
properly inferred from the respondent’s threatening conduct and use of abusive
language directed at the petitioner which frightened the petitioner and served
no legitimate purpose). Moreover, a single incident is sufficient to establish
harassment in the second degree. See Matter of Richardson v. Brown, 173 AD3d
876, 876—877 (2d Dept. 2019) (evidence established the respondent committed the
family offense of harassment in the second degree based on a text message sent
by him to the petitioner, which “contained a genuine threat of physical harm,
and the evidence ... adequately demonstrated that it was reasonable for the
petitioner to take the threat seriously since it was sent during a period of
extreme marital discord”).<span style="mso-spacerun: yes;"> </span>The Court found
that Plaintiff failed to allege the requisite elements to state a claim for
harassment in the second degree and that the offending statements at issue,
which were undisputed rose to the level of a family offense. The plaintiff did
not establish the alleged harassing statements were made with the necessary
intent to harass, alarm, or annoy her. See Mamantov v. Mamantov, 86 AD3d 540,
551 (2d Dept. 2011) (“accepting the evidence as true and giving her the benefit
of every reasonable inference, the wife failed to demonstrate, prima facie,
that the husband, in committing the act alleged, acted with an ‘intent to
harass, annoy or alarm’ ”). Rather, each of the alleged statements was made in
the context of discussing issues related to the parties’ children and Plaintiff
herself made similar statements and used similar language towards Defendant.
Courts have determined that “[m]ere words alone are not enough to constitute
the family offense of harassment.” Lisa T. v. K.T., 49 Misc 3d 847, 853 (Fam.
Ct. 2015) (respondent’s emails to petitioner in custody dispute were not sent
with the intention of harassment where respondent obtained a custody order
giving him a legitimate reason to contact petitioner); see also People v.
Dietze, 75 NY2d 47, 51 (1989) (“unless speech presents a clear and present
danger of some serious substantive evil, it may neither be forbidden nor
penalized”).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Family Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">New York was not the
children’s “home state” within the meaning of Domestic Relations Law § 75-a(7),
and New York did not have initial child custody jurisdiction under Domestic
Relations Law § 76 where none of the children lived in New York within the six-month
period before the commencement of the proceedings.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of E.P.,v. B.S., --- N.Y.S.3d ----, 2023 WL
6819194, 2023 N.Y. Slip Op. 23318 (Fam Ct, 2023) the father contended that New
York lacked initial child custody jurisdiction because New York was not the
“home state” of the children within the meaning of Domestic Relations Law §
75-a (7) because none of the children were living in New York for the six
months immediately before the filing of the petitions in November 2022.
Previous custody petitions had been filed in New York in 2017 and New York had
issued temporary orders regarding custody and visitation in those proceedings.
All the petitions filed in 2017 were dismissed in November 2022. The father
pointed out that when the 2017 proceedings were commenced, none of the children
resided in New York. For more than six months before the filing of the 2017
petitions, the children C. and A. had resided in Connecticut with the mother.
Family Court held that since all the petitions filed in 2017 have been
dismissed and the temporary orders vacated, the issue was not whether the court
had initial child custody jurisdiction in 2017 when the parties filed those
petitions, but rather whether the Court now had initial child custody
jurisdiction on the petitions filed in 2022. None of the children lived in New
York within the six-month period before the commencement of the proceedings. It
was undisputed that the children C. and A. had been residing with the mother in
New Jersey since 2019. As such, New York was not the children’s “home state”
within the meaning of Domestic Relations Law § 75-a(7), and New York did not
have initial child custody jurisdiction under Domestic Relations Law § 76.<o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="color: black; font-size: 11.0pt; mso-bidi-font-weight: normal; mso-themecolor: text1; text-decoration: none; text-underline: none;"><span style="font-family: arial;"><br />
October 11, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><span class="MsoHyperlink"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></b></span></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">New York was the child’s home
state, where the child had resided in New York for over six months prior to the
mother filing for custody. Her relocation from Morocco to escape domestic
violence was not wrongful removal of the child and her petition for custody
was, therefore, properly commenced in New York. <o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Geraldine H.T.B., v. Guillaume A.P.M.J., --- N.Y.S.3d ----, 2023 WL
6558919, 2023 N.Y. Slip Op. 05091 (1<sup>st</sup> Dept.,2023) the Appellate
Division affirmed an order of the Family Court which held that New York had
exclusive jurisdiction over the custody proceeding for the subject child under
the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Family
Court properly determined that New York was the child’s home state, based on
the fact that the child had resided in New York for over six months prior to
the mother filing for custody (see Domestic Relations Law §§ 75–a[7], 76[1][a],
76–a[1]). The mother’s relocation from Morocco to escape domestic violence was
not wrongful removal of the child (see Domestic Relations Law § 76–g[4],
Jacquety v. Baptista, 538 F.Supp.3d 325 [S.D.N.Y.2021]), and her petition for
custody was, therefore, properly commenced in New York. This was not
contradicted by the mother having filed a divorce petition in Morocco, as that
petition did not seek custody of the child. Nor did the father filing a
petition for reconciliation in Morocco constitute a custody proceeding under
the UCCJEA, as that filing was not made in substantial conformity with the
jurisdictional requirements of the UCCJEA (see Domestic Relations Law § 76[1].
As a matter of New York’s public policy to protect the victims of domestic
abuse, Family Court’s conclusion that enforcing the Moroccan judgment would
subject both the mother and the child to grave risk of harm was a proper
exercise of Family Court’s discretion under the circumstances (see Domestic
Relations Law §§ 75[2]; 75–d[3]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">While the Domestic Relations
Law allows for deductions for “unreimbursed employee business expenses except
to the extent said expenses reduce personal expenditures” such expenses are
properly deducted from parental income in calculating child support obligations
only when proven, usually by tax returns accompanied by records and receipts.<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Qazi v Qazi, --- N.Y.S.3d ----, 2023 WL 6452028, 2023 N.Y. Slip Op. 04970 (2d
Dept.,2023) the parties were married in 1994 and had two children. The
plaintiff commenced the<span style="mso-spacerun: yes;"> </span>action for a
divorce in May 2016. Supreme Court, inter alia, imputed an annual income of
$72,000 to the defendant for purposes of calculating child support, and,
utilizing this figure, directed the defendant to pay $1,384.10 per month in
basic child support, as well as 66% of the children’s unreimbursed medical and
undergraduate college expenses. The Appellate Division held that Supreme
Court’s discretionary determination to impute an annual income to the defendant
of $72,000 for the purposes of calculating child support, based upon the
defendant’s own admissions, was supported by the record. While the Domestic
Relations Law allows for deductions for “unreimbursed employee business
expenses except to the extent said expenses reduce personal expenditures”
(Domestic Relations Law § 240[1–b][5][vii][A]), such expenses “are properly deducted
from parental income in calculating child support obligations only when proven,
usually by tax returns accompanied by records and receipts. As the defendant
failed to prove his actual, current business expenses, it affirmed the judgment
of divorce insofar as appealed from.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">To ensure that waivers of the
statutory provisions of the CSSA are truly knowingly made, Domestic Relations
Law § 240(1–b)(h) requires that, in order to be valid, a stipulation must
contain the required recitals<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Sayles v Sayles, --- N.Y.S.3d ----, 2023 WL 6452033, 2023 N.Y. Slip Op. 04968
(2d Dept.,2023) the parties were married in 1996 and had two children. In May
2012, the parties entered into a separation agreement in which they agreed that
the defendant would pay child support of $1,200 per month for the parties’ two
children, an amount that was specified in the agreement to be less than the
presumptively correct amount of support that would have been calculated
pursuant to the Child Support Standards Act ( CSSA), and also agreed that the
defendant would pay child support of $600 per month upon the emancipation of
the parties’ first child. In 2021, the plaintiff commenced the action for a
divorce and moved, to set aside and vacate the child support provisions of the
separation agreement requiring the defendant to pay $600 per month in child
support upon the emancipation of the parties’ first child and to direct the
defendant to pay the presumptively correct amount of child support for one
child in accordance with the CSSA, arguing that the parties’ separation
agreement failed to comply with the recital requirements of the CSSA (see
Domestic Relations Law § 240[1–b][h]). The Supreme Court denied the plaintiff’s
motion. The Appellate Division reversed. It held that to ensure that waivers of
the statutory provisions of the CSSA are truly knowingly made, Domestic
Relations Law § 240(1–b)(h) requires that, in order to be valid, a stipulation
must recite that the parties have been made aware of the CSSA, and that the
basic child support obligation provided for therein would presumptively result
in the correct amount. Where the stipulation deviates from the basic child
support obligation, it must specify what the presumptive amount would have been
and the reason for the deviation”.<span style="mso-spacerun: yes;">
</span>Here<span style="mso-spacerun: yes;"> </span>the provisions in the
parties’ separation agreement relating to the child support obligations with
respect to one child did not contain the specific recitals mandated by the
CSSA, and the record did<span style="mso-spacerun: yes;"> </span>not demonstrate
that the plaintiff’s agreement to said provisions was made knowingly.
Accordingly, the provisions were<span style="mso-spacerun: yes;"> </span>not
enforceable.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">The respondent in a civil
contempt proceeding who faces the possibility of the imposition of a term of imprisonment
has the right to the assignment of counsel upon a finding of indigence<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Hoffman v Hoffman, --- N.Y.S.3d ----, 2023 WL 6451999, 2023 N.Y. Slip Op. 04959
(2 Dept.,2023) the Appellate Division held that in<span style="mso-spacerun: yes;"> </span>general, the respondent in a civil contempt
proceeding who faces the possibility of the imposition of a term of
imprisonment, however short, has the right to the assignment of counsel upon a
finding of indigence. Moreover, a parent has the statutory right to counsel in
a proceeding in which it is alleged that he or she has willfully failed to
comply with a prior child support order.<span style="mso-spacerun: yes;">
</span>(Family Ct Act § 262 [a] [vi]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Supreme Court Granted Comity
to German Judgment. Duly recognized foreign judgments are immune from
collateral attack in the New York courts by a party who, as here, properly
appeared in the foreign divorce action, absent some showing of fraud or a
violation of a strong public policy of the State.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Application of Nicole P., 2023 WL 6528954 (Sup. Ct.,2023) Nicole P., sought
an<span style="mso-spacerun: yes;"> </span>Order awarding her a Majauskas share,
with pre- and post-survivorship benefits, of Respondent’s military retirement
benefits, and pension benefits from his employment with General Electric. The
parties entered into<span style="mso-spacerun: yes;"> </span>mediation which
resulted in the execution of a settlement agreement, which was prepared in
English, on April 28, 2017. Thereafter, the parties were advised that the Swiss
Court would only accept documents written in German before a divorce could be
granted. As a result, the parties had their executed separation agreement
translated into German by a certified translator and executed the translated
agreement on May 12, 2017. Because the parties did not have the ability to read
or understand the German language, they were unable to personally verify the
accuracy of the translated separation agreement.. The parties were represented
by the mediator for the duration of the proceedings before the Swiss court. On
or about September 15, 2022, Petitioner filed the application. Respondent
argued that Petitioner waived any claim to his pension and military benefits
based on the terms of the English version of the settlement agreement. The
English agreement provided, in relevant part, as follows: *2 5. Dividing of
pension funds “All USA pensions are divided according to NY law; this includes
military pension and [Respondent’s] GE pension, and any other pensions and
social security government pension[s].” After receiving Petitioner’s
application, Respondent was advised by his Swiss attorney that the German
version of the parties’ separation agreement did not contain an accurate
translation of the pension provision in the English agreement. According to
Respondent, the pension provision in the German agreement provided as follows:
5. Allocation of the pension fund “All US pensions are shared under New York
State law, this includes the US Army Veteran’s Pension and his GE pension, as
well as any other government pensions and AHV pensions.” Respondent commenced a
proceeding in the Swiss court seeking to correct/amend the German version of
the agreement due to the alleged translation mistake. The Swiss court issued a
decision dismissing Respondent’s application and declared the German agreement
to be legally valid and binding. The Court found that the German version of the
parties’ agreement was controlling. Respondent petitioned the Swiss court
regarding the differing translations of the pension provisions and the Swiss
court held that the German agreement is the legally binding agreement between
the parties. Furthermore, the parties’ Swiss divorce decree dated May 12, 2017,
and entitled “Ruling of the President of the Court,” specifically stated that
both the English and German versions of the parties’ separation agreement “are
attached to this ruling as an integral part” but that the “German version is
the decisive one.” Supreme Court held that New York courts will generally
accord recognition to bilateral foreign judgments of divorce, including the
terms and provisions of any agreements incorporated therein, under the doctrine
of comity. No specific language is necessary to create an incorporation by
reference. The court must look to the entire judgment of divorce and the
surrounding circumstances. These duly-recognized foreign judgments are
thereafter immune from collateral attack in the New York courts by a party who,
as here, properly appeared in the foreign divorce action, absent some showing
of fraud or a violation of a strong public policy of the State. The Court
found<span style="mso-spacerun: yes;"> </span>no basis to disturb the Swiss
court’s ruling that the German version of the separation agreement was a
legally binding (see S.B. v. W.A., 38 Misc 3d 780, 798-99; Tal v. Tal, 158 Misc
2d 703, 706).<o:p></o:p></span></span></b></p>
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<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">October 4, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><span class="MsoHyperlink"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></b></span></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
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<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Mother did not have a right to
habeas corpus relief pertaining to the illegal detention of a child where the
child is not present in New York<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-tab-count: 1;"> </span>In Matter of Alexandra RR v
Doris H, 2023 --- N.Y.S.3d ----, 2023 WL 6394632, 2023 N.Y. Slip Op. 04948(1<sup>st</sup>
Dept.,2023) the Appellate Division held that the Family Court properly denied
the mother’s petition for a writ of habeas corpus. As the petitions for writs
of habeas corpus pertained to the illegal detention of a child by either
parent, which is not present here [in New York]<span style="mso-spacerun: yes;">
</span>the mother did not have a right to habeas corpus relief (Domestic
Relations Law § 70[a]; see Matter of Kiara B. v. Omar R., 147 AD3d 476 [1st
Dept 2017]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
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<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">While an agreement is not
unconscionable merely because, in retrospect, some of its provisions were
improvident or one-sided, an agreement that might not have been unconscionable
when entered into may become unconscionable at the time a final judgment would
be entered.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In McEvoy v McEvoy, --- N.Y.S.3d ----,
2023 WL 6278671, 2023 N.Y. Slip Op. 04764 (2d Dept., 2023) the parties were
married on September 13, 2014. Before their marriage, they entered into a
prenuptial agreement dated July 2, 2014. The agreement stated, inter alia, that
marital property would not be created unless the parties placed marital
earnings into a joint account or titled property jointly. All property titled
in an individual party’s name would remain separate property, including income
earned during the marriage. Both parties also waived their right to
maintenance. At the time of the agreement, the plaintiff was employed by Jewish
Metropolitan Hospice and the defendant was employed by the New York City
Department of Sanitation. The defendant entered the marriage with assets
totaling approximately $355,000, while the schedule purporting to list the
plaintiff’s assets remained blank. There were two children of the marriage,
born in 2015 and 2019. The plaintiff became a stay-at-home parent after the birth
of the parties’ first child. The plaintiff suffered a stroke on August 28,
2019. Shortly following her stroke, the plaintiff petitioned the Family Court
for, inter alia, a parenting schedule, and the parties were subsequently
granted joint physical custody of the children. In February 2020, the plaintiff
commenced the action for a divorce and moved, inter alia, to set aside the
parties’ prenuptial agreement. The defendant cross-moved for summary judgment
on the validity of the prenuptial agreement. The Supreme Court granted the
plaintiff’s motion to set aside the parties’ prenuptial agreement, awarded the
plaintiff $2,885.94 per month in temporary maintenance and $10,000 in interim
attorneys’ fees, but denied the plaintiff’s motion for an award of pendente
lite child support. The Appellate Division observed that an unconscionable
bargain is one which no person in his or her senses and not under delusion
would make on the one hand, and no honest and fair person would accept on the
other, the inequality being so strong and manifest as to shock the conscience
and confound the judgment of any person of common sense. While “an agreement is
not unconscionable ‘merely because, in retrospect, some of its provisions were
improvident or one-sided an agreement that might not have been unconscionable
when entered into may become unconscionable at the time a final judgment would
be entered” (Taha v. Elzemity, 157 A.D.3d 744, 745–746, 68 N.Y.S.3d 493). It
found that the plaintiff sustained her burden of establishing that the
prenuptial agreement was unconscionable. Based on the record, the plaintiff
received no benefit from the agreement, as no marital assets were created
during the marriage and the plaintiff relinquished all rights to any property
or earnings titled in the defendant’s name. Enforcement of the agreement would
result in the risk of the plaintiff becoming a public charge, as she had
suffered a debilitating stroke, had been unemployed since the birth of the
parties’ first child, and would be left largely without assets, while the
defendant would retain approximately $942,000 in assets and continue making
approximately $190,000 per year. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division also held that the Supreme Court erred in denying
plaintiff’s motion for pendente lite child support. The Court of Appeals held
that the Child Support Standards Act applies to shared custody cases and that
child support in a shared custody case should be calculated as it is in any
other case. Where neither parent has the child for a majority of the time, the
parent with the higher income, who bears the greater share of the child support
obligation, should be deemed the noncustodial parent for the purposes of child
support. It was undisputed that the parties share physical custody of the
children equally. The defendant was estopped from claiming that he was the
primary physical custodian of the children for child support purposes, which
was a contrary and inconsistent position to the position he took in motion
practice The plaintiff was considered the custodial parent for purposes of
child support, as she was the nonmonied spouse. The defendant was directed to
pay to the plaintiff $2,885.94 per month in basic child support, as well as 80%
of the children’s add-on expenses, during the pendency of this action.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">The court properly took
judicial notice of a functionally identical CPI index published by the
government to replace the defunct CPI index specified in the prenuptial
agreement to give effect to the parties’ stated intent. The discontinuance of
the index specified in the prenuptial agreement did not render the subject
clause unenforceable.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In Lin v Banko, 2023 WL 6278707 (2d
Dept.,2023) the parties entered into a prenuptial agreement in July 2001 and
married in August 2001. The prenuptial agreement established, inter alia, the
plaintiff’s entitlement to a distributive award in an amount dependent upon the
duration of the parties’ marriage as measured from the earliest of three
alternative termination events, including, as relevant here, the “separation”
of the parties or the commencement of an action for divorce. The prenuptial
agreement also fixed maintenance of $50,000 per annum, payable monthly. This
sum was to be adjusted according to a specified inflation index published by
the U.S. Department of Labor. The plaintiff commenced this action for a
divorce. Supreme Court conducted a nonjury trial and determined, inter alia,
that, for the purposes of the prenuptial agreement, the marriage terminated on
the commencement of this action, and that the 2018 “CPI for Urban Wage Earners
and Clerical Workers, New York–Newark–Jersey City, NY–NJ–PA” index ( the 2018
Index) would be used to calculate the adjustments to the maintenance sum in
place of the index specified in the prenup. The judgment of divorce, awarded
the plaintiff maintenance of $6,216.66 per month, to be adjusted annually
according to the 2018 Index, and awarded the plaintiff a distributive award of
$850,000. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division affirmed. It held that contrary to the defendant’s
contention, the credible evidence adduced at trial supported the Supreme
Court’s determination that the parties did not separate in May 2016 and that
therefore, the parties’ marriage terminated, for purposes of calculating the
distributive award, on the day that the plaintiff commenced this action. The
Supreme Court also correctly determined that the parties intended for annual
cost of living adjustments to be applied to the defendant’s maintenance
obligation. The parties expressly agreed that the “fairness and adequacy” of
the maintenance sum depended on yearly adjustments to the amount of maintenance
in line with increases to the cost of living. The court, therefore, properly
rejected the defendant’s proffered interpretation of the prenuptial agreement
as inconsistent with the parties’ intent, and properly took judicial notice of
a functionally identical index published by the same government source to
replace the defunct index specified in the prenuptial agreement to give effect
to the parties’ stated intent. Contrary to the defendant’s contentions, the
discontinuance of the index specified in the prenuptial agreement did not
render the subject clause unenforceable.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><o:p><span style="font-family: arial;"> </span></o:p></span></h1>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Supreme Court set aside
judgment of divorce pursuant to CPLR 5015(a)(3) based on intrinsic fraud and
restored the action to the calendar where the husband’s assertion that the wife
did not have a social security number was false as was the sworn statement that
there were no children of the marriage.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Eyon
G v Monica G, 2023 WL 6382649 (Sup. Ct., 2023) the parties were divorced
pursuant to an Uncontested Judgment of Divorce, on default, based upon
irretrievable breakdown of the marriage. Defendant-Wife contended that the
Judgment of Divorce should be set aside because it was “based on lies” and that
the action be restored to the calendar. She testified that she was never
served, nor did she ever reside at the address listed on the affidavit of
service. She also noted that she had a social security number and that the
husband’s assertion that she did not have a social security number was false as
was the sworn statement that there were no children of the marriage. The Court
found her testimony to be credible. The Plaintiff testified that he commenced
the divorce action; that he was referred to someone by the name of “Reynaldo”
in Brooklyn to assist him in preparing the divorce paper; that he was given an
“information sheet” to fill out which listed<span style="mso-spacerun: yes;">
</span>the name of a self-represented divorce company; that another individual
named “Orlando” prepared and filed the divorce documents on his behalf and that
neither Reynaldo nor Orlando asked him whether he had any children, although he
had six (6) children. He testified that after Orlando prepared the documents he
reviewed and signed the documents. The Court granted the motion. It observed
that CPLR 5015 (a) (3) provides that “the court which rendered a judgment or
order may relieve a party from it upon such terms as may be just, on motion of
any interested person with such notice as the court may direct upon the ground
of: fraud, misrepresentation, or other misconduct of an adverse party.” A
defendant seeking to vacate a judgment of divorce has the burden of
establishing, by admissible evidence, the existence of fraud,
misrepresentation, or other misconduct on the plaintiff’s part sufficient to
entitle him or her to vacatur. The Defendant met that burden.“Where a defendant
seeks to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud,
he or she must establish a reasonable excuse for the default and a potentially
meritorious defense to the action” (Mission Field Church, Inc. v. Lindsay, 214
AD3d 981, 982 [2d Dept 2023]). “It is well established that a party seeking to
set aside a judgment on the basis of fraud “will not prevail by merely showing
fraud in the underlying transaction but must show fraud in the very means by
which the judgment was procured”<span style="mso-spacerun: yes;">
</span>(Cofresi v. Cofresi, 198 AD2d 321, 321 [2d Dept 1993]). Here, the Wife
was able to establish a meritorious defense. The very means by which this
Judgment of Divorce was procured was fraudulent. The Husband failed to offer a
satisfactory explanation for this misrepresentation and appeared to shift blame
to the individual who assisted him in preparing the divorce papers. The
concealment was in effect also a fraud upon the Court. The Plaintiff-Husband
filed a false affidavit pursuant to Penal Law § 175.30. The sworn, notarized
statements submitted by the Plaintiff-Father to procure a Judgment of Divorce
constituted “material factual statements that are false” within the meaning of
22 NYCRR 130—1.1(c). The plaintiff was sanctioned $500.00 for his frivolous
conduct in filing a false instrument with the court. The motion to vacate the
judgment was granted, the Judgment of Divorce was vacated, and action was
restored to the contested matrimonial calendar.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Supreme Court found that in
both New York and New Jersey, a marriage is formed when a couple obtains a
marriage license and partakes in a wedding ceremony before a proper officiant
at which the parties solemnly declare that they take each other as spouses. The
parties satisfied these requirements.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
S.F., v. J.S., Slip Copy, 2023 WL 6382637 (Table), 2023 N.Y. Slip Op. 51033(U)
Unreported Disposition (Sup. Ct.,2023) defendants motion to dismiss the action,
contending that no valid marriage existed between the parties was denied, and
summary judgment was granted in plaintiffs favor. The parties became engaged to
marry on November 25, 2019.<span style="mso-spacerun: yes;"> </span>The parties
had a religious wedding ceremony and party, which took place on June 21, 2021
at a wedding venue in New Jersey. Approximately one month prior to the wedding,
the parties submitted a sworn Application for Marriage License to the New
Jersey Department of Health. Page two of the License Application reflects that
a wedding license was duly granted on May 18, 2021, and would expire on August
15, 2021.<span style="mso-spacerun: yes;"> </span>On June 21, 2021, the parties
participated in a Jewish wedding ceremony witnessed by more than 200 friends
and family. Before the ceremony took place under the chuppah (a Jewish wedding
canopy), the men and women were kept in separate rooms. In the men’s room, an
engagement contract was signed and then the parties’ mothers came in and broke
a plate with a hammer as part of this contract. The parties’ Ketubah (a
traditional Jewish marriage contract) was signed by Rabbi X and then two (2)
witnesses, M.H. and E.P., both close friends of Defendant. Thereafter, the
wedding ceremony took place under the chuppah. This was composed of two (2)
parts - the kiddushin and the nissuin. First, the Rabbi asked several questions
of the Defendant. When he agrees, he is asked to give the bride the ring that
he owns. This “transfer of possession” is called “Kinyon,” and shows the
consent of both parties to enter into marriage. Just before presenting the
bride with the ring, the groom says “Behold, by this ring you are consecrated
to me as my wife according to the laws of Moses and Israel.” Here, Defendant
transferred the ring to Plaintiff and recited the statement. This statement,
along with the act of Kinyon, makes the bride and groom married. After the
chuppah ceremony, the parties went to a personal suite, guarded by two
witnesses, to consummate the marriage. The wedding reception was held
immediately after the ceremony. The parties disputed whether the wedding
ceremony was only intended to be “symbolic.” Plaintiff<span style="mso-spacerun: yes;"> </span>disputed Defendant’s claim that they both
agreed not to have the marriage license/certificate filed with the New Jersey
Department of Health following the wedding. Ultimately, the certificate was
never filed.<span style="mso-spacerun: yes;"> </span>Both parties claimed not
to know where the unrecorded original certificate was located currently. The
Court found that in both New York and New Jersey, a marriage is formed when a
couple obtains a marriage license and partakes in a wedding ceremony before a
proper officiant at which the parties solemnly declare that they take each
other as spouses. The parties satisfied these requirements. However, in New
York the failure to obtain a marriage license does not void a properly
solemnized marriage (see Dom Rel § 25). The Domestic Relations Law establishes
that where parties participate in a solemn marriage ceremony officiated by a
clergyman or magistrate wherein they exchange vows, they are married in the
eyes of the law (Persad v Balram, 187 Misc 2d 711, 713 [Sup Ct, Queens County
2001]). The Court found that the marriage was valid under New York and New
Jersey law. It rejected defendant argument that<span style="mso-spacerun: yes;">
</span>the parties’ marriage was invalid under New York law because the rabbi
who solemnized the marriage did not register with the Clerk of New York City.
This claim has specifically been rejected by controlling appellate authority
(See Shamsee v. Shamsee, 51 AD2d 1028 [2nd Dep’t 1976].<span style="mso-spacerun: yes;"> </span>Defendant’s reliance on Ponorovskaya v.
Stecklow (45 Misc 3d 597 [Supreme Court, New York County 2014]) was misplaced
as the circumstances here were distinguishable. In Ponorovskaya, the court
declined to apply New York law to find a marriage valid where the parties did
not complete the application for a marriage license, had a “symbolic” ceremony
in Mexico, and knew or should have known that they were not complying with the
Mexican formalities required. Further, neither one had a justifiable
“expectation that they were legally married,” and defendant “unequivocally knew
both before and after the wedding that it did not constitute a valid marriage.”
Nor was this case akin to Devorah H. v. Steven S. (49 Misc 3d 630 [Supreme
Court, New York County 2015]). In Devorah H., the “wedding,” although conducted
by a rabbi, was spontaneous and sudden, “bare-boned,” and lasted only a few
minutes. Further, there may or may not have been witnesses, rings were not
exchanged, and it is unclear if there was a Ketubah. In addition, the rabbi who
officiated expected and advised the parties to obtain a marriage license and
come back to him to conduct another ceremony, indicating his awareness that the
impromptu ceremony had no legal import. Because the parties’ actions
unquestionably satisfied the statutory requirements to form a marriage in both
New Jersey and New York, there was no basis to dismiss this action.<o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;"><br />
September 27, 2023 <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Appellate Divison holds that
the lack of a post-judgment retainer agreement did<span style="mso-spacerun: yes;"> </span>not preclude recovery of counsel fees where
the wife’s counsel substantially complied with 22 NYCRR 1400.3<o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
McLennan v McLennan, --- N.Y.S.3d ----, 2023 WL 6219225 (Mem), 2023 N.Y. Slip
Op. 04724 (1<sup>st</sup> Dept.,2023), a post-judgment enforcement and
modification proceeding,<span style="mso-spacerun: yes;"> </span>the Appellate
Division held that the absence of a post-judgment retainer agreement did not
preclude recovery of counsel fees here, where the wife’s counsel substantially
complied with the requirements of 22 NYCRR 1400.3 and the wife clearly
authorized counsel to act on her behalf.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Islamic Mahr agreement was
unenforceable for lack of proper acknowledgment required by Domestic Relations
Law § 236(B)(3), as it would be improper and unconstitutional to treat a Mahr
agreement differently than other religious or nonreligious nuptial agreements </span><span lang="EN-CA" style="font-size: 11.0pt; mso-ansi-language: EN-CA; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In Khan v Hasan, 2023 WL 6134161 (2d
Dept., 2023) the parties were married in a civil ceremony on March 2, 2016, and
subsequently held a religious ceremony on September 12, 2016. Their<span style="mso-spacerun: yes;"> </span>religious certificate of marriage, which was
signed by two witnesses and an imam, but was not acknowledged, listed<span style="mso-spacerun: yes;"> </span>an amount of $50,000 for “Meher.” The parties
assert that a Meher or Mahr agreement is an agreement between the parties to a
marriage, under Islamic law, that the husband will pay to the wife a specified
sum in the event of a divorce. Related to an action for a divorce the plaintiff
commenced a plenary action to set aside the Mahr agreement. Supreme Court
granted the plaintiff summary judgment and determined that the Mahr agreement
was unenforceable for lack of acknowledgment. The Appellate Division affirmed.
It pointed out that the Court may apply well-established principles of secular
law to the dispute, thus permitting judicial involvement to the extent that it
can be accomplished in purely secular terms” (Avitzur v. Avitzur, 58 N.Y.2d
108). It noted that Domestic Relations Law § 236(B)(3) states that an agreement
by the parties, made before or during the marriage, shall be valid and
enforceable in a matrimonial action if such agreement is in writing, subscribed
by the parties, and acknowledged or proven in the manner required to entitle a
deed to be recorded. An unacknowledged agreement is invalid and unenforceable
in a matrimonial action (Matisoff v. Dobi, 90 N.Y.2d 127). Here, pursuant to
the neutral principles of law approach, the Supreme Court properly determined
that the Mahr agreement was unenforceable for lack of proper acknowledgment, as
it would be improper and unconstitutional to treat a Mahr agreement differently
than other religious or nonreligious nuptial agreements in terms of procedural
requirements. It rejected the defendant’s contention that she could cure the
acknowledgment defect, as the Court of Appeals has held that “an acknowledgment
must be executed contemporaneously, although not necessarily simultaneously,
with the party’s signing of the agreement (Anderson v. Anderson, 37 N.Y.3d
444).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Family Court erred in
determining, in effect, that proving sexual abuse was a prerequisite to proving
neglect. Family Court also erred in finding that the child’s out-of-court
statements about sexual abuse were uncorroborated. Independent statements requiring
corroboration may corroborate each other.<span style="mso-spacerun: yes;">
</span><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Jada W, --- N.Y.S.3d ----, 219 A.D.3d 732, 2023 WL 5251492, 2023 N.Y.
Slip Op. 04318 (2d Dept.,2023) the Administration for Children’s Services (ACS)
filed a petition against the mother alleging, inter alia, that she had
neglected her then7–year–old daughter ( child) by failing to provide the child
with proper supervision or guardianship in that she knew or should have known
that her then 15–year–old son ( son) with whom she left the child was sexually
abusing the child. ACS’s theory of neglect was that the mother neglected the
child by leaving the child unattended in the supervision of the son even though
the mother knew that the child had alleged that the son had sexually abused
her. ACS argued that the mother neglected the child by allowing the son to be a
caretaker of the child despite the concerns the mother had or should have had
about the son’s history of sexual inappropriateness. After the fact-finding
hearing, the Family Court determined that the testimony of each of the two
caseworkers was credible and, without specification, that the mother was
“mostly credible.” However, the court determined, in effect, that ACS was
required to prove that the son was sexually abusing the child as a prerequisite
to establishing that the mother neglected the child and that the child’s
out-of-court statements to school personnel, the child’s statements to the
caseworker that the son has had sex with her, and the statements the child made
to her godmother were uncorroborated and thus dismissed the petition. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division reversed and made a finding that the mother neglected the
child. It held that the Family Court erred in determining, in effect, that
proving sexual abuse was a prerequisite to proving neglect and that ACS had not
proven that the mother neglected the child. A finding of neglect is warranted
when a parent allows the child to be harmed or placed in substantial risk of
harm (see Family Ct Act § 1012[f][i]). A parent, who, by willful omission,
fails to protect a child, and as a consequence places the child at imminent
risk of harm, demonstrates a fundamental defect in understanding the duties and
obligations of parenthood and creates an atmosphere detrimental to the
physical, mental, and emotion well-being of the child.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Family
Court also erred in finding that the child’s out-of-court statements about
sexual abuse were uncorroborated.<span style="mso-spacerun: yes;"> </span>To
establish its burden of showing by a preponderance of the evidence that the
mother neglected the child, a petitioner may rely upon prior out-of-court
statements of the child, provided that they are properly corroborated.
Corroboration, for purposes of Article 10 proceedings, is defined to mean a]ny
other evidence tending to support the reliability of the previous statements,
including, but not limited to the types of evidence defined in this
subdivision. The Appellate Division pointed out that in Matter of Nicole V., 71
N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914, the Court of Appeals found
sufficient the testimony of the child’s caseworker, the child’s therapist, and
the child’s mother, each of whom testified to out-of-court hearsay statements
by the child describing incidents of sexual abuse by the respondent in that
action. There, the Court found that other evidence in the proceeding, including
testimony from an expert that the child’s behavior was symptomatic of a
sexually abused child, was sufficient to corroborate the child’s out-of-court
statements. The Court noted that the expert identified classic symptoms of
child abuse such as a withdrawn demeanor, a typical avoidance mechanism adopted
by persons suffering from posttraumatic stress, and the child’s knowledge of
sexual activity far beyond the norm for her young age and that the child’s
statements demonstrated specific knowledge of sexual activity. The Court also
found that the testimony of the mother that the child had developed a vaginal
rash after a visit with the respondent corroborated the child’s statements.
Notably, the evidence here, like the evidence in Matter of Nicole V., showed
that the child had specific knowledge of sexual activity despite her young age
and, when asked at the hospital about the sexual abuse, her demeanor changed
and she became quiet. Also notable in Matter of Nicole V. was the discussion
that, although the out-of-court statements of a child relating to allegations
of abuse or neglect must be corroborated to make a finding of abuse or neglect,
in certain circumstances, particularly in child abuse proceedings, where the
interests of the child are paramount, independent statements requiring
corroboration may corroborate each other. This Court has found that evidence of
a change in the demeanor of a child, sexual references by a child which are not
age-appropriate, and detailed, consistent out-of-court statements of sexual
abuse can be sufficient to corroborate a child’s out-of-court statements of
sexual abuse. Here, the child’s statements to school personnel, her godmother,
and the caseworkers were consistent and detailed about the sexual activity that
the son had engaged in with her. In addition, both the mother’s acknowledgment
at the hearing that the son admitted to her that he watched pornography in the
child’s presence and the son’s admission to the first caseworker that he had
his own pornography account directly corroborated the child’s statements that
the son watched pornography in her presence. The child’s knowledge of sexual
behavior despite her age—her depiction to school personnel of the son’s pumping
motion with his penis and her discussion of sex, which she called “polo” to the
first caseworker, describing it as where “a man and a woman they don’t have any
clothes on and they put their private parts into each other,” was further
corroboration of her out-of-court statements about the son’s sexual abuse of
her. Moreover, the records submitted into evidence demonstrated that the child,
who had been happy and talkative at the hospital, became withdrawn and quiet
when asked about the sexual abuse. Under these circumstances, the Family Court
should have found that the child’s out-of-court statements were sufficiently
corroborated by the other evidence in the record that supported the reliability
of the child’s out-of-court statements that the son had sexually abused her.<span style="color: red;"><o:p></o:p></span></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Divison, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In a proceeding alleging that the Child was
wrongfully retained in New York in violation of the Hague Convention and
seeking his return to Italy, Supreme Court erred in directing, without
conducting a hearing,<span style="mso-spacerun: yes;"> </span>that the child be
returned to Italy pending further order of the Italian court where the
submissions raised genuine issues of material fact with respect to the “grave
risk of harm” and “wishes of the child “exceptions invoked by the father.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of Luisa JJ., v. Joseph II., ---
N.Y.S.3d ----, 2023 WL 6150233, 2023 N.Y. Slip Op. 04699 (3d Dept.,2023) Luisa
JJ. ( mother) and Joseph II (father) were the parents of a child (born in
2013). In June 2019, the parties entered into a separation agreement, pursuant
to which they would share joint legal and physical custody of the child
beginning in July 2022. In November 2022, the parties entered into a
stipulation modifying that arrangement and filed the stipulation in Italy. It
provided that they would continue “[shared custody” of the child but that the
child would remain in Italy with the mother and the father would have certain
extended periods of parenting time in New York throughout the year. Shortly
after the child’s arrival in New York in December 2022, he disclosed to the
father that a minor relative of the mother’s boyfriend, who frequently stayed
in the child’s home, had been sexually abusing him for several months.
According to the father, the child stated that he told the mother about the
abuse, but she did nothing to stop it. In light of the allegations and the
child’s stated fear of returning to Italy, the father elected not to return the
child to the mother on January 5, 2023. Italian authorities also began an
investigation of the child’s allegations, and an Italian court issued an order
on January 19, 2023 “provisionally arrang[ing] the exclusive custody and
placement of the [child] with the father until the next hearing, reserving any
further measures to the outcome,” and appointing an expert to evaluate the
parties and the child. The father and the child did not return to Italy
thereafter, and, by order dated April 6, 2023, the Italian court reiterated the
need for in-person evaluations and adjourned the proceedings until December 12,
2023.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In
May 2023, the mother commenced proceeding No. 1, alleging that the child was
being wrongfully retained in New York in violation of the Hague Convention on
the Civil Aspects of International Child Abduction and seeking his return to
Italy. The father answered and interposed two defenses, provided for in the
Hague Convention, that “there is a grave risk that [the child’s] return would
expose [him] to physical or psychological harm or otherwise place the child 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”. He also moved for, among other things, an evidentiary
hearing. The father also commenced proceeding No. 2, requesting that the
Supreme Court exercise temporary emergency jurisdiction under Domestic
Relations Law § 76–c. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>On
July 28, 2023, the Supreme Court, without conducting a hearing or making any
findings of fact or conclusions of law, ordered that the child be returned to
Italy and remain there pending further order of the Italian court, subject to
the provision that the mother “not expose the child to the company of” the
boyfriend and/or the offending minor.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division reversed and remitted the matter to the Supreme Court to
commence the required hearing.<span style="mso-spacerun: yes;"> </span>It found
that the mother established that the father wrongfully retained the child in
New York. It was undisputed that Italy is the child’s country of habitual
residence. As for the retention, it was undisputed that, but for the father’s
retention, the mother would have been exercising her custody rights to the
child following a prompt return. Thus, as of January 6, 2023, the father was
wrongfully retaining the child within the meaning of the Hague Convention. The
Appellate Division agreed with the father that the Supreme Court abused its
discretion in ordering the child’s return without making further inquiry as to
the Hague Convention exceptions asserted. There is no law requiring “ ‘that
discovery be allowed or that an evidentiary hearing be conducted’ as a matter
of right in cases arising under the Convention”. That said, courts routinely
hold hearings in circumstances such as these. It is also common to conduct an
in-camera interview, direct and/or consider the results of expert evaluations,
and/or appoint and hear from an attorney for the child who is the subject of a
return petition ). Here, the submissions before the Supreme Court raised genuine
issues of material fact with respect to both exceptions invoked by the father,
warranting a hearing and some assessment of the child’s position.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>As for the grave risk exception, the father’s
affidavit reflected that the child made prompt, detailed disclosures of
extended sexual abuse experienced in Italy. According to that affidavit, the
child also reported that abuse to the mother, who did nothing to intervene or
prevent it and instead “forced” the child to continue sleeping in the same bed
as the offending minor. As a result, the child has developed a fear of
returning to the mother’s custody in Italy. Supreme Court was also provided
with a State Police incident report, which reflected that the child made
consistent allegations regarding the abuse about a week following his
disclosure to the father while interviewed by a child advocate. The submissions
further included confirmation of the Italian criminal proceedings against the
mother and the boyfriend for not only their alleged failure to prevent the
abuse but their facilitation thereof, and there was no information in the
record regarding the current status of those proceedings. Accepting these
serious allegations as true it was an abuse of discretion to summarily reject
the father’s first exception.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Court observed that a “ ‘child’s views concerning the essential question of
[his or her] return or retention may be conclusive, provided [the child] has
... attained an age and degree of maturity sufficient for [his or her] views to
be taken into account’ ” The Hague Convention, applicable only to children
under the age of 16, “does not set an age at which a child is automatically
considered to be sufficiently mature”; it is instead accepted that maturity is
a “fact-intensive and idiosyncratic ... inquiry” Although there is no
established test for assessing maturity, indications of maturity may include
“the child’s age ... [and] ability to express mixed feelings[ ] and ... plan
past obstacles” (“[A] child’s ‘generalized desire’ to remain in the United
States is ‘not necessarily sufficient to invoke the exception,’ ” but “
‘particularized objections to returning to’ the former country of residence”
should be considered.<span style="mso-spacerun: yes;"> </span>The submissions
before the Supreme Court again included the father’s affidavit attesting to the
fact that the child repeatedly advocated for himself with regard to the subject
abuse, seeking help from both of his parents even after the mother’s alleged
failure to intervene. The affidavit also made clear the child’s particularized
fear of returning to the mother’s custody given that failure and her alleged
facilitation of the sexual abuse that he suffered. Also before the court was
the transcript of a telephone call between the child and the mother, in which
the child, then nearly 10½ years old, articulately opposed the mother’s efforts
to secure his return, citing the mother’s “lies” as to why he is in New York.
Accepting the foregoing submissions as true, the father raised a genuine issue
of fact as to the child’s objection and degree of maturity, and it was
therefore a further abuse of discretion to summarily dispense with the father’s
second exception.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">September 20, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Although the facts warranting
a new hearing were<span style="mso-spacerun: yes;"> </span>outside the record on
appeal, the Appellate Division<span style="mso-spacerun: yes;"> </span>took notice
of the new facts to the extent they indicated that the record was no longer
sufficient to determine the mother’s relocation petition<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In
Matter of Emily F v Victor P., --- N.Y.S.3d ----, 2023 WL 5962329, 2023 N.Y.
Slip Op. 04634 (1<sup>st</sup> Dept.,2023) the Appellate Division declined to
disturb Family Court’s discretionary determination, made after a hearing and an
in camera examination of the child, to deny the mother’s petition to relocate
with the child to North Carolina. However, as the attorney for the child argued
on this appeal, the mother’s motion to this Court for a stay pending appeal (a
motion this Court granted), raised legitimate concerns about the adequacy of
representation by her assigned counsel at the fact-finding hearing on her
relocation petition. In her affidavit in support of her stay motion, the mother
attested that counsel failed to adequately present evidence of the financial
necessity that supported her decision to relocate. On account of these
omissions, as well as the passage of time and intervening events that occurred
since the court’s it reversed the court’s denial of the mother’s petition and
remanded for a new hearing to determine what is in the child’s best interests.
Although the facts warranting a new hearing were<span style="mso-spacerun: yes;"> </span>outside the record on appeal, given that
changed circumstances have particular significance in child custody matters, it
took notice of the new facts to the extent they indicated that the record was
no longer sufficient to determine the mother’s relocation petition (see Matter
of Michael B., 80 N.Y.2d 299, 317–318 (1992)).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Courts should normally
exercise their discretion to grant<span style="mso-spacerun: yes;"> </span>a
request for interim counsel fees made by the non-monied spouse, in the absence
of good cause articulated by the court in a written decision<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Hutchinson v Hutchinson, 2023 WL 5943914 (2d Dept.,2023) the Appellate Division
held, with regard to the Plaintiff’s renewed motion for interim counsel fees
that<span style="mso-spacerun: yes;"> </span>“courts should ... normally
exercise their discretion to grant such a request made by the non-monied
spouse, in the absence of good cause ... articulated by the court in a written
decision” (Prichep v. Prichep, 52 A.D.3d at 65–66, 858 N.Y.S.2d 667).”<span style="mso-spacerun: yes;"> </span>In support of her motion for leave to renew,
the defendant submitted the required statement of net worth and documentary
evidence of her income, which she had failed to provide in support of her prior
motion. Although the defendant did not explain her failure to provide this
evidence in support of her prior motion, the Supreme Court, should have either
declined to hear that branch of her prior motion or should have denied it
without prejudice to renew upon compliance with the applicable requirements
(see 22 NYCRR 202.16[k][2], [5][ii]. Under the circumstances presented here,
the court improvidently exercised its discretion in denying defendant’s motion
for leave to renew her prior motion pursuant to Domestic Relations Law § 237
for an award of interim counsel fees. Moreover, taking into account all of the
relevant circumstances, including the disparity in the parties’ respective
incomes, the extent to which the plaintiff’s conduct has resulted in a delay of
the proceedings, and other relief awarded to the defendant, an award of interim
counsel fees to the defendant, as the nonmonied spouse, was warranted.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Divison, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Third Department holds that
generally, joint legal custody is the preferred arrangement, unless the
evidence demonstrates that the parties are unable to work together and
communicate cooperatively.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Chad KK., v. Jennifer
LL., --- N.Y.S.3d ----, 2023 WL 5962188, 2023 N.Y. Slip Op. 04620 (3d
Dept.,2023) the parties shared joint legal custody of the children, with the
mother having primary residential custody and the father having parenting time.
Following a hearing Family Court found that there was a change in circumstances
since the 2019 order, and further determined that the best interests of the
children warranted a continuation of joint custody with,, an increase in the
younger child’s parenting time with the father. The Appellate Division held,
among other things, that generally, joint legal custody is the preferred
arrangement, unless the evidence demonstrates that the parties are unable to
work together and communicate cooperatively. The record reflected that the
relationship between the parties had been relatively contentious since their
divorce; however, although the two engaged in the occasional squabble, their
exchanges did not evidence a level of acrimony that rendered the joint custody
award unworkable.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">In demonstrating a change in
circumstances<span style="mso-spacerun: yes;"> </span>to trigger a best
interests analysis in a custody modification proceeding<span style="mso-spacerun: yes;"> </span>an order entered on consent is entitled to
less weight.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of Maranda WW., v. Michael XX., --- N.Y.S.3d
----, 2023 WL 5962196, 2023 N.Y. Slip Op. 04622 (3d Dept.,2023) the Appellate
Division observed that<span style="mso-spacerun: yes;"> </span>a party seeking
to modify a prior order of visitation must first demonstrate a change in
circumstances since the entry of such order so as to trigger an analysis as to
whether modification would serve the best interests of the child. It noted that
an order entered on consent, without a plenary hearing, is entitled to less
weight.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">September 13, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Defendant who told the Court
he intended to live-stream the proceedings, and on the adjourned date refused
to respond to question by the court whether he was recording the proceedings,
was properly held in default under 22 NYCRR 202.27.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Spata v Kelly, --- N.Y.S.3d ----, 2023 WL 5251670, 2023 N.Y. Slip Op. 04331(2d
Dept.,2023) the defendant’s parental access was suspended, pending a mental
health evaluation. When he informed the Supreme Court that he intended to
live-stream the proceedings the court informed the defendant that the only
recording of the proceedings would be made by the official court reporter. When
the parties appeared for the hearing on June 29, 2021, the Supreme Court asked
the defendant if he was recording the proceedings, and he refused to answer
based on his constitutional right against self-incrimination. The defendant was
directed to leave the courtroom, and the court ruled that he was in default
pursuant to 22 NYCRR 202.27. In an order dated July 22, 2021, the court, inter
alia, denied the defendant’s motion for parental access. The Appellate Division
affirmed. It held that defendant had no right to record the proceedings,
without proper authorization (see Civil Rights Law § 52; 22 NYCRR 29.1). Those
restrictions did not violate the United States Constitution or the New York
State Constitution. Since this case involved a civil proceeding, his
constitutional right against self-incrimination was not violated.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Family Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Family Court held that an
8-year-old can be a respondent in a<span style="mso-spacerun: yes;">
</span>family offense proceeding. Article 8 of the Family Court Act does not
dictate a minimum age for a respondent in a family offense proceeding<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In V.M., v. C.M., Slip Copy, 2023 WL
5763557 (Table), 2023 N.Y. Slip Op. 50942(U)<span style="mso-spacerun: yes;">
</span>(Fam. Ct, 2023)<span style="mso-spacerun: yes;"> </span>the Family
offense petition alleged, inter alia, that the child G.B. engaged in
inappropriate sexual behavior against the child L.M.<span style="mso-spacerun: yes;"> </span>G. B. moved to dismiss the petition based on
the fact that he was only 8 years old. He argued that due to a recent change in
the law, an eight-year-old can no longer be prosecuted as a juvenile delinquent
and therefore cannot be the subject of a family offense proceeding. Family
Court held that the fact that criminal responsibility cannot be sustained
against an 8-year-old has no bearing on a family offense proceeding in Family
Court, which has exclusive jurisdiction where the respondent would not be
criminally responsible by reason of age. Article 8 of the Family Court Act does
not dictate a minimum age for a respondent in a family offense proceeding. The
motion to dismiss the petition was denied.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">September 6, 2023 <o:p></o:p></span></span></h1>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;mso-ansi-language:
EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;mso-ansi-language:
EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><span style="mso-spacerun: yes;"> </span></span></b><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p></o:p></span></b></span></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">An agreement that states that
an obligation to maintain life insurance terminates upon the death of the
insured is meaningless.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of
Edelen, 2023 WL 5598679 (2d Dept.,2023) the Appellate Division, held that an
agreement that states that an obligation to maintain life insurance terminates
upon the death of the insured—just when the policy proceeds become payable—is
meaningless. Such would be contrary to the basic tenets of contract
interpretation that ‘a court should seek an interpretation which does not
render any term or phrase of a contract meaningless or superfluous.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;"><br />
CPLR 3101(d)(1)(i) requires a party to identify the expert witnesses the party
expects to call at trial but does not require a response at any particular time
or mandate that a party be precluded merely because of noncompliance <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Giovinazzo-Varela v Varela, --- N.Y.S.3d ----, 2023
WL 5598665 (Mem), 2023 N.Y. Slip Op. 04441 (2d Dept.,2023) the plaintiff served
the defendant with discovery demands, including a request for expert witness
disclosure (see CPLR 3101[d]). The defendant, in his response, did not state
that he intended to retain an expert. More than one year later, the defendant
advised the Supreme Court that he intended to retain a vocational expert. In
July 2020, the defendant sent the plaintiff a “Notice of Expert and Demand to
Submit to Examination,” which informed the plaintiff that he intended to call
Daniel Wolstein as a vocational expert witness at trial. He also provided the
plaintiff with Wolstein’s curriculum vitae. In March 2021, after the note of
issue and certificate of readiness were filed, the defendant served the
plaintiff with a draft copy of Wolstein’s report, dated September 21,
2020.<span style="mso-spacerun: yes;"> </span>Supreme Court, inter alia, granted
the plaintiff’s motion to preclude the defendant from offering the expert
testimony of Wolstein and his report at trial. The Appellate Division reversed.
It noted that<span style="mso-spacerun: yes;"> </span>CPLR 3101(d)(1)(i)
requires a party, upon request, to identify the expert witnesses the party
expects to call at trial but does not require a response at any particular time
or mandate that a party be precluded from proffering expert testimony merely
because of noncompliance with the statute. The defendant served his expert
notice before a trial date was set, and thus it was not untimely. Further, the
notice was not deficient. It identified the expert witness, indicated that he
was a vocational expert, and included the expert’s qualifications. Although the
notice did not include the expert’s opinion and grounds for that opinion, that
information was in the draft report that was received by the plaintiff before
the trial date was set (see CPLR 3101[d]). The defendant also complied with the
requirements set forth in 22 NYCRR 202.16(g) by disclosing his expert witness
shortly after the expert had been retained, and serving the expert report more
than 60 days before trial (see 22 NYCRR 202.16[g][2]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">August 30, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Father’s contentions
concerning the Support Magistrate’s order were<span style="mso-spacerun: yes;">
</span>unpreserved for appellate review, where the father failed to raise these
contentions in his objections before the Family Court<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Licitra v Licitra, 2023 WL 5419571 (2d Dep’t, 2023) after the Support
Magistrate dismissed the father's petition for modification of the support
order the father filed objections in which he listed the reasons provided by
the Support Magistrate for dismissing the petition, without raising any
arguments addressed to the Support Magistrate’s order. Family Court denied the
father’s objections on the ground that they were not specific within the
meaning of Family Court Act § 439(e). The Appellate Division observed that the
father’s contentions concerning the Support Magistrate’s order were unpreserved
for appellate review because he failed to raise these contentions in his
objections before the Family Court. Since the father’s objections to the
Support Magistrate’s order were not specific within the meaning of Family Court
Act § 439(e), the court properly denied his objections on that ground.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Support<span style="mso-spacerun: yes;"> </span>Order reversed where it contained language
suggesting that the mother was advised of her right to seek counsel<span style="mso-spacerun: yes;"> </span>but the transcript of the hearing contained<span style="mso-spacerun: yes;"> </span>no proof that she was advised of this right
or that she voluntarily and knowingly waived this right <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Moor v Moor, 218 A.D.3d 772, 193 N.Y.S.3d 250, 2023 N.Y. Slip Op. 03918<span style="mso-spacerun: yes;"> </span>(2d Dept.,2023) the father filed a petition
seeking, inter alia, an award of child support from the mother. After the
father appeared with counsel and the mother appeared pro se the Support
Magistrate, inter alia, in effect, granted the father’s petition and directed
the mother to pay child support. Although the order contained language
suggesting that the mother was advised of her right to seek counsel as required
by Family Court Act § 433, the transcript of the hearing contained no proof
that the mother was advised of this right or that she voluntarily and knowingly
waived this right and proceeded without counsel. The Appellate Division held
that the Support Magistrate erred in failing to advise the mother that she had
an absolute right to be represented by counsel at the hearing at her own
expense and that she was entitled to an adjournment to retain the services of
an attorney. The Support Magistrate also erred in proceeding with the hearing
without an explicit waiver of the right to counsel from the mother as there was
no word or act in the record upon which the Family Court could have concluded
that the mother explicitly waived that right. It remitted the matter to the
Family Court for a new hearing and determination.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--></span></b><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Absent unusual circumstances
an AFC cannot overrule the decision-making authority of <o:p></o:p></span></span></h1>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">a parent, and unilaterally
take an appeal in a Family Offense Proceeding where the parent who is an
aggrieved party has not done so.<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Joey L.F., v. Jerid A.F., --- N.Y.S.3d ----, 218 A.D.3d 1297, 2023 WL 4837130,
2023 N.Y. Slip Op. 04046(4<sup>th</sup> Dept., 2023) the petitioner filed a
family offense petition on behalf of her son against the respondent. Respondent
moved to dismiss the petition on the ground that it was facially insufficient.
The Attorney for the Child (AFC) appealed from an order granting the motion.
The Appellate Division held that under the circumstances of this case, the AFC
lacked standing to bring an appeal on behalf of the subject child. It observed
that generally speaking, the legislature has “demonstrated [its] preference for
natural guardians,” such as petitioner, to represent their minor children in a
proceeding. Given that preference, it held that an AFC cannot, in most Family
Court Act Article 8 proceedings, unilaterally take an appeal where a parent or
guardian who is an aggrieved party has not done so. In this case, the
petitioner did not appeal even though it was her petition that was dismissed.
It also noted that there was no evidence that the petitioner had “an interest
adverse to the” subject child that would warrant termination of her role as
guardian in the proceeding, thereby permitting the AFC to bring an appeal on
the child’s behalf. To conclude that the AFC has standing to appeal where the
petitioner has not done so would effectively force a parent—the individual who
originated the proceeding on the subject child’s behalf—to litigate a position
that they have abandoned. This would, in some cases, override a parent’s
reasonable decision-making authority. Absent unusual circumstances not present
here, an AFC cannot overrule the decision-making authority of a parent, and
take an appeal where the parent has not done so. Because the AFC lacked
standing here it dismissed the appeal.<o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;"><br />
<br />
August 23, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">A party seeking to vacate a
default ordinarily must show a reasonable excuse for his or her default and a
meritorious defense to the action or motion. In evaluating a proffered excuse,
the court should take into account “the procedural history and particular facts
of the case”.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Davis v Davis --- N.Y.S.3d ----, 2023 WL 5251144, 2023 N.Y. Slip Op. 04301 (2d
Dept.,2023) the Appellate Division reversed an order which granted a default
judgment of divorce. The parties married in 1984 and had two adult children. In
December 2018, the plaintiff commenced this action for a divorce and later
admitted that she was served with a summons with notice. The Appellate Division
pointed out that pursuant to CPLR 5015(a)(1), a party seeking to vacate a
default ordinarily must show a reasonable excuse for his or her default and a
meritorious defense to the action or motion. In matrimonial actions, it applies
a liberal policy with respect to vacating defaults. In evaluating a proffered
excuse, the court should take into account “the procedural history and
particular facts of the case”. It found that Supreme Court improvidently
exercised its discretion in denying the defendant’s motion. After admitting
that she was served with the summons with notice, the defendant voluntarily and
actively participated in the divorce proceedings, including entering into a
partial stipulation of settlement concerning issues of equitable distribution,
up until her absences from the preliminary conference on October 4, 2019, and
from the inquest on November 22, 2019. The defendant submitted affidavits
explaining that she did not receive the notice of inquest because she was in
Florida caring for a hospitalized family member for much of July 2019 through
February 2020, as well as screen shots of text messages from July 2019, between
her and the plaintiff, in which she advised the plaintiff that she would be
traveling to Florida “over the coming months” to care for her family member.
Additionally, the record did<span style="mso-spacerun: yes;"> </span>not contain
proof that the defendant was notified of any of the court dates in question in
any manner other than by mail service at her New York address, nor does the
record contain a return receipt for the certified mailing of the notice of
inquest. Moreover, upon returning to New York in February 2020, timely retained
counsel and moved to vacate the judgment of divorce. The defendant proffered a
reasonable excuse for her default. She<span style="mso-spacerun: yes;">
</span>also established a potentially meritorious defense, since despite having
comparable finances, among other things, the Supreme Court did not equalize the
parties’ retirement accounts, distributed the defendant’s pension but not the
plaintiff’s, and ordered the defendant to pay the plaintiff’s counsel fees.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Only competent, material and
relevant evidence may be admitted in a fact-finding hearing. The evidence
presented in support of the Family Offense petition, including the father’s
testimony regarding statements made to him by his children, and a report from
Child Protective Services, consisted primarily of inadmissible hearsay. He
therefore failed to establish the allegations in the petition by competent
evidence.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Wedra v Greco, --- N.Y.S.3d ----, 2023 WL 5251467, 2023 N.Y. Slip Op. 04319(2d
Dept.,2023) the Appellate Division observed that the determination of whether a
family offense was committed is a factual issue to be resolved by the Family
Court, and that court’s determination regarding the credibility of witnesses is
entitled to great weight on appeal unless clearly unsupported by the record
(see Matter of Walsh v. Desroches, 118 A.D.3d at 814, 987 N.Y.S.2d 231; Matter
of Harry v. Harry, 115 A.D.3d 858, 858, 982 N.Y.S.2d 379). ‘Only competent,
material and relevant evidence may be admitted in a fact-finding hearing’ ” (
Family Ct Act § 834). Here, the evidence presented in support of the petition,
including the father’s testimony regarding statements made to him by his
children, and a report from Child Protective Services, consisted primarily of
inadmissible hearsay. The father, therefore, failed to establish the
allegations in the petition by competent evidence. Accordingly, the Family
Court properly, in effect, denied the father’s family offense petition and
dismissed that proceeding.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Seventeen year old Respondent
in Family Offense Proceeding lacked the capacity to appear before the Family
Court, rendering the proceeding void. As an infant, he could only appear by a
parent or guardian as set forth in CPLR 1201.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="color: black;"><o:p></o:p></span></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Cohen v Escabar, .--- N.Y.S.3d ----, 2023 WL 5251525, 2023 N.Y. Slip Op. 04313
(2d Dept.,2023) Jamie Cohen commenced this family offense proceeding against
her ex-boyfriend, Louis Escabar, in 2021. At the time, Cohen was 16 years old
and Escabar was 17 years old. Escabar did not appear for the hearing, but his
attorney participated in his absence. The court found that Cohen had
established that Escabar committed a family offense and issued an order of
protection, from which Escabar appeals. The Appellate Division held that the
order of protection was not entered upon Escabar’s default. Although Escabar
failed to appear at the hearing, his counsel appeared on his behalf and
participated in the hearing. It also held that Escabar lacked the capacity to
appear before the Family Court, rendering the proceeding void. and reversed the
order.<span style="mso-spacerun: yes;"> </span>It noted that a natural person’s
status as an infant, could disqualify that individual from seeking relief in
court. An “infant” is “a person who has not attained the age of eighteen years”
(CPLR 105[j]; see Family Ct Act § 119[c]). “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, or, if the infant is married, by an adult spouse residing with the
infant” (CPLR 1201).<span style="mso-spacerun: yes;"> </span>Escabar, who was 17
years old when Cohen commenced this proceeding, was an infant; Family Ct Act §
119[c]). As an infant, he could only appear by a parent or guardian as set
forth in CPLR 1201, and he lacked the capacity to appear on his own behalf .
Neither the presence of Escabar’s mother in court, nor the assignment of
counsel, was sufficient to satisfy CPLR 1201. Although Escabar’s mother was
present at a prehearing court date, the court expressly prohibited her from
appearing on Escabar’s behalf. Counsel’s representation of Escabar contravened
CPLR 321 and 1201, and it therefore had “no legal effect”.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Family Court follows Rule of
First and Third Departments that the ICPC “does not apply” to out-of-state
noncustodial parents. It held that<span style="mso-spacerun: yes;"> </span>Court
can issue a Temporary (or final) Custody Order providing custody to a relative
who does not reside in New York without invoking the provisions of the
Interstate Compact on the Placement of Children where the child has not been
placed in foster care. <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="color: black;"><o:p></o:p></span></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Peggy RR., v. JenellL RR.,--- N.Y.S.3d ----, 2023 WL 5282677, 2023 N.Y. Slip
Op. 23252 (Family Court,2023) the question was whether the Court can issue a
Temporary (or final) Custody Order providing custody to a relative who does not
reside in the State of New York without invoking the provisions of the
Interstate Compact on the Placement of Children where the child has not been
placed in foster care? The Court answered the question in the affirmative. The
facts were stated by the Court as follows:<span style="mso-spacerun: yes;">
</span>Petitioner (maternal grandmother) filed a petition under Article 6 of
the Family Court Act prior to the initiation of any application or petition
being filed under Article 10 of the Family Court Act; the subject child was
born in, and has since resided in the State of New York from the time of her
birth; at Peggy RR. resides and is otherwise domiciled in the State of West
Virginia; and that the subject child has never been placed in foster care or in
the custody of the Department of Social Services or any other agency; and<span style="mso-spacerun: yes;"> </span>that the Department of Social Services
attempted to submit a referral to the New York State Office of Children and
Family Services - ICPC office to initiate a home study under the ICPC, and the
NYS OCFS - ICPC office refused to accept the referral citing their position
that the circumstances and procedural history of this case do not invoke the
provisions of the ICPC. The Court noted that D.L. v. S.B., 39 N.Y.3d 81, 86,
181 N.Y.S.3d 154, (2022) the Court of Appeals observed that the Appellate
Division Departments have disagreed regarding the applicability of the ICPC to
noncustodial parents who reside outside New York. The Second Department has
repeatedly applied the ICPC to out-of-state noncustodial parents, holding that
where the custody of a child who is under the supervision of the Commissioner
of Social Service is transferred to the custody of a parent or relative in
another state, the provisions of the ICPC apply” (Matter of Alexus M. v.
Jenelle F., 91 A.D.3d 648 [2d Dept. 2012]). By contrast, the First Department
has expressly declined to follow the Second Department’s interpretation of the
ICPC and, instead, has held that the ICPC “does not apply” to out-of-state
noncustodial parents, reasoning that the plain language of the ICPC limits its
application to placements in foster care or adoptive settings (Matter of
Emmanuel B. [Lynette J.], 175 A.D.3d 49, 52,[2019]. The Third Department
recently endorsed the First Department’s approach, albeit in dicta (see Matter
of David Q. v. Schoharie County Dept. of Social Servs., 199 A.D.3d 1179, 1181
[3d Dept. 2021]).The Court found that the case at bar was not one where there
has been a foster care placement, and as a result, the provisions of the
Interstate Compact on the Placement of Children are not invoked.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">August 16, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><!--[if supportFields]><span lang=EN-CA
style='font-size:11.0pt;mso-fareast-font-family:Calibri;mso-fareast-theme-font:
minor-latin;mso-ansi-language:EN-CA;mso-bidi-font-weight:normal;text-decoration:
none;text-underline:none'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-size:11.0pt;mso-fareast-font-family:Calibri;mso-fareast-theme-font:
minor-latin;mso-ansi-language:EN-CA;mso-bidi-font-weight:normal;text-decoration:
none;text-underline:none'><span style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span></span><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Grandparents established the existence of “other like
extraordinary circumstances” so as to afford them standing where, among other
things, child lived with the grandparents for his entire life, expressed a
strong desire to continue residing with them; parent suffered from severe
substance abuse and were unable to care for the child <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Tuttle v Worthington,<span style="mso-spacerun: yes;"> </span>---
N.Y.S.3d ----, 2023 WL 5160120, 2023 N.Y. Slip Op. 04282 (4<sup>th</sup> Dept.,
2023)<span style="mso-spacerun: yes;"> </span>Petitioner mother commenced a
proceeding for modification of a prior order, entered more than three years
earlier, that awarded joint custody of the subject child to her, the child’s
father, and respondents Kristine Worthington and Donald Worthington, i.e., the
child’s paternal grandparents, with “primary placement” of the child with the
grandparents and “secondary placement” with the mother and with the father. In
her amended petition for a change in custody, the mother sought modification of
the child’s placement with primary placement of the child awarded to the
mother.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">Following a hearing, Family Court determined that the
mother established a change in circumstances since entry of the prior order and
that the grandparents failed to meet their burden of establishing extraordinary
circumstances, without which they lacked standing to seek custody. The court
determined that there was “no extended disruption of custody” because the
mother had joint legal custody of the child since entry of the prior order and
maintained consistent contact with him as well as secondary placement. The
court further determined that there was no “abandonment or prolonged
separation,” and, thus, no extraordinary circumstances. The Appellate Division
held that<span style="mso-spacerun: yes;"> </span>those are not the only grounds
upon which nonparents may establish standing to seek custody. The grandparents
established the existence of “other like extraordinary circumstances” so as to
afford them standing (Bennett, 40 N.Y.2d at 544, 387 N.Y.S.2d 821, 356 N.E.2d
277). It was undisputed that the child, who was eight years old at the time of the
hearing, had lived with the grandparents for his entire life in the only home
he has ever known; the child expressed a strong desire to continue residing
with his grandparents and the AFC adhered to that position on appeal; the
mother and the father both suffered from severe substance abuse problems for
years and were unable to care for the child on their own; the mother failed to
contact the child for a period of 18 months before resuming visitation in
January 2018; the child’s half-sister also resided with the grandparents and
the child developed a sibling relationship with her; and the grandparents have
taken care of the child for most of his life and provided him with stability.
Under the circumstances, it concluded that, even if the prolonged separation
alone is entitled to little significance here, the combination of that factor
along with others present on this record sufficiently established the existence
of extraordinary circumstances, and that the court’s contrary determination is
not supported by a sound and substantial basis in the record. It<span style="mso-spacerun: yes;"> </span>reversed and remitted<span style="mso-spacerun: yes;"> </span>the matter for a new hearing.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Father’s appeal had to be
dismissed. Although he participated in the fact-finding hearing and his status
as an intervenor was not contested, he was still a nonrespondent parent who has
a limited statutory role and narrow rights under Family Ct Act § 1035(d) which
applied on appeal.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In<span style="mso-spacerun: yes;"> </span>Matter of
Rosalynne AA. --- N.Y.S.3d ----, 2023 WL 5108737, 2023 N.Y. Slip Op. 04242 (3d
Dept.,2023) after the mother and the father separated, the mother relocated
from Florida to New York with the children, and they resided in a single-wide
trailer with respondent Thomas BB. ( boyfriend), with whom the mother had a
relationship. Following a disclosure by the younger child that the boyfriend
had inserted his fingers into her vagina, petitioner commenced proceeding No. 2
alleging neglect and sexual abuse by the boyfriend. Petitioner also commenced
proceeding No. 1 alleging neglect by the mother based upon the allegations in
proceeding No. 2, as well as allegations pertaining to the conditions of the
home and the hygiene of the children. With the mother’s consent, the children
were then temporarily placed in the care of the father. A fact-finding hearing
ensued, at the conclusion of which petitioner moved to conform the pleadings to
the proof by adding an allegation of educational neglect. In a July 2019 corrected
order, Family Court granted petitioner’s motion and found, in proceeding No. 1,
that the mother had neglected the children. The court dismissed the entire
petition in proceeding No. 2. In a December 2019 order entered after a
dispositional hearing in proceeding No. 1, the court placed custody of the
children with the father for a period of one year and permitted him to relocate
the children to Florida. Petitioner, the mother and the father separately
appealed<span style="mso-spacerun: yes;"> </span>from the July 2019 corrected
order. The mother also appealed from the December 2019 order. The Appellate
Division held as an initial matter, that the father’s appeal from the July 2019
corrected order had to be dismissed. Although the father participated in the
fact-finding hearing and his status as an intervenor was not contested, he was
still a nonrespondent parent. As a nonrespondent parent, the father has a
limited statutory role and narrow rights under Family Ct Act § 1035(d) to: (1)
pursue temporary custody of his children during fact-finding, and (2) seek
permanent custody during the dispositional phase. In view of this limited role,
which applied on appeal, the father’s arguments directed toward the dismissal
of the petition in proceeding No. 2 and the finding of neglect against the mother
would<span style="mso-spacerun: yes;"> </span>not be considered. Furthermore,
given that the father appealed only from the July 2019 corrected order and was
awarded temporary custody of the children prior to the fact-finding hearing, he
was not aggrieved thereby .<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Supreme Court erred in
granting, without a hearing, defendant’s cross-motion to enforce the terms of
the modification agreement where irregularities on the face of the modification
agreement itself called into doubt its authenticity. <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Del Vecchio v Del Vecchio,<span style="mso-spacerun: yes;"> </span>--- N.Y.S.3d ----, 2023 WL 5064229, 2023 N.Y.
Slip Op. 04189 (2d Dept.,2023) the parties were married in 1998 and had one
child together, who<span style="mso-spacerun: yes;"> </span>is now emancipated.
The parties were divorced pursuant to a judgment dated February 22, 2013. The
judgment of divorce incorporated, but did not merge, a separation agreement
dated November 28, 2012. The separation agreement<span style="mso-spacerun: yes;"> </span>provided, among other things, that it could
not be orally modified, and that “[only a statement in writing, signed and
acknowledged with the same formality as this Agreement,” would modify the
agreement. In August 2019, the plaintiff moved to, inter alia, hold the
defendant in contempt due to his failure to pay maintenance and failure to
cooperate in the sale of the marital residence, for an award of $52,000 in
maintenance arrears from December 2012 to November 2017, to direct the
defendant to immediately list the marital residence for sale, to direct the
defendant to immediately return to the plaintiff certain items of personal
property that remained in the marital residence, and for an award of counsel
fees. The defendant cross-moved, inter alia, to enforce the terms of a written
modification agreement dated February 27, 2013. The purported modification
agreement proffered by the defendant read as follows: “This letter is an
official document to guarantee [the plaintiff] and [the defendant] equal
sharing of the profit of the home upon its final sale. Furthermore, it also
guarantees that upon [the plaintiff’s] residing in the residence of a
significant other, [the defendant] is no longer obligated to pay [the
plaintiff] the court-ordered $900 per month for maintenance.” In an affidavit
in support of his cross-motion, the defendant attested that the modification
agreement was intended to memorialize the parties’ oral agreement to postpone
the sale of the former marital residence until the parties’ child completed
high school in June 2015, and to terminate the defendant’s maintenance
obligation, in exchange for the plaintiff receiving a greater equitable
distribution award from the parties’ equal division of the proceeds from the
sale of the marital residence due to the payments that the defendant had
continued to make on the property’s mortgage. The plaintiff submitted a reply
affidavit in which she conceded that she had orally agreed that the defendant
could “postpone the start” of his maintenance payments until after their child
graduated high school, but after the child’s graduation occurred in June 2015,
the defendant never remitted any payments. The plaintiff denied that she had
agreed to any other modifications, denied that she had executed the alleged
written modification agreement, and offered to produce witnesses to testify
that her purported notarized signature on the written modification agreement
was forged.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Supreme Court denied the plaintiff’s motion and granted the defendant’s
cross-motion to the extent of, inter alia, finding that the modification
agreement was valid and enforceable. The Appellate Division held that<span style="mso-spacerun: yes;"> </span>Supreme Court erred in granting, without a
hearing, the branch of the defendant’s cross-motion which was to enforce the
terms of the modification agreement and in denying, without a hearing, the
branch of the plaintiff’s motion which was for an award of maintenance arrears.
It held that while something more than a bald assertion of forgery is required
to create an issue of fact contesting the authenticity of a signature here,
irregularities on the face of the modification agreement itself called into
doubt its authenticity. The parties’ signatures, which were sworn before a
notary but not acknowledged, reflected that the plaintiff allegedly signed the
modification agreement on March 29, 2011, two years before the date of the
agreement, and the defendant allegedly signed the agreement on February 4,
2014, three years after the plaintiff and one year after the date of the
agreement. Moreover, the modification agreement was not acknowledged, as
required by the plain terms of the parties’ separation agreement. Under such
circumstances, it was error to conclude that no triable issue of fact existed
as to the validity and enforceability of the written modification agreement.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><a name="_Hlk143071701"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></a></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk143071701;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk143071701;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></span></p>
<h1 style="line-height: normal;"><span style="mso-bookmark: _Hlk143071701;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Where<span style="mso-spacerun: yes;"> </span>neither the petition nor the
supporting depositions provided sworn, nonhearsay allegations as to a physical
injury sustained by the complainant, that count was jurisdictionally defective
and had to be dismissed for failure to comply with Family Ct Act § 311.2[3]).<o:p></o:p></span></span></span></h1>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><span style="mso-bookmark: _Hlk143071701;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><span style="mso-bookmark: _Hlk143071701;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In the Matter of
Yacere D. --- N.Y.S.3d ----, 2023 WL 4482188, 2023 N.Y. Slip Op. 03781(2d Dept.,2023)
a juvenile delinquency proceeding Family Court, the<span style="mso-spacerun: yes;"> </span>Appellate Division held that count 5 of the
petition, which alleged that he committed an act which, if committed by an
adult, would have constituted the crime of assault in the third degree, was
jurisdictionally defective. For a juvenile delinquency petition, or a count
thereof, to be sufficient on its face, the factual part of the petition or of
any supporting depositions must set forth sworn, nonhearsay allegations
sufficient to establish, if true, every element of each crime charged and the
alleged delinquent’s commission thereof” (Family Ct Act § 311.2[3]). Such
allegations must be set forth in the petition or the supporting depositions
(see Family Ct Act § 311.2[3]). “The failure to comply with this requirement
constitutes a nonwaivable jurisdictional defect that deprives the court of
subject matter jurisdiction to entertain the petition or count” . Here, neither
the petition nor the supporting depositions provided sworn, nonhearsay allegations
as to a physical injury sustained by the complainant named in count 5.
Accordingly, that count was jurisdictionally defective and had to be dismissed.<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><span style="mso-bookmark: _Hlk143071701;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk143071701;"></span>
</b></span><p class="MsoNormal" style="mso-pagination: widow-orphan; tab-stops: .5in;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin;"><span style="font-family: arial;"><span style="mso-tab-count: 2;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Allocution in juvenile
delinquency proceeding<span style="mso-spacerun: yes;"> </span>was fatally
defective because Family Court failed to comply with Family Ct Act § 321.3(1)
where neither respondent nor his mother were informed of “the exact nature of his
placement outside of the home or its possible duration<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of Tashawn MM.,--- N.Y.S.3d ----, 2023 WL
4353583, 2023 N.Y. Slip Op. 03745 (3d Dept.,2023) a juvenile delinquency
proceeding was commenced against respondent in March 2022, alleging that
respondent had committed acts in November 2021 that, if committed by an adult,
would constitute the crimes of burglary in the second degree and criminal
possession of stolen property in the third degree. Thereafter, in satisfaction
of the petition, respondent admitted to acts which, if committed by an adult,
would constitute the lesser offense of criminal possession of stolen property
in the fourth degree. Family Court issued an order finding that respondent had
engaged in that conduct, as well as an order transferring the proceeding to
Tompkins County for disposition. Following a dispositional hearing in Tompkins
County, Family Court placed respondent in the custody of the Office of Children
and Family Services for a period of 12 months. The Appellate Division reversed.
It found that the petition was jurisdictionally adequate to support
respondent’s admission to acts constituting the lesser offense of criminal
possession of stolen property in the fourth degree. However, as petitioner
conceded, the allocution in which respondent admitted to those acts was fatally
defective because Family Court failed to comply with the requirements of Family
Ct Act § 321.3(1). At the time of his admission, Family Court commented on some
possible dispositions including being “placed outside of [his] home ... for a
period of time.” Neither respondent nor his mother were informed of “the exact
nature of his placement outside of the home or its possible duration” (Family
Ct Act § 321.3[1][c]). Inasmuch as the provisions of Family Ct Act § 321.3(1)
are mandatory and cannot be waived, the order had to<span style="mso-spacerun: yes;"> </span>be reversed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">August 9, 2023<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">The Parties should be given an
opportunity to present any arguments concerning an<span style="mso-spacerun: yes;"> </span>application to withdraw a Neglect Petition,
such as the effect upon a child’s welfare, whether prejudice should attach to
the discontinuance or whether another party should be permitted to commence a
neglect proceeding.<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b style='mso-bidi-font-weight:normal'><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b
style='mso-bidi-font-weight:normal'><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Lauren X.,,--- N.Y.S.3d
----, 2023 WL 4353635, 2023 N.Y. Slip Op. 03732 (3d Dept.,2023) in May 2021,
petitioner a neglect petition alleging, among other things, that the child had
been completely absent from school since the end of March 2021. During the
pendency of the proceedings, the petitioner interviewed the child in August
2021. Then, on December 6, 2021, the petitioner transmitted a letter by email
to Family Court, counsel for the respondent, counsel for the father and the
attorney for the child (AFC) requesting to withdraw the petition without
prejudice and to cancel the fact-finding hearing scheduled for December 14,
2021. That same day, the court issued an order granting the petitioner’s
request and dismissing the neglect petition. The AFC appealed. The Appellate
Division observed that whether an application to discontinue an action pursuant
to CPLR 3217(b) should be granted lies within the sound exercise of the court’s
discretion, and such should be entered upon terms and conditions, as the court
deems proper”. It held that Family Court erred in granting the petitioner’s
application to dismiss the neglect petition without allowing any time for
objections to be raised. Ordinarily, a party cannot be compelled to litigate
and, absent special circumstances, discontinuance should be granted” (Tucker v.
Tucker, 55 N.Y.2d 378, 383,[1982]). However, one should be given an opportunity
to present any such special circumstances or any other arguments concerning the
application, such as the effect upon a subject child’s welfare, whether
prejudice should attach to the discontinuance or whether another party should
be permitted, in the court’s discretion, to commence a neglect proceeding (see
Family Ct Act § 1032[b]). Because Family Court dismissed the petition without
allowing the parties, including the father as a nonrespondent parent, to
present any arguments regarding the petitioner’s application for a
discontinuance, it remitted the matter to allow them the opportunity to do so.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Family Court may adjourn a
fact-finding hearing for good cause shown on its own motion, and such
determination is a matter resting within the court’s sound discretion<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Nina TT, --- N.Y.S.3d ----, 2023 WL 4353601, 2023 N.Y. Slip Op.
03737(3d Dept.,2023) the Appellate Division affirmed an order which granted
petitioner’s application to adjudicate the subject child to be abandoned, and
terminated respondent’s parental rights. It rejected the Respondents argument
that<span style="mso-spacerun: yes;"> </span>that, even though he did not
request an adjournment, Family Court abused its discretion in failing to
adjourn the fact-finding hearing on its own initiative to allow him to testify.
It noted that Family Court may adjourn a fact-finding hearing for good cause
shown on its own motion,” and such determination is a matter resting within the
court’s sound discretion (Family Ct Act § 626[a]). The right to be present is
not absolute and must be balanced with the child’s right to a prompt and
permanent adjudication. Here, respondent failed to appear at the continued
fact-finding hearing that had been scheduled for over a month, despite speaking
with his counsel the morning of the hearing and advising her that he would be
in attendance. Although he also told her that he was attending a funeral that
morning, he did not request an adjournment or raise such a claim at the
dispositional hearing that he later attended. The continuation of the
fact-finding hearing was pursuant to his request after he withdrew his
intention to sign prepared conditional judicial surrender documents. In
scheduling the continuation, Family Court made it clear that the matter would
proceed in his absence and reminded him of the same two days before the
hearing. More importantly, the child had been in foster care since before her
first birthday and remained for over three years with a family that desired to
adopt her. Respondent had not had contact with the child since November 2018
and the abandonment proceeding continued for nine months, where respondent
failed to appear on two occasions and failed to contact his assigned counsel
before a third appearance resulting in an adjournment.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11.0pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Failure to advise Respondent
of right to be present required reversal of delinquency adjudication.
Respondents in juvenile delinquency proceedings have a constitutional and
statutory right to be present at all material stages of court proceedings,
including fact-finding hearings<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Timar P.,<span style="mso-spacerun: yes;"> </span>--- N.Y.S.3d ----,
217 A.D.3d 1591, 2023 WL 4284925, 2023 N.Y. Slip Op. 03654 (4<sup>th</sup>
Dept.,2023) a juvenile delinquency proceeding, the Appellate Division agreed
with the Respondent that the court violated his constitutional and statutory
right to be present at the fact-finding hearing. It reversed the order and
remited the matter to Family Court for further proceedings on the petition.
Respondents in juvenile delinquency proceedings have a constitutional and
statutory right to be present at all material stages of court proceedings,
including fact-finding hearings (see US Const 6th Amend; NY Const, art I, § 6;
Family Ct Act § 341.2 [1])). Respondents may, however, waive the right to be
present at such proceedings. In order to effect a voluntary, knowing and
intelligent waiver, the respondent must, at a minimum, be informed in some
manner of the nature of the right to be present at the fact-finding hearing and
the consequences of failing to appear’ for that hearing. Here, the court did
not advise respondent that he had a right to be present at the fact-finding
hearing and that the consequence of his failure to appear would be that the
fact-finding hearing would proceed in his absence. It therefore concluded on
the record that there was no voluntary, knowing, and intelligent waiver of
respondent’s right to be present at the hearing.</span><o:p></o:p></span></b></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-91243338677265666872023-08-06T10:46:00.004-04:002023-08-06T17:16:22.852-04:00The New York Matrimonial Trial Handbook by Joel R. Brandes<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://www.nysdivorce.com/uploads/8/1/3/4/81349156/published/matrimonial-trial-handbook-edited-cover.jpg?1646495948" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="144" data-original-width="106" height="144" src="https://www.nysdivorce.com/uploads/8/1/3/4/81349156/published/matrimonial-trial-handbook-edited-cover.jpg?1646495948" width="106" /></a></div><p class="MsoNormal" style="background: white;"><b style="background-color: transparent; font-family: arial;"><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; color: red; font-size: 11pt;">The New York
Matrimonial Trial Handbook </span><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; font-size: 11pt;">is a “how to” book. It focuses on the procedural and
substantive law, as well as the law of evidence, that an attorney must have at
his or her fingertips when trying a matrimonial action and custody case. The
book deals extensively with the testimonial and documentary evidence necessary
to meet the burden of proof. There are <i><span style="color: red;">thousands of
suggested questions </span></i>for the examination and cross-examination of the
parties and expert witnesses at trial. It is available in </span><a href="https://store.bookbaby.com/book/new-york-matrimonial-trial-handbook1"><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; font-size: 11pt;">hardcover</span></a><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; font-size: 11pt;">, as
well as </span><a href="https://www.nysdivorce.net/new-york-matrimonial-trial-handbook.html"><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; font-size: 11pt;">Kindle and electronic</span></a><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; font-size: 11pt;"> editions. </span><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; color: #0a2bf0; font-size: 11pt;">It
is also available from </span><a href="https://www.amazon.com/s/ref=nb_sb_noss/142-4975004-3615469?url=search-alias%3Dstripbooks&field-keywords=matrimonial+trial+handbook" target="_blank"><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; color: red; font-size: 11pt;">Amazon</span><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; color: #5199a8; font-size: 11pt; text-decoration-line: none;">, </span></a><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; color: #0a2bf0; font-size: 11pt;"> and other
booksellers. </span><span style="background-attachment: initial; background-clip: initial; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; font-size: 11pt;">See </span><a href="https://www.nysdivorce.net/uploads/8/1/3/4/81349156/new_york_matrimonial_trial_handbook_contents.pdf" target="_blank"><span style="font-size: 11pt;">Table of Contents. </span></a></b></p><p class="MsoNormal"><b style="font-family: arial;"><a href="https://www.amazon.com/New-York-Matrimonial-Trial-Handbook/dp/B0BW2GFT9Y/ref=sr_1_1?crid=1JTFPXWCAOAP&keywords=NEW+YORK+MATRIMONIAL+TRIAL+HANDBOOK+%3A+2023+Cumulative+Update&qid=1677880707&s=digital-text&sprefix=new+york+matrimonial+trial+handbook+2023+cumulative+update+%2Cdigital-text%2C84&sr=1-1-catcorr&ufe=app_do%3Aamzn1.fos.f5122f16-c3e8-4386-bf32-63e904010ad0" target="_blank"><span style="background: white; color: #f00642; font-size: 11pt;">The New York Matrimonial Trial Handbook 2023
Cumulative Update</span><span style="background: white; color: #5199a8; font-size: 11pt;"> </span><span style="background: white; color: black; font-size: 11pt; mso-themecolor: text1;">is available on Amazon</span></a><u><span style="background: white; color: #7b8c89; font-size: 11pt;"> </span></u><span style="background: white; font-size: 11pt;">in hardcover,
paperback, Kindle, and electronic editions</span><span style="background: white; font-size: 11pt;">.</span><span style="font-size: 11pt;"> <span style="background: white;">This update includes changes in the law and important cases
decided by the New York Courts since the original volume was published. It
brings the text and case law up to date through and including December 31,
2022, and contains additional questions for witnesses. </span>See </span><a href="http://www.nysdivorce.net/uploads/8/1/3/4/81349156/table_of_contents_new_york_matrimonial_trial_handbook_2023_cumulative_update.pdf" target="_self" title="Consulting Services Bookstore Website"><span style="font-size: 11pt;">Table of
Contents.</span></a></b></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-5255961994031197322023-08-06T08:40:00.183-04:002023-08-06T17:41:37.003-04:00Recent Decisions and Legislation, August 2, 2023<p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">August 2, 2023</span></p><p><span style="font-family: arial;">Appellate Division, First Department</span></p><p><span style="font-family: arial;">Age 29 Law allows unmarried children through age 29, regardless of financial dependence, to be covered under a parent’s group health insurance policy </span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In B.D.,v. E.D.,--- N.Y.S.3d ----, 2023 WL 4770159, 2023 N.Y. Slip Op. 03971(1st Dept, 2023) the Appellate Division observed New York’s Age 29 Law, which was effective approximately one year before the Affordable Care Act, amended various sections of the State’s Insurance Law to “expand[ ] access to health insurance by allowing unmarried children through age 29, regardless of financial dependence, to be covered under a parent’s group health insurance policy. Specifically, the Age 29 Law “expands access to health insurance through a COBRA-like benefit for young adults by requiring commercial insurers, non-profit corporations, and HMOs to offer an option to continue coverage for unmarried young adults through age 29, regardless of financial dependence, under a parent’s group health insurance policy. Under the Age 29 Law, a parent’s health insurance serves as the basis for coverage for an eligible adult child who has otherwise aged off of the parent’s policy.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;">Child Support Order reversed where Support Magistrate erred in failing to advise the pro se mother that she had “an absolute right to be represented by counsel at the hearing at her own expense and that she was entitled to an adjournment to retain the services of an attorney</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Moor v Moor, --- N.Y.S.3d ----, 2023 WL 4751946, 2023 N.Y. Slip Op. 03918 (2d Dept.,2023) the parties had previously agreed to share custody of the child and to waive an award of child support from each other. However, in October 2021, the father filed a petition seeking, inter alia, an award of child support from the mother given the change in circumstances since he had sole custody of the child since July 2020. The parties appeared by telephone before a Support Magistrate on February 3, 2022. The father appeared with counsel and the mother appeared pro se. the Support Magistrate, inter alia, in effect, granted the father’s petition and directed the mother to pay child support of $319.32 bi-weekly. Although the order contained language suggesting that the mother was advised of her right to seek counsel as required by Family Court Act § 433, the transcript of the hearing contained no proof that the mother was advised of this right or that she voluntarily and knowingly waived this right and proceeded without counsel. Family Court, denied the mother’s objections and directed the mother to pay child support of $319.32 bi-weekly. The Appellate Division held that the Support Magistrate erred in failing to advise the mother that she had “an absolute right to be represented by counsel at the hearing at her own expense and that she was entitled to an adjournment to retain the services of an attorney. The Support Magistrate further erred in proceeding with the hearing without an explicit waiver of the right to counsel from the mother as there is no word or act in the record upon which the Family Court could have concluded that the mother explicitly waived that right. It remitted the matter to the Family Court for a new hearing and determination.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">There is no express requirement to submit certified copies of birth certificates or death certificates in a SIJS proceeding under Family Court Act § 661(a).</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Anuar S.A.O. --- N.Y.S.3d ----, 217 A.D.3d 869, 2023 WL 4095927, 2023 N.Y. Slip Op. 03353 (2d Dept.,2023) Petitioner, a friend of the minor child’s family, commenced aproceeding to be appointed as the guardian of the child and subsequently moved for the issuance of an order enabling the child to petition the United States Citizenship and Immigration Services (USCIS) for special immigrant juvenile status. The Family Court dismissed the guardianship petition and denied the motion. The Appellate Division held that the family court’s failure to conduct a hearing or consider the child’s best interests before dismissing the guardianship petition and denying the petitioner’s immigration-related motion was error requiring remittance. It held that contrary to the Family Court’s determination, there is no express requirement to submit certified copies of birth certificates or death certificates in a proceeding such as this under Family Court Act § 661(a). Since the court dismissed the petition without conducting a hearing or considering the child’s best interests, it remitted the matter to the Family Court for a new determination.</span></span></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><span style="font-family: arial;">The rebuttable presumption that counsel fees shall be awarded to the less monied spouse, can be rebutted given the amount of the equitable distribution, maintenance, and substantial interim award.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In McGovern v McGovern, --- N.Y.S.3d ----, 2023 WL 4769188, 2023 N.Y. Slip Op. 03956 2023 WL 4769188 (3d Dept.,2023) Plaintiff (wife) and defendant ( husband) were married in 1997 and had two children (born in 1999 and 2002). In 2014, the husband abandoned the marital residence, but the parties reconciled until 2017, when the husband again left the marital residence, and the wife commenced this action for divorce. The wife thereafter moved for an order of temporary support, requesting temporary maintenance, child support, counsel fees, and a portion of the fee to hire a forensic accountant to review the husband’s finances. Based on the parties’ expenses, Supreme imputed an income of $300,000 to the husband and ordered that the husband pay the wife $2,000 a month in maintenance and $3,275.95 a month in child support. The court also ordered the husband to pay the wife $7,100 in counsel fees and $5,000 toward the retention of the wife’s forensic accountant. Following the trial, Supreme Court found that the pendente lite order was based on erroneous representations in the parties’ respective statements of net worth, imputed an income of $85,000 to the husband, and recalculated the child support and maintenance awards. The court awarded the wife the marital residence and ordered the husband to pay the wife a distributive award of $419,517.45 – equivalent to 45% of the value of his businesses, minus certain credits such as his overpayment of pendente lite child support and maintenance. The court also ordered him to pay child support for the youngest child until her emancipation. The Appellate Division affirmed.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division, inter alia, rejected the wife’s argument that the value of her 45% distributive award should have been higher, as McGovern Enterprises should have been valued at $2,060,000, the sum of the appraised value of the buildings it owned, rather than the $1,280,666 valuation Supreme Court determined based on testimony and a report by the husband’s tax expert. Supreme Court found that the wife provided only the valuation of the buildings themselves, which did not equate to a valuation of McGovern Enterprises as a whole. Instead, the court relied on the tax expert’s testimony that, while McGovern Enterprises would recoup $1,984,000 in a hypothetical sale of its properties, it would incur $703,334 in taxes from such a sale, leaving the value of the business at the difference, $1,280,666. The expert’s calculations, accounting both for the appraised value of McGovern Enterprises’ buildings and the costs of liquidating these assets, painted a more complete picture of the business’s value than did the mere buildings’ appraised values. As the wife “presented no expert testimony that would support a different valuation,” and Supreme Court credited the expert’s report, the wife failed to prove that McGovern Enterprises was worth more than $1,280,666 </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division rejected the wife’s request to reverse Supreme Court’s determination that the husband’s self-directed IRA, which included 970 Broadway, Albany was his separate property. Separate property includes “property acquired before marriage,” as well as “property acquired in exchange for ... separate property”. The testimony of the husband and the bookkeeper, which the Supreme Court found credible, showed that the husband’s self-directed IRA was established using funds transferred from an account he established in 2005, which itself contained funds from an account he created in 1983, before the parties’ marriage. While the husband did transfer money between his other accounts and 970 Broadway, the record evidence demonstrated that those sums were rent owed to 970 Broadway. Further, the husband’s testimony, as well as his bank records, showed that he made no contributions to his self-directed IRA during the marriage. Therefore, Supreme Court did not err in determining that his self-directed IRA, which included 970 Broadway’s properties, was the husband’s separate property, as he showed that the properties owned by 970 Broadway were acquired with premarital assets.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The wife challenged the Supreme Court’s determination that she was not entitled to maintenance, claiming that she should have been awarded $3,108 in monthly maintenance for eight years, retroactive to the date of commencement, based on the husband’s $300,000 imputed income and the marital standard of living. The record supported Supreme Court’s determination that the wife was not entitled to maintenance. The wife was employed at the time of trial, earning $76,000 a year with healthcare benefits, and she was awarded the marital residence, which was fully paid off other than a $100,000 line of credit taken out on the property by the parties. The husband’s imputed income was $85,000, and the evidence showed that he had taken a $200,000 loan from 970 Broadway to pay for the pendente lite maintenance. Based upon the Supreme Court’s proper consideration of the factors and the totality of the circumstances herein – including the distributive award of $419,517.45 – it did not abuse its discretion in declining to award maintenance to the wife.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span> Supreme Court found that, based on the husband’s imputed $85,000 yearly salary and the mother’s $76,000 yearly salary, the husband was responsible for $1,635.36 monthly in child support until the oldest child’s emancipation in May 2020, and, following her emancipation, $1,112.05 monthly for support of the youngest child. However, because the husband had paid his pendente lite child support obligation, premised on an improperly-imputed income of $300,000, until August 2021, well past the oldest child’s emancipation, the court determined that he was entitled to an $86,552.97 credit for child support. The court then found that this overpayment covered the husband’s obligation for both children’s college expenses but not for their unpaid medical expenses – $5,292.45. Based on these calculations, the court subtracted the credit from the wife’s distributive award and ordered the husband to pay the children’s unpaid medical expenses and $1,112.05 in monthly child support for the youngest child until her emancipation. Having reviewed the record evidence, it found no error in the court’s child support calculations or its decision to credit the husband’s child support o</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division rejected the wife’s argument that Supreme Court erred in declining to award her counsel fees. “Although there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse, in exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties positions. However, this presumption can be rebutted given the amount of the equitable distribution, maintenance, and substantial interim award). In light of the size of the wife’s distributive award, the fact that her yearly income was comparable to the husband’s, and the interim relief she was awarded, including an improperly high temporary maintenance award and fees for an expert witness she never called, Supreme Court did not abuse its discretion in denying the wife’s request for counsel fees.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Fourth Department</span></p><p><br /></p><p><span style="font-family: arial;">Although there is authority to award a payor spouse credit for carrying costs on a marital residence, where the husband resided in the marital residence during the pendency of the proceeding there was no error in declining to award him credits for those payments.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Lisowski v Lisowski, --- N.Y.S.3d ----, 2023 WL 4837709, 2023 N.Y. Slip Op. 04016 (4th Dept., 2023) the husband commenced this action in February 2018, and a temporary order dated August 14, 2018, required the husband “to pay all of the expenses he has paid throughout the marriage” except for the cellular telephone phone bills for the wife and the parties’ three children. The husband had been paying all of the household expenses and $300 per week to the wife since March 2018. The husband contended on his appeal, among other things, that he should have been credited for the expenses that he paid during the pendency of the divorce action and that the court erred in computing the number of months for which he would receive retroactive credit for the $300 weekly payments to the wife. The Appellate Division concluded that the Referee, and by adoption, the court, did not err in declining to credit him for household expenses he paid during the pendency of the divorce. Although there is authority to award a payor spouse credit for carrying costs on a marital residence, the husband, here, resided in the marital residence during the pendency of the proceeding, and there was no error in declining to award him credits for those payments. Since there is authority to award a spouse retroactive credit for voluntary payments made before any temporary order was issued, the award related to “unallocated support” could be credited against the ultimate maintenance award. The Appellate Division concluded that the husband was entitled to a credit against his maintenance obligation for all of the $300 weekly payments he made to the wife.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Under the circumstances of this case, the AFC lacked standing to bring an appeal on behalf of the subject child. An AFC cannot, in most Family Court Act article 8 proceedings, unilaterally take an appeal where a parent or guardian who is an aggrieved party has not done so.</span></p><p><br /></p><p><span style="font-family: arial;">In Joey L.F. v. Jerid A.F., --- N.Y.S.3d ----, 2023 WL 4837130, 2023 N.Y. Slip Op. 04046 (4th Dept., 2023) the petitioner filed a family offense petition on behalf of her son (subject child) against the respondent. Respondent moved to dismiss the petition on the ground that it was facially insufficient. The Attorney for the Child (AFC) appealed from an order granting the motion. The Appellate Division concluded that under the circumstances of this case, the AFC lacked standing to bring an appeal on behalf of the subject child. It pointed out that generally speaking, the legislature has demonstrated its preference for natural guardians, such as petitioner, to represent their minor children in a proceeding. Given that preference, it concluded that an AFC cannot, in most Family Court Act Article 8 proceedings, unilaterally take an appeal where a parent or guardian who is an aggrieved party has not done so. In this case, the petitioner did not appeal even though it was her petition that was dismissed. The Court noted that there was no evidence that the petitioner had “an interest adverse to the” subject child that would warrant termination of her role as guardian in the proceeding, thereby permitting the AFC to bring an appeal on the child’s behalf (Bluntt, 291 A.D.2d at 113, 737 N.Y.S.2d 471). To conclude that the AFC has standing to appeal where the petitioner has not done so would effectively force a parent—the individual who originated the proceeding on the subject child’s behalf—to litigate a position that they have abandoned. This would, in some cases, override a parent’s reasonable decision-making authority. For instance, a parent who commenced a Family Court Act article 8 proceeding as the child’s guardian may decide that further litigation is unwise because, to substantiate the petition, the child would have to testify and be retraumatized in the process. In short, absent unusual circumstances not present here, an AFC cannot overrule the decision-making authority of a parent, the party the legislature prefers to act as the child’s guardian and take an appeal where the parent has not done so. Consequently, because the AFC lacked standing here, it dismissed the appeal.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">July 26, 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">A spouse is entitled to a credit for her contribution of separate property toward the purchase of the marital residence. While the wife did not provide a complete paper trail the only possible source for that money was the account that was set up by the wife’s father in his daughter’s name. Although billing records to support the wife’s counsel fee application was inadequate, given the husband's disruption, prolonging of the proceedings, and obstreperous behavior, the Appellate Division declined to reduce the counsel fee award.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In Yentis v Yentis, --- N.Y.S.3d ----, 2023 WL 4628521, 2023 N.Y. Slip Op. 03886 (1st Dept.,2023) the Appellate Division held, inter alia, that Supreme Court providently exercised its discretion in awarding the wife a separate property credit of $150,000 for the purchase of the marital apartment. It is well settled that a spouse is entitled to a credit for his or her contribution of separate property toward the purchase of the marital residence , including any contributions that are directly traceable to separate property . While the wife did not provide a complete paper trail documenting the source of the money used for the down payment and closing costs, the record supported the conclusion that the only possible source for that money was the premarital Paine Webber brokerage account that was set up by the wife’s father in his daughter’s name and into which the father had been contributing since she was a child.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division found that imputing an additional $98,000 to the husband’s income for the purposes of calculating child support was not supported by the record. The court based the husband’s child support obligation on his 2015 tax return, but then imputed the additional $98,000 based on evidence that the husband took home approximately that amount in cash in 2014. However, the husband testified that he reported his cash earnings, as reflected on his tax return, and there was no evidence to contradict this. It found that the husband’s income for CSSA purposes was $141,526 and that In view of the children’s reported expenses and comfortable living standard during the marriage, it was appropriate to calculate child support on total combined parental income of $295,009, resulting in the husband contributing $2,950 in monthly basic child support.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division found that the Court providently exercised its discretion in awarding the wife $125,000 in counsel fees. While it agreed with the husband that the billing summary submitted to support the wife’s counsel fee application was inadequate, given the Referee’s findings as to the husband and his counsel’s disruption of the proceedings, prolonging of the proceedings, and overall obstreperous behavior, it declined to reduce the fee award.</span></span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The wife was liable for 43% of the collateral mortgage on the marital apartment to which was used to secure a line of credit for the husband’s business. The wife’s financial contributions were explicitly factored into awarding her 43% of the value of the business.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Although the court accepted the father’s proof that he had been hospitalized for spinal surgery it rejected his testimony that he was unable to work after being discharged from the hospital, and imposed a 6 month prison sentence concluding that there was no evidence that he was totally unable to work at all.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> In Benson v Sherman, -- N.Y.S.3d ----, 2023 WL 4002706, 2023 N.Y. Slip Op. 03277 </span><span style="font-family: arial;">(3d Dept.,2023) Family Court confirmed the Support Magistrate’s findings, and found that the father willfully violated the support order and imposed the recommended prison six-month sentence. Although the court accepted the father’s proof that he was hospitalized for back surgery between October and November 2021, it rejected his testimony that he was unable to work after being discharged from the hospital, concluding that, while he “might have some limitations as [to] the kind of work he [could] do,” there was no evidence that he was unable to work at all. The medical evidence confirmed that the father , who had undergone spinal surgery, was unable to work during his extended hospitalization and further demonstrates that he had significant physical limitations preventing him from performing manual labor following his discharge. He also remained under continuing care to address a serious infection. These factors, coupled with his efforts to obtain disability benefits and his potential eviction, speak to an inability to pay support during the relevant October 2021 through March 2022 time frame. The record was , however, devoid of proof that the father was only capable of obtaining employment involving physical labor, lacked other options in which to generate income, or attempted to find work accommodating his health limitations. The eviction proceedings are not probative of his ability to work and his application for Social Security disability benefits “does not preclude Family Court from determining that he was able to work in some capacity”. Moreover, his support obligation of $40 a month was minimal and no payments were made during this period. The Appellate Division agreed with Family Court’s determination “that the father’s proof was ‘clearly inadequate to meet his burden of showing an inability to pay that would defeat the prima facie case of willful violation’ ” It affirmed the order directing that he be incarcerated for six months for wilful violation of the support order. At the confirmation hearing, counsel successfully admitted evidence of medical records corroborating the father’s contention that he was hospitalized for approximately one month of the relevant time frame and had physical injuries limiting his work options. However, there was no indication from those records that he was totally unable to work in any manner.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Assuming arguendo that a manifestation determination hearing had been warranted, the failure to hold one did not render the PINS petition jurisdictionally defective. The jurisdictional requirements for the filing of a PINS petition are set forth in the Family Ct Act (see Family Ct Act §§ 732, 735[g][ii][A]-[C]), and the holding of such a hearing is not among them.</span></p><p><span style="font-family: arial;">In Matter of Jazmyne VV., --- N.Y.S.3d ----, 2023 WL 4002657, 2023 N.Y. Slip Op. 03275 (3d Dept.,2023) respondent’s school principal, filed a PINS petition alleging that respondent, then a sixth-grade student, was habitually truant, disobedient and beyond the control of a parent or other lawful authority. In April 2022, respondent waived her right to a fact-finding hearing and admitted on the record that she had been absent from school without an excuse approximately 30 to 40 times that year. Based upon that admission, Family Court adjudicated respondent a PINS and ultimately entered a suspended judgment with conditions on consent. The Appellate Division affirmed rejecting the argument that Respondent was entitled to, and should have received, a manifestation determination hearing to establish whether the behavior underlying the PINS petition was the result of any disability on her part (see 9 NYCRR 357.1[l]). Although respondent did not request this hearing, she argued that the failure to hold the hearing constituted a nonwaivable jurisdictional defect. In advancing such an argument, respondent relied upon 9 NYCRR 357.9(d), which indicates that, “[w]here the matter involves truancy and/or ungovernable behavior at school and the youth is a special education student, probation shall not refer the matter for [a PINS] petition unless a [m]anifestation [d]etermination hearing has been held by the Committee on Special Education ... and the school has provided such documentation to the probation department and the court that the student’s behaviors are not related to the student’s disability, thereby warranting court action” (emphasis added). The record, failed to demonstrate that respondent was a “special education student” prior to the filing of the petition. While it is true that an individualized accommodation plan, also known as a 504 plan, was created for respondent, this was not done until after the petition was filed. Moreover, the existence of a 504 plan alone does not necessarily mean that respondent was a special education student, given that a 504 plan may provide accommodations for “children who need regular (not just special) education” (Doe v. Knox County Bd. of Educ., 56 F.4th 1076, 1083 [6th Cir. 2023]; see 34 CFR § 104.33[b][1]. Even assuming arguendo that a manifestation determination hearing had been warranted, it was unpersuaded that the failure to hold one rendered the PINS petition jurisdictionally defective. The jurisdictional requirements for the filing of a PINS petition are set forth in the Family Ct Act (see Family Ct Act §§ 732, 735[g][ii][A]-[C]), and the holding of such a hearing is not among them.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division rejected Respondents argument that the Probation Department failed to provide its case record to Family Court, thereby giving rise to a nonwaivable jurisdictional defect. In a PINS matter, the designated lead agency must maintain a written record of the diversionary services provided to the child, and this record “shall be made available to the court at or prior to the initial appearance” (Family Ct Act § 735[e]). Here, while there was some discussion at the initial court appearance as to whether the attorney for the child was entitled to review the Probation Department’s record and Family Court seemingly indicated that it had not actually reviewed the record, the transcript of the appearance does not reveal whether that record had been “made available to the court” on or prior to that date, which is all that is required by the pertinent statute (Family Ct Act § 735[e]). Compliance with this obligation is not included among the statutory jurisdictional prerequisites (see Family Ct Act §§ 732, 735[g][ii][A]-[C]).</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division also rejected Respondents respondent’s claim that the petition was jurisdictionally defective for failing to plead diligent efforts to provide diversion services and the grounds for concluding that judicial intervention was necessary. The petition adequately recited the diversion efforts undertaken and services provided, not merely in conclusory fashion but with specific reference to six different types of services and seven individual service providers who supported respondent over the four-month period of diversion. Despite these efforts, according to the petition, there was ongoing police intervention, hospital mental health evaluations and violence at respondent’s home. Contrary to respondent’s related argument, the documentation attached to the petition satisfied the requirements that the petition include the steps taken by the school district to improve respondent’s attendance and conduct (see Family Ct Act § 732[a][i]) and “the grounds for concluding that the education-related allegations could not be resolved absent the filing of a [PINS] petition” (Family Ct Act § 735[g][ii][C]).</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">July 19, 2023</span></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement. Initial email and the subsequent email correspondence also failed to establish that the parties reached an agreement</span></p><p><span style="font-family: arial;"> In Matter of Eckert, --- N.Y.S.3d ----, 2023 WL 4002660, 2023 N.Y. Slip Op. 03270 </span><span style="font-family: arial;">(3d Dept.,2023) James Eckert (decedent) died intestate in December 2018. Petitioner (daughter) was the decedent's only surviving child. The respondent (wife) was decedent's surviving spouse, having married decedent in July 2018. In August 2020, the daughter commenced the first proceeding seeking letters of administration of the decedent's estate and the wife cross-petitioned seeking the same relief. The daughter subsequently commenced an action in Surrogate's Court seeking an order declaring the decedent and the wife's marriage null and void because the decedent lacked the mental capacity to marry the wife. The daughter later commenced a separate action in Supreme Court against the wife alleging conversion, undue influence, lack of mental capacity, unjust enrichment and constructive trust in relation to decedent's non-probate retirement accounts; that matter was ultimately assigned to Surrogate's Court, which referred the parties to alternative dispute resolution (ADR). The day after the ADR session, the daughter's counsel sent the wife's counsel an email (the initial email) “to follow up [on] the settlement reached at mediation,” which involved the wife paying the daughter $515,000, setting forth an outline of the terms of the alleged agreement and asserting that he would prepare a draft settlement agreement. The next day, the wife's counsel responded asking the daughter's counsel to “[l]eave the timing of payment open” and providing additional terms. A week later, the daughter's counsel sent a draft of the proposed settlement agreement. The wife's counsel responded three weeks later asserting that the wife could not settle on the proposed terms as liquidating decedent's retirement accounts would have “enormous” tax consequences. Soon after, the daughter moved to enforce the settlement that she claimed was memorialized in the parties’ email exchange. The wife opposed such relief, asserting that no settlement had been reached. Surrogate's Court issued a decision and order which, among other things, granted the daughter's motion and determined that the parties had entered into a binding settlement agreement. The Appellate Divison reversed. </span></p><p><span style="font-family: arial;"><span> </span>The Appellate Division observed that to form a binding contract, “there must be a meeting of the minds, [so] that there is a manifestation of mutual assent [that is] sufficiently definite to assure that the parties are truly in agreement with respect to all material terms”. Importantly, to ensure that an agreement is enforceable as a stipulation of settlement, its terms must be placed on the record “in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys”. Surrogate's Court erred in finding that a binding agreement was formed, as the parties did not mutually assent to all material terms. Verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement (see CPLR 2104) The initial email and the subsequent correspondence also failed to establish that the parties reached an agreement. As such, the parties never reached the requisite meeting of the minds as to all material terms and a binding agreement was never formed The Court reminded the parties that, to be enforceable, stipulations of settlement require more than just an agreement among the parties. Once the parties to an active litigation reach an agreement, they must (1) place the material terms of such agreement on the record in open court, (2) reduce them to a court order which is then signed and entered or (3) contain them in a writing subscribed by the parties or their counsel (see CPLR 2104). </span></p><p><span style="font-family: arial;"><br /></span></p><p><br /></p><p><span style="font-family: arial;">In a Neglect proceeding under Family Ct Act § 1046[a][vi]) the out-of-court statements of siblings may properly be used to cross-corroborate one another. However, they must describe similar incidents in order to sufficiently corroborate their sibling’s out-of-court allegations.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Kashai E.--- N.Y.S.3d ----, 2023 WL 4482118, 2023 N.Y. Slip Op. 03784 (2d Dept.,2023) the Appellate Division reversed a finding of neglect against the father for committing acts of domestic violence against the mother in the children’s presence. At a fact-finding hearing, the petitioner relied solely on hearsay statements of the children, and the father did not testify. The Appellate Division observed that the trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding. Previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect” (Family Ct Act § 1046[a][vi]). The out-of-court statements of siblings may properly be used to cross-corroborate one another. However, such out-of-court statements must describe similar incidents in order to sufficiently corroborate the sibling’s out-of-court allegations. Here, the hearsay evidence presented by the petitioner at the fact-finding hearing was insufficient to permit a finding of neglect. The hearsay statement of one child that she witnessed the father “attacking her mother in the bedroom” failed to provide any detail as to the alleged domestic violence and was not corroborated by any other evidence of domestic violence in the record. The hearsay statements of the children describing an incident in which the father yelled outside the children’s home and “reached for” or “grabbed at” one of the children on their way inside, which the children described as “uncomfortable,” “weird,” and “confus[ing],” causing one of them to be “a little anxious” and the other to “start[ ] to cry,” without more, was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired. Furthermore, the children’s knowledge that the father legally possessed a firearm in another state was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired where there was no evidence that the father had threatened anyone with his firearm or otherwise connecting the firearm to the alleged incidents of neglect.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where both parties were residing in Rhode Island but their Judgment of divorce contained a provision that Supreme Court would retain jurisdiction concurrently with the Family Court to enforce their stipulation of Supreme Court had personal jurisdiction over the defendant who opposed the plaintiff’s motion without raising an objection to jurisdiction.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Ritchey v Ritchey, --- N.Y.S.3d ----, 2023 WL 4482190, 2023 N.Y. Slip Op. 03810 (2d Dept.,2023) the parties amended judgment of divorce amended February 1, 2011, incorporated, but did not merge, a stipulation of settlement dated September 4, 2008, in which the parties agreed to certain child support provisions and included a provision stating that the Supreme Court would retain jurisdiction concurrently with the Family Court to enforce the provisions of the parties’ stipulation of settlement. As of approximately 2016, both of the parties and all of their children were residing in the state of Rhode Island. By order to show cause dated November 18, 2020, the plaintiff moved, inter alia, to enforce the child support provisions of the so-ordered stipulation. The defendant opposed the motion on the merits, without raising an objection to jurisdiction. Thereafter, the plaintiff moved to modify the defendant’s child support obligation. In an order dated September 27, 2021, the Supreme Court denied both motions without prejudice to bringing them in the appropriate court in Rhode Island. The Appellate Division reversed and remitted for a determination on the merits. It held that the Supreme Court had personal jurisdiction over the defendant because, among other things, the defendant appeared and opposed the plaintiff’s motion without raising an objection as to jurisdiction (see Family Ct Act § 580–201[a][2]). Under the circumstances of this case, the court had continuing jurisdiction to enforce its support order (Family Ct Act § 580–104[b][1]). To the extent that the court’s denial of the plaintiff’s motion was based upon the doctrine of forum non conveniens, it was improper for the court to apply that doctrine sua sponte, without the parties having had an opportunity to brief the issue.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">July 12, 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Plaintiff’s request for an award of interim maintenance arrears was properly denied pursuant to the doctrine of res judicata where he plaintiff provided no explanation as to why this issue, which he alleged arose in April 2009, was not addressed at the parties’ trial later that year</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Savino v Savino, --- N.Y.S.3d ----, 2023 WL 4353596, 2023 N.Y. Slip Op. 03728 (2d Dept.,2023) in May 2013, the plaintiff moved, inter alia, to enforce certain equitable distribution provisions of the judgment of divorce. The Appellate Division held, inter alia, that Supreme Court providently exercised its discretion in awarding the plaintiff interest on the distribution of the parties’ marital account. “Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an act of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion” (CPLR 5001[a]). “The exercise of the court’s discretion in determining the appropriate interest is governed by the particular facts in each case” (U.S. Bank, N.A. v. Peralta, 191 A.D.3d 924, 926, 142 N.Y.S.3d 568). Here, the record indicated that the defendant wilfully violated the referee’s amended decision and order dated October 28, 2010, by failing to distribute the contents of the account equally, and instead liquidating the account and denying the plaintiff access to his portion of the proceeds. Accordingly, an award of interest on the plaintiff’s portion of the proceeds was proper in this matter.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held that the plaintiff’s request for an award of maintenance arrears was properly denied pursuant to the doctrine of res judicata. “[I]n the context of a matrimonial action, the Court of Appeals has ‘recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated but also to those that could have been litigated’ ” (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100, 810 N.Y.S.2d 96, 843 N.E.2d 723). The plaintiff provided no explanation as to why this issue, which he alleged arose in April 2009, was not addressed at the parties’ trial later that year.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">If a party moving for disqualification was aware or should have been aware of the facts Iunderlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Marotta v Marotta, ---- N.Y.S.3d ----, 2023 WL 4340297, 2023 N.Y. Slip Op. 03694 (2d Dept.,2023) the Appellate Division held that the Family Court improvidently exercised its discretion in granting the mother’s motion which was to disqualify the father’s attorneys on the basis that the father’s current wife, the children’s stepmother, works as a paralegal in the law office that employed the father’s attorneys. It observed that where a party seeks to disqualify its adversary’s counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time. If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation. Further, where a motion to disqualify is made in the midst of litigation and the moving party knew of the alleged conflict of interest well before making the motion, it can be inferred that the motion was made merely to secure a tactical advantage. The mother was aware of the employment of the father’s current wife at the law firm representing the father since 2019. Accordingly, the mother’s failure to move to disqualify the father’s attorneys until April 2022 constituted a waiver of her objection to the father’s legal representation. In any event, the mother failed to demonstrate that the children will be prejudiced by the father being represented by his current attorneys. There was no evidence that during the course of her employment, the father’s current wife worked on the father’s case or that she otherwise communicated with the children about the case.</span></p><p><br /></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><br /></p><p><span style="font-family: arial;">A change in circumstances that warranted a best interest hearing was demonstrated, two months after the initial custody award to the mother, where mother was using her award of custody to alienate the father from the child and refused, respond to the father’s reasonable requests for basic information</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Joshua XX., v. Stefania YY., --- N.Y.S.3d ----, 2023 WL 4353660, 2023 N.Y. Slip Op. 03743 (3d Dept.,2023) the Appellate Division concluded that a change in circumstances that warranted a best interest hearing was demonstrated, two months after the initial custody award to the mother, by virtue of the testimony that the mother was using her award of custody to alienate the father from the child and had refused, on several occasions after January 2020, to respond to the father’s reasonable requests for basic information about which of her homes in Ulster County, Dutchess County and Queens County the child would be staying at during her custodial time at the height of the COVID–19 pandemic. There was also evidence that the father – who had previously lived in the basement apartment of the paternal great-grandmother’s home – had since moved to more suitable accommodations. As such, Family Court appropriately proceeded to a best interests review. The Court also found that there was a sound and substantial basis in the record to support Family Court’s finding that the transfer of sole custody to the father would be in the child’s best interests.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Proposed relocation for the purpose of remarriage is a valid motive that should not be summarily rejected, at least where the over-all impact on the child would be beneficial</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Brian VV., v. Heather WW.,--- N.Y.S.3d ----, 2023 WL 4353604, 2023 N.Y. Slip Op. 03733 (3d Dept.,2023) the Appellate Division held that the proposed relocation of a custodial parent provides the requisite change in circumstances required for Family Court to consider whether a modification of the existing custody order serves the best interests of the child. The party seeking to relocate, “bears the burden of establishing that the move is in the [child’s] best interests by a preponderance of the evidence” It rejected the argument of the mother and the attorney for the child that the father had an impermissible motive for relocation from Cortland to Long Island that necessitated dismissal of his petition. Proposed relocation for the purpose of remarriage is a valid motive that should not be summarily rejected, at least where the over-all impact on the child would be beneficial. (Matter of Tropea v. Tropea, 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145). That said, it found that Family Court’s conclusion that it would be in the child’s best interests to remain with the mother in Cortland County to be supported by a sound and substantial basis in the record.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Although Family Ct Act § 1055–a (b) provides for the enforcement of postadoption contact agreements, it does not provide a mechanism for the revocation of said agreements.</span><span style="font-family: arial; white-space: pre;"> </span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Samuel S.--- N.Y.S.3d ----, 2023 WL 4353596, 2023 N.Y. Slip Op. 03728 (3d Dept.,2023) in 2019, petitioner surrendered her rights to her two sons (born in 2014 and 2016) and executed a judicial consent to their adoption. In conjunction with the surrender, Family Court approved a postadoption contact agreement allowing petitioner to have monthly visits with the children, access to the adoptive parents’ telephone number and address, the ability to send cards and gifts to the children and to be provided with short reports on the health, education and activities of the children, among other things. Petitioner filed a petition in March 2021, asking Family Court to revoke both the contact agreement and the judicial consent as to both of the children based on the pre-adoptive parents’ violation of the agreement. Family Court granted a motion by the attorney for the children to dismiss the petition, finding, inter alia, that it failed to state a cause of action inasmuch as Family Ct Act § 1055–a does not authorize the court to terminate or revoke a postadoption contact agreement, only to enforce it. The Appellate Division affirmed. It noted that Family Ct Act § 1055–a (b) provides that, if a child who is the subject of a postadoption contact agreement has not yet been adopted, any party to the agreement can file a petition seeking enforcement. Although Family Ct Act § 1055–a (b) provides for the enforcement of postadoption contact agreements, it does not provide a mechanism for the revocation of said agreements. Moreover, as to petitioner’s contention that the judicial consent to adoption should be revoked based upon the pre-adoptive parents’ failure to abide by the terms of the contact agreement, failure to abide by such an agreement “shall not be grounds for ... revocation of written consent to an adoption after that consent has been approved by the court” (Domestic Relations Law § 112–b [3]). As such, Family Court did not err in dismissing petitioner’s petition on the basis of failure to state a cause of action.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">July 5, 2023</span></p><p><span style="font-family: arial;">Appellate Division, First Department</span></p><p><span style="font-family: arial;">Father who continually interfered with the children’s third-party providers ordered to pay for add-ons and to refrain from interfering with, harassing, or terminating the services of the children’s third-party providers, and prohibited from having any contact with the children’s current or prospective providers except to pay invoices</span><span style="font-family: arial; white-space: pre;"> </span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Ader v Ader, --- N.Y.S.3d ----, 2023 WL 3828099, 2023 N.Y. Slip Op. 02961 (1st Dept.,2023) the Appellate Division affirmed an order which, inter alia, granted the motion of the attorney for the children to enforce the order requiring defendant father to pay for add-ons and to refrain from interfering with, harassing, or terminating the services of the children’s third-party providers, and prohibited the father from having any contact with the children’s current or prospective providers except to pay invoices, awarded the mother sole interim decision-making for the children’s add-on expenses, and directed the father to pay or reimburse those expenses within 10 days of submission, subject to reallocation at trial. It held that the court’s determinations regarding payments due and owing to the children’s current or prospective third-party providers had a sound and substantial basis in the record. Despite the terms of the parties’ prenuptial agreement and several court orders, the father continually interfered with the children’s third-party providers, such as tutors, by refusing to timely pay their fees or refusing to pay them at all. These actions by the father were contrary to the children’s best interests, as the third-party providers were necessary for the children’s emotional and educational well-being and the children had been working successfully with some of them for years. For the same reasons, there was a sound and substantial basis in the record for the court’s award to the mother of sole interim decision-making for the children’s add-on expenses and for the court’s directive that the father refrain from directly contacting or harassing current or potential third-party providers. The father had tried to interfere with the children’s tutors by sending them emails apparently designed to intimidate them, to the children’s detriment. Under the circumstances, the court properly decided that it was in the children’s best interests for the father to have no contact with any providers, including tutors, schools, and therapists, except to pay invoices. Moreover, before entering the order, the court heard from the parties—including the attorney for the children, who supported the mother's motion on her clients’ behalf—and explained, on the record, the reasoning for its decision. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The remedy for any perceived inequities in the pendente lite award is a speedy trial.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Khazaneh v Khazaneh, --- N.Y.S.3d ----, 2023 WL 4239722 (Mem), 2023 N.Y. Slip Op. 03547 (2d Dept.,2023) the Appellate Division affirmed an order which, inter alia, denied, in part, plaintiff wife’s motion for pendente lite relief insofar as it awarded her $17,000 per month of the requested $64,956 in interim maintenance and directed her to pay 30% of the carrying costs of the marital residence from that amount. The Appellate Division found no basis for disturbing the court’s award of temporary maintenance. It held that the wife’s remedy for any perceived inequities in the pendente lite award is a speedy trial. As maintenance awards are intended to include all basic living expenses, including housing costs, the court’s directing the wife to pay a proportionate amount of her maintenance income to cover a share of the carrying costs of the marital residence was not in error.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Appellate Divison, Fourth Department</span></p><p><br /></p><p><span style="font-family: arial;">As a general rule, the value of the marital residence should be fixed as of the time of trial.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In Jocoy v Jocoy, --- N.Y.S.3d ----, 2023 WL 4285087, 2023 N.Y. Slip Op. 03652 </span><span style="font-family: arial;">(4th Dept., 2023) the wife appealed from a judgment of divorce that, inter alia, directed defendant husband to pay child support of $1,300 per month and a net amount of $8,740 for retroactive child support, and directed him to pay plaintiff $19,174, representing her half of the marital value of the former marital residence. The Appellate Division rejected plaintiff’s contention that the court erred in calculating defendant’s separate property credit with respect to the marital residence. Defendant purchased the residence prior to the marriage, and less than three years after the marriage, title to the residence was transferred into the parties’ joint names and the mortgage was refinanced. The court did not abuse its broad discretion in calculating defendant’s separate property credit by determining his equity in the residence as of the time of the marriage. However, it found that the court abused its discretion in determining the value of the marital residence by using the valuation date as of the commencement of the action rather than the valuation as of the time of trial. As a general rule, the value of the marital residence should be fixed as of the time of trial. It modified the judgment accordingly.</span></p><p><br /></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where the court deviated from the presumptive child support award in part on the ground that the child shared the residences of the parents, the shared custody arrangement is not a proper basis for downward deviation from the presumptive support obligation.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Wagner v Wagner, --- N.Y.S.3d ----, 2023 WL 4284251, 2023 N.Y. Slip Op. 03593(4th Dept.,2023) the Appellate Division, inter alia, rejected plaintiffs argument on appeal that he was entitled to summary reversal on the ground that he has been denied his right to effective appellate review because portions of the trial testimony could not be transcribed due to malfunctions of the audio recording system. The Appellate Division had previously reversed an order denying plaintiff’s motion for a reconstruction hearing and remitted the matter for such a hearing to “reconstruct[ ], if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed” (Wagner v. Wagner, 210 A.D.3d 1515, 1515, 176 N.Y.S.3d 826 [4th Dept. 2022]). On this appeal, the parties submitted a statement of settlement by Supreme Court purporting to reconstruct the missing testimony. In light of the availability of that alternative method to provide an adequate record, summary reversal was not warranted.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division, inter alia, agreed with defendant that the court erred in deviating from the presumptive child support award pursuant to the Child Support Standards Act (CSSA). Although the court deviated from the presumptive child support award in part on the ground that the child shared the residences of the parents, the shared custody arrangement was not a proper basis for downward deviation from the presumptive support obligation.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Inasmuch as child support is determined by the parents’ ability to provide for their children rather than their current economic situation the Support Magistrate properly considered the PPP monies in imputing income to the father.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Houck v Houck, --- N.Y.S.3d ----, 2023 WL 4284852, 2023 N.Y. Slip Op. 03624 (4th Dept., 2023) the Appellate Division rejected appellants argument that the Support Magistrate erred in imputing income to him for child support purposes based upon money he received from the federal Paycheck Protection Program (PPP) in 2021. A support magistrate may impute income based on a party’s employment history, future earning capacity, educational background, or money received from friends and relatives. The record established that the father’s business suffered a temporary downturn due to the COVID-19 pandemic and that the PPP monies brought his income for 2021 back up to an amount that was generally consistent with what it had been prior to the pandemic. Inasmuch as child support is determined by the parents’ ability to provide for their children rather than their current economic situation the Support Magistrate properly considered the PPP monies in imputing income to the father.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">July 1, 2023</span></p><p><span style="font-family: arial;">Family Court Act § 659, titled Consideration of law allowing gender-affirming care, was added effective June 25, 2023.</span></p><p><span style="font-family: arial;">§ 659. Consideration of law allowing gender-affirming care</span></p><p><span style="font-family: arial;">1. A law of another state that authorizes a child to be removed from their parent or guardian based on the parent or guardian allowing their child to receive gender-affirming care shall not be enforced or applied in a case pending in a court in this state.</span></p><p><span style="font-family: arial;">2. No court in this state shall admit or consider a finding of abuse based on the parent or guardian allowing their child to receive or seek gender-affirming care as evidence in any proceeding with respect to that parent or guardian and any of their children, unless such conduct would constitute abuse under the laws of this state if it occurred in this state.</span></p><p><span style="font-family: arial;">(Laws of 2023, Ch. 143, § 1, effective June 25, 2023.)</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Supreme Court of the United States</span></p><p><span style="font-family: arial;">The Supreme Court declined to disturb the Fifth Circuit’s conclusion that the Indian Child Welfare Act (ICWA) is consistent with Congress’s Article I authority.</span></p><p><span style="font-family: arial;">In Haaland v. Brackeen, --- S.Ct. ----, 2023 WL 4002951 (Supreme Court of the United States, 2023) the Petitioners—a birth mother, foster and adoptive parents, and the State of Texas—filed this suit in federal court against the United States and other federal parties. Petitioners challenged ICWA as unconstitutional on multiple grounds. Several Indian Tribes intervened to defend the law alongside the federal parties The District Court granted petitioners’ motion for summary judgment on their constitutional claims, and the en banc Fifth Circuit affirmed in part and reversed in part. The Fifth Circuit concluded that ICWA does not exceed Congress’s legislative power, that § 1915(c) does not violate the nondelegation doctrine, and that some of ICWA’s placement preferences satisfy the guarantee of equal protection. The Fifth Circuit was evenly divided as to whether ICWA’s other preferences—those prioritizing “other Indian families” and “Indian foster home[s]” over non-Indian families—unconstitutionally discriminate on the basis of race, and thus affirmed the District Court’s ruling that these preferences are unconstitutional. As to petitioners’ Tenth Amendment arguments, the Fifth Circuit held that § 1912(d)’s “active efforts” requirement, § 1912(e)’s and § 1912(f)’s expert witness requirements, and § 1915(e)’s recordkeeping requirement unconstitutionally commandeer the States. And because it divided evenly with respect to other challenged provisions (§ 1912(a)’s notice requirement, § 1915(a) and § 1915(b)’s placement preferences, and § 1951(a)’s recordkeeping requirement), the Fifth Circuit affirmed the District Court’s holding that these requirements violate the Tenth Amendment.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Supreme Court observed that the case involved three separate child custody proceedings governed by the Indian Child Welfare Act (ICWA), a federal statute that aims to keep Indian children connected to Indian families. ICWA governs state court adoption and foster care proceedings involving Indian children. Among other things, the Act requires the placement of an Indian child according to the Act’s hierarchical preferences, unless the state court finds “good cause” to depart from them. 25 U.S.C. §§ 1915(a), (b). Under those preferences, Indian families or institutions from any tribe (not just the tribe to which the child has a tie) outrank unrelated non-Indians or non-Indian institutions. Further, the child’s tribe may pass a resolution altering the prioritization order. § 1915(c). The preferences of the Indian child or her parent generally cannot trump those set by statute or tribal resolution. In involuntary proceedings, the Act mandates that the Indian child’s parent or custodian and tribe be given notice of any custody proceedings, as well as the right to intervene. §§ 1912(a), (b), (c). Section 1912(d) requires a party seeking to terminate parental rights or to remove an Indian child from an unsafe environment to “satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family,” and a court cannot order relief unless the party demonstrates, by a heightened burden of proof and expert testimony, that the child is likely to suffer “serious emotional or physical damage” if the parent or Indian custodian retains custody. §§ 1912(d), (e). Even for voluntary proceedings, a biological parent who gives up an Indian child cannot necessarily choose the child’s foster or adoptive parents. The child’s tribe has “a right to intervene at any point in [a] proceeding” to place a child in foster care or terminate parental rights, as well as a right to collaterally attack the state court’s custody decree. §§ 1911(c), 1914. The tribe thus can sometimes enforce ICWA’s placement preferences against the wishes of one or both biological parents, even after the child is living with a new family. Finally, the States must keep certain records related to child placements, see § 1915(e), and transmit to the Secretary of the Interior all final adoption decrees and other specified information, see § 1951(a).</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial;">The Supreme Court declined to disturb the Fifth Circuit’s conclusion that ICWA is consistent with Congress’s Article I authority. It pointed out that Congress’s power to legislate with respect to Indians is well established and broad. Petitioners contended that ICWA impermissibly treads on the States’ traditional authority over family law. The Court found that when Congress validly legislates pursuant to its Article I powers, the Court “has not hesitated” to find conflicting state family law preempted, “[n]otwithstanding the limited application of federal law in the field of domestic relations generally.” And the Court has recognized Congress’s power to displace the jurisdiction of state courts in adoption proceedings involving Indian children. Petitioners contended that no source of congressional authority authorizes Congress to regulate custody proceedings for Indian children. They suggested that the Indian Commerce Clause, for example, authorizes Congress to legislate only with respect to Indian tribes as government entities, not Indians as individuals. It rejected this argument. The Court’s holding more than a century ago that “commerce with the Indian tribes, means commerce with the individuals composing those tribes,” rendered that argument a dead end. Petitioners also asserted that ICWA takes the “commerce” out of the Indian Commerce Clause because “children are not commodities that can be traded.” This point, while rhetorically powerful, ignored the Court’s precedent interpreting the Indian Commerce Clause to encompass not only trade but also other Indian affairs. Petitioners next argued that ICWA cannot be authorized by principles inherent in the Constitution’s structure because those principles “extend, at most, to matters of war and peace.” However, petitioners made no argument that takes the Court’s cases on their own terms. The Court has referred generally to the powers “necessarily inherent in any Federal Government” and has offered non-military examples, such as “creating departments of Indian affairs.” Petitioners next observed that ICWA does not implement a federal treaty. However, Congress did not purport to enact ICWA pursuant to its treaty power and the Fifth Circuit did not uphold ICWA on that rationale. Finally, petitioners criticized the Court’s precedent as inconsistent with the Constitution’s original meaning, but they neither asked the Court to overrule the precedent they criticized nor tried to reconcile their approach with it. If there are arguments that ICWA exceeds Congress’s authority as precedent stands today, petitioners did not make them here. The Court rejected the Petitioners’ anticommandeering challenges, which addressed three categories of ICWA provisions. The Court did not reach the merits of the petitioners’ two additional claims, an equal protection challenge to ICWA’s placement preferences and a non-delegation challenge to § 1915(c), the provision allowing tribes to alter the placement preferences, because no party before the Court had standing to raise them. (994 F.3d 249, affirmed in part, reversed in part, vacated and remanded in part.)</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Appellate Divison, Third Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Father properly committed to jail where his medical evidence spoke to an inability to pay support but the record was devoid of proof that he was only capable of obtaining employment involving physical labor, lacked other options in which to generate income, or attempted to find work accommodating his health limitations.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Benson v Sherman, --- N.Y.S.3d ----, 2023 WL 4002706, 2023 N.Y. Slip Op. 03277 (3d Dept.,2023) the Appellate Division affirmed an order of the Family Court which held the respondent in willful violation of a prior order of support and committed the respondent to jail for six months. Under Family Ct Act § 437, a parent is presumed to have sufficient means to support his or her child until the age of 21. The failure to pay support as required constitutes prima facie evidence of a willful violation. The father’s proof was ‘clearly inadequate to meet his burden of showing an inability to pay. (Family Ct Act § 454[3][a]) The medical evidence confirmed that the father was unable to work during his extended hospitalization and further demonstrated that he had significant physical limitations preventing him from performing manual labor following his discharge. He also remained under continuing care to address a serious infection. These factors, coupled with his efforts to obtain disability benefits and his potential eviction, spoke to an inability to pay support during the relevant October 2021 through March 2022 time frame. However, the record was devoid of proof that the father was only capable of obtaining employment involving physical labor, lacked other options in which to generate income, or attempted to find work accommodating his health limitations. Eviction proceedings against him were not probative of his ability to work and his application for Social Security disability benefits did not preclude Family Court from determining that he was able to work in some capacity. Moreover, the support obligation of $40 a month was minimal and no payments were made during this period. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">June 14, 2023</span></p><p><span style="font-family: arial; white-space: pre;"> </span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><br /></p><p><span style="font-family: arial;">On counsel fee application under DRL §238 plaintiff was required to submit itemized billing statements as proof of the attorneys’ fees incurred, to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the “extent and value of [the] services” rendered. A movant may not meet his or her burden on a motion by submitting evidence in reply.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Yakobowicz v Yakobowicz, --- N.Y.S.3d ----, 2023 WL 3856275, 2023 N.Y. Slip Op. 03044 (2d Dept.,2023) the parties 2014 a stipulation of settlement required the plaintiff to direct the trustee of their apartment in Israel to transfer title to the apartment to the defendant as part of her distributive award. Their 2014 judgment of divorce incorporated, but did not merge, the stipulation. The defendant moved, inter alia, to hold the plaintiff in contempt based upon, among other things, his failure to transfer title to the apartment to her. By order dated November 2, 2016, the Supreme Court granted the defendant’s renewed motion for interim counsel fees to the extent of awarding the defendant interim attorneys’ fees of $25,000 without prejudice to further application for additional sums. In August 2017, the defendant moved to hold the plaintiff in contempt for failing to pay the $25,000 interim attorneys’ fees award. Supreme Court, referred the motion to the hearing on defendant’s prior motion to hold the plaintiff in contempt. In August 2018, the Appellate Division affirmed the order granting defendant’s renewed motion to the extent of awarding her $25,000 in interim attorneys’ fees. In 2019 Supreme Court held the plaintiff in contempt for failing to direct the trustee to transfer title to the apartment to the defendant and for failing to pay the interim attorneys’ fees award, while permitting him to purge the contempts, which he did. </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In October 2019, the defendant moved, inter alia, pursuant to DRL 238 for an award of more than $200,000 in attorneys’ fees relating to her attempts to enforce the judgment of divorce, The parties stipulated that her attorneys’ fee application could be decided without a hearing. Supreme Court granted defendant’s motion to the extent of awarding $50,000.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division observed that the defendant sought more than $200,000 in attorneys’ fees for pursuing the enforcement proceedings, but failed to include itemized billing for a significant portion of the attorneys’ fees sought. Contrary to the defendant’s contention, she was required to submit itemized billing statements as proof of the attorneys’ fees incurred, both to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the “extent and value of [the] services” rendered particularly considering that the parties agreed to have her attorneys’ fee application decided without a hearing. The Supreme Court properly rejected her attempt to remedy this issue by submitting the missing statements in reply, since a movant may not meet his or her burden on a motion by submitting evidence in reply. While the defendant omitted itemized billing statements covering the early portion of the enforcement proceedings from her moving papers, she nonetheless included statements for a nearly two-year period leading up to the motion. The plaintiff correctly contended that, under the circumstances, the defendant was not entitled to the compound interest charges contained in those statements. Some unknown portion of those interest charges related to attorneys’ fees contained in the missing statements, which were not recoverable. In any event, interest is not part of [a legal] fee, but rather compensation for delay in payment of the fee . The Appellate Division held that Supreme Court improvidently exercised its discretion in awarding only $50,000 in attorneys’ fees to the defendant, the nonmonied spouse. The defendant’s attorneys billed nearly $100,000 in hourly fees and costs for services rendered during the period reflected in the billing statements submitted with the moving papers, not including interest charges. Moreover, the defendant pursued the enforcement proceedings because of the plaintiff’s failure to comply with the judgment of divorce, and the court held him in contempt for his noncompliance. While the court found that the plaintiff was primarily at fault, it determined that the defendant’s actions “partly contributed to the excessively lengthy litigation.” However, the record did not indicate that the defendant’s actions materially increased the cost of litigation for the parties. Contrary to the plaintiff’s contention, the defendant was not prohibited as a matter of law from recovering attorneys’ fees relating to her applications. Finally, this Court’s review of the itemized entries in question did not reveal any significant number of hours billed that are plainly unrelated to the enforcement proceedings, despite the plaintiff’s assertions to the contrary. Under the circumstances, the Court concluded that the defendant demonstrated entitlement to $96,243.79 in attorneys’ fees in her moving papers. The plaintiff was entitled to a credit in the amount of $25,000 for the interim attorneys’ fee award previously paid.</span></p><p><br /></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Divison, Third Department</span></p><p><span style="font-family: arial;"><br />One family-one judge rule (22 NYCRR 205.3[c][6]) speaks to the assignment of particular cases within a court, and not whether the venue of a proceeding is proper.</span></p><p><span style="font-family: arial;">In Matter of Awawdeh v Awawdeh, --- N.Y.S.3d ----, 2023 WL 3872165, 2023 N.Y. Slip Op. 03062 (3d Dept.,2023) the parties separated in 2019, at which time a divorce proceeding was commenced in Saratoga County. In 2021, the petitioner commenced a family offense proceeding in Washington County, where she had moved, and alleged that the respondent committed various family offenses. Respondent moved to dismiss the amended petition for failure to state a cause of action or, alternatively, on the basis that the filing of the amended petition in Washington County violated 22 NYCRR 205.3(c)(6). Family Court denied the motion. The Appellate Division observed that relying on what is known as the one family-one judge rule (see 22 NYCRR 205.3[c][6]), the respondent contended that the amended petition should have been dismissed with leave to refile in Saratoga County. The one family-one judge rule provides that “[m]ultiple proceedings involving members of the same family shall be assigned to be heard by a single judge to the extent feasible and appropriate” (22 NYCRR 205.3[c][6]). This rule, however, speaks to the assignment of particular cases within a court, and not whether the venue of a proceeding is proper, which is the essence of the respondent’s contention. Even if the one family-one judge rule governed the venue of proceedings, it also applies “to the extent feasible and appropriate” (22 NYCRR 205.3[c][6]). Notwithstanding the pending divorce proceeding in Saratoga County, the petitioner resided in Washington County when she commenced this family offense proceeding. Furthermore, the respondent does not dispute that Washington County could be considered an appropriate venue for the proceeding. It held that under the circumstances of this case, the respondent’s reliance on the one family-one judge rule as a basis for dismissal of the amended petition Kass unavailing.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">Respondent also took issue with the fact that the petitioner never explicitly alleged aggravated harassment in the second degree in the amended petition. Although this family offense was not specifically pled, the factual allegation forming the basis of the Family Court’s finding was sufficiently pled and the hearing proof was sufficient to make out a prima facie case on this family offense. In view of the foregoing, and noting that the respondent was able to defend himself against this factual allegation, any failure to explicitly plead aggravated harassment in the second degree did not warrant reversal.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">A Lincoln hearing is the preferred method for ascertaining the child’s wishes. The wishes of this soon-to-be 16–year–old child, although not determinative, should have been considered. It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing is to ascertain a child’s preferences and concerns.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Samantha WW v Malek XX, --- N.Y.S.3d ----, 2023 WL 3872128, 2023 N.Y. Slip Op. 03052 (3d Dept.,2023) the parties were the parents of the child (born in 2005). In 2017, the stipulated to an order of custody in which the mother and the father had joint legal custody of the child with the father having primary physical custody. In 2020, the mother filed a modification petition seeking primary physical custody of the child. During a fact-finding hearing, at the close of the mother’s proof, the mother and the attorney for the child requested that Family Court conduct a Lincoln hearing of the child. Family Court declined to conduct such a hearing, stating that it presumed the child’s position is that he prefers to reside with the mother in Florida and granted the father’s motion to dismiss on the ground that the mother failed to establish a change in circumstances. The Appellate Division held that while not determinative, the preferences of an older and more mature child are relevant in determining whether a change in circumstances exists and that Family Court abused its discretion in denying the attorney for the child’s request for a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. While the determination of whether to conduct a Lincoln hearing lies within Family Court’s discretion, it is indeed the preferred method for ascertaining the child’s wishes. At the time of the hearing, the child was six days shy of being 16 years old and the mother’s primary argument in support of her petition was that the child preferred to reside with her in Florida. A Lincoln hearing would have provided the court with significant pieces of information it needed to make the soundest possible decision. The wishes of this soon-to-be 16–year–old child, although not determinative, should have been considered, including any insight he may have provided as to the current status of his relationship with each parent. It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing “is to ascertain a child’s preferences and concerns. Further, the record was bereft of any articulation or explanation for Family Court’s decision not to conduct a Lincoln hearing, although it assumes the court decided – wrongly, in its opinion – that it was unwarranted. It concluded that a Lincoln hearing was called for under these circumstances and remitted the matter to Family Court to conduct a Lincoln hearing, and any appropriate hearing following same.</span></p><p><br /></p><p><span style="font-family: arial;">Family Ct Act § 1062 permits a child’s parent to seek an order terminating the child’s out-of-home placement. Family Court has discretion to determine whether a hearing is necessary to resolve that question. Standing alone the mother assertion that she had completed or otherwise continued to successfully engage in all services required of her did not compel termination of the placement.<span style="white-space: pre;"> </span></span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Eli KK., --- N.Y.S.3d ----, 2023 WL 3872123, 2023 N.Y. Slip Op. 03061(3d Dept.,2023) both children were removed from the mother’s care in March 2021, on her consent, and placed in the custody of petitioner. The mother later admitted to neglecting the children. In August 2021, Family Court continued the placement of the children and imposed specified conditions upon the mother. In March 2022, petitioner conducted an unannounced home visit during the mother’s visitation with the younger child and discovered marihuana and drug paraphernalia within reach of the younger child. Petitioner then obtained a temporary order suspending contact between the mother and the younger child. Shortly thereafter, the mother moved, pursuant to Family Ct Act § 1062, to terminate the children’s out-of-home placements. Petitioner opposed, asserting that the alleged completion of services was an insufficient ground for such a motion and citing both the March 2022 incident and the fact that visitation with the older child had still not progressed from therapeutic visits. The mother appealed, arguing that it was an abuse of discretion to deny her motion without a hearing. The Appellate Division affirmed. It noted that Family Ct Act § 1062 permits a child’s parent, among others, to seek an order terminating the child’s out-of-home placement. The paramount concern on such a motion is whether the present placement continues to serve the purpose of Family Ct Act article 10 that is, protecting children from injury or mistreatment and “helping to safeguard their physical, mental, and emotional well-being– and the movant must establish that the return of the child protects these interests. Family Court is vested with the discretion to determine whether a hearing is necessary to resolve that question (see Family Ct Act § 1064) As grounds for the return of the children (see Family Ct Act § 1062[c]), the mother asserted that she had completed or otherwise continued to successfully engage in all services required of her. Standing alone, this did not compel termination of the placement. Further, following the March 2022 incident, the mother was ordered to engage in additional services, upon her consent. It was also undisputed that the mother’s visitation with each child was still required to be in a supervised setting. With respect to the younger child, the requirement of supervision was a recent regression. With respect to the older child, the mother acknowledged that certain of petitioner’s concerns were not being adequately addressed by her then-current counselor, and a component of the subject stipulation was that she would be connected with a new provider. In light of the foregoing, and considering Family Court’s familiarity with the parties and this neglect proceeding, there was no abuse of discretion in the court’s decision to deny the mother’s motion without a hearing.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Appellate Divison, Fourth Department </span></p><p><br /></p><p><span style="font-family: arial;">Supreme Court erred in awarding the wife maintenance above the presumptive amount under DRL § 236 (B) (6) and in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in DRL § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Renzi v Renzi, --- N.Y.S.3d ----, 2023 WL 3912644, 2023 N.Y. Slip Op. 03092 (4th Dept., 2023) the Defendant husband appealed from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $5,700 per month in maintenance until the husband reaches the age of 67. Although the judgment was entered upon the husband’s default and no appeal lies from a judgment entered on default, the appeal brings up for our review matters which were the subject of the contest before the court, i.e., the maintenance award. The Appellate Division held that Supreme Court erred in awarding the wife maintenance above the presumptive amount under Domestic Relations Law § 236 (B) (6) without following the requirements of that statute, and erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in section 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). It observed that where there is a deviation from the presumptive amount reached by application of the relevant formula, the court should explain the reasons for that deviation. It must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance. The court did not state what it found the wife’s income to be or set out the presumptive amount of maintenance owed under the statutory formula. It failed to “set forth the factors it considered and the reasons for its decision in writing or on the record” (DRL § 236 [B] [6] [d] [3]), and therefore “failed to show that it considered any of the factors enumerated in section 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. It remitted the matter to Supreme Court to determine the amount and duration of maintenance, if any, after setting forth all relevant factors that it considered in making its decision (Domestic Relations Law § 236 [B] [6] [e] [1], [2]; [f] [2]).</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Fourth Department holds that oral stipulation was not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). The First and Second Departments have held differently. The Third Department has agreed with its position.</span></p><p><span style="font-family: arial;"> In Cole v Hoover, --- N.Y.S.3d ----, 2023 WL 3914034, 2023 N.Y. Slip Op. 03103 (4th Dept., 2023) plaintiff, the former wife of defendant, sought vacatur of the judgment of divorce and a judgment declaring that the parties’ oral stipulation was “invalid and unenforceable.” Supreme Court denied her motion for summary judgment on the first cause of action, alleging that the oral stipulation was invalid because it did not comply with Domestic Relations Law § 236 (B) (3). The Appellate Division reversed. It held that the parties’ oral stipulation was not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). The statute unambiguously provides that, in order for an agreement regarding maintenance or a distributive award “made before or during the marriage” to be valid and enforceable in a matrimonial action, the agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded”. It has repeatedly held that oral stipulations do not comply with the statute. It noted that although the First and Second Departments have held differently the Third Department has agreed with its position, thus creating an even split at the Appellate Division level on that issue. It noted that the Court of Appeals has made it clear that there is “no exception” to the statute’s requirements (Matisoff v. Dobi, 90 N.Y.2d 127, 135 [1997]). </span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division held that Supreme Court erred in denying the motion on the ground that plaintiff ratified the oral stipulation. The proposition that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) could be upheld if ratified by the parties was implicitly rejected by the Court of Appeals in Matisoff. In that case, the First Department held that the parties’ oral agreement was enforceable because, inter alia, its “terms were acknowledged and ratified in the daily activities and property relations of the parties throughout their eleven-year marriage”. By reversing the First Department, the Court of Appeals necessarily rejected the contention that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) may be upheld if it is ratified by the parties. </span></p><p><br /></p><p><span style="font-family: arial;">Family Court</span></p><p><span style="font-family: arial;">Family Court denied the motion to dismiss the Neglect petition alleging a coercive and controlling relationship holding that the exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Aisha R., 2023 WL 3831887 (Fam Court, 2023) the dated October 13, 2022, the Administration for Children’s Services (”ACS”) alleged that the respondent, Ariel T., neglected the children by perpetrating acts of domestic violence against their mother, non-respondent Taisha R., in their presence. Family Court denied the motion to dismiss the petition alleging a coercive and controlling relationship. The facts alleged met the standard to survive a CPLR 3211(a)(7) motion. The most visible impact on the children alleged in the petition was that Arielle, a two-year old child, repeated the derogatory words Mr. T. used against Ms. R., including calling his mother “a bitch. The children were also negatively impacted by Mr. T.’s alleged use of them as tools in his campaign of control over Ms. R. The petition alleged that Mr. T. took all the children’s vital documents and repeatedly threatened to take the children away from Ms. R. if she does not listen to him. Utilizing the children to further exert power and control over Ms. R. creates a substantial risk of harm to not only Ms. R., but the children as well. As alleged, Mr. T.’ actions and choice to use the children as a means of control over Ms. R. showed a disregard for the well-being of the children that raised serious concern regarding his parental judgment and the effect his decisions have on the children’s mental and emotional state. In addition to the significant lack of parental judgment here, this behavior teaches the children unhealthy relationship dynamics and places them directly in between their parents. Additionally, from the power and control allegedly exerted, it could reasonably be inferred that Mr. T. inhibited Ms. R.’s own ability to provide a minimum degree of care for the children. As per the petition, Mr. T. does not allow Ms. R. to leave the home, accuses her of sleeping with everybody, does not allow her to see friends or family, takes her monthly SSI benefits, and confiscated the children’s vital documents. Without vital documents, Ms. R. was unable to even perform the basic function of enrolling her children in school, and without access to her own funds, she could not purchase necessities for herself and the children, let alone the occasional “extras” that grease the parenting wheel with small children. Additionally, the isolation from the friends and family who would provide multiple benefits and positive experiences for the children detracts from the children’s ability to build social skills and eliminates their opportunity to observe and learn what non-abusive relationships are. The exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect. Using derogatory language that the children repeat, using the children as tools to further control their mother, using isolating tactics that leave children feeling alone and unsupported, and unreasonably creating a tense home environment is not the way a reasonable and prudent parent would care for a child. Failing to distinguish this type of psychological abuse from the “undesirable but not neglectful” scenarios would mean that Family Court’s protection would not be extended to children who are impaired by non-physical forms of domestic violence.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In a juvenile delinquency proceeding the Respondent’s request for police records of officers who would not testify was granted. The Presentment Agency was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and had made no offer of proof, that the records would impeach the credibility of any officer it would call to testify.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of E.S. --- N.Y.S.3d ----, 2023 WL 3265934, 2023 N.Y. Slip Op. 23135 </span><span style="font-family: arial;">(Fam Ct, 2023) a juvenile delinquency proceeding the Respondent’s request for police records of officers who will not testify was granted. The Presentment Agency contended that it was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and has made no offer of proof, that the records would impeach the credibility of any officer it would call to testify. The Court observed that Section 245.20 of the Criminal Procedure Law provides for automatic discovery of certain categories of information favorable to the defense in a criminal proceeding, including broad disclosure of all evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to ... impeach the credibility of a testifying prosecution witness (CPL 245.20[1][k][iv]). Family Court noted that in Matter of Jayson C., the Appellate Division, First Department held that, although the Criminal Procedure Law is generally not applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]), the denial of records available to criminal defendants under CPL 245.20(1)(k)(iv), which broadly requires disclosure of all impeachment evidence, deprived the respondent in a juvenile delinquency proceeding of equal protection of the law (Matter of Jayson C., 200 A.D.3d at 447, 159 N.Y.S.3d 40). Criminal Procedure law 245.20(1)(k) also provides for disclosure of six other categories of evidence, including all evidence and information that tends to “(i) negate the defendant’s guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant’s culpability as to a charged offense; (iii) support a potential defense to a charged offense; (v) undermine evidence of the defendant’s identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment.” Although the court in Matter of Jayson C. did not address the six remaining categories of information that must be disclosed pursuant to CPL 245.20(1)(k), the disclosure provided for therein mirrors and broadens the constitutional protections developed in case law, including the obligation of the state to disclose all evidence or information which is “favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses”. Family Court Act § 331.2 and § 331.4 set forth the general scope of discovery in juvenile delinquency proceedings, which in addition to specific items set forth in the statute, directs that the Presentment Agency shall disclose to the respondent “anything required to be disclosed ... pursuant to the constitution of this state or of the United States” (FCA § 331.2 [1][g]). Thus, although the Family Court Act is silent regarding the specific statutory protections memorialized in CPL 245.20(1)(k)(i)-(iii), (v)-(vii), to deny this disclosure would violate the right to equal protection as per Matter of Jayson C. and as required by constitutional precedents. The court found that the first espoused rationale applies insofar as the records requested by Respondent generally would tend to be favorable to the defense. This portion of the motion was granted and the Presentment Agency was directed to produce to Respondent the police records of all officers assigned to the case, who assisted in the arrest, or who responded at the scene.</span></p><p><br /></p><p><span style="font-family: arial;">June 7, 2023</span></p><p><span style="font-family: arial;">Appellate Divison, First Department</span></p><p><span style="font-family: arial;">Where the husband elected to receive his compensation in stock options and RSUs, which could have been converted to cash at commencement the the commencement date of valuation was appropriate.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Lorne v Lorne, --- N.Y.S.3d ----, 2023 WL 3742967, 2023 N.Y. Slip Op. 02942 (1st Dept.,2023) the Supreme Court, among other things, awarded defendant wife $7,000 in monthly maintenance retroactive to October 18, 2016; (2) determined that plaintiff husband’s Charles Schwab accounts ending in –2077, –2005, and –2479 were his separate property; (3) determined that property located at 162 Ken Rose Lane in Oregon (Ken Rose) was the husband’s separate property; (4) determined that the husband’s stock options and restricted units (RSU) in Teledyne Technologies should be valued as of date of commencement; (5) determined that the parties’ marital estate should be distributed 60% to the husband and 40% to the wife; (6) awarded the husband a 100% credit for his payment of post-commencement carrying costs on 50 Madison Avenue; (7) authorized the husband to make decisions in the ongoing litigation involving 50 Madison Avenue and to receive a credit for 60% of his related legal fees post-commencement; (8) credited the wife 40% of transfers made by the husband of $420,000, $90,000, and $534,814; (9) and determined the wife’s share of the husband’s net deferred income based on taxes withheld. The Appellate Division modified by reducing the husband’s “off the top” credit for his payment of post-commencement carrying costs on 50 Madison Avenue from 100% to 40%, vacating credits to the wife of $213,600 and $168,000, increasing the wife’s credit of $36,000 to $60,000, increasing the wife’s distributive share of the husband’s deferred compensation award by $104,237.08, deleting any calculation of any credits to the husband for overpayment of maintenance, and otherwise affirmed. </span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division found no reason to disturb the trial court’s determination that the husband’s stock options and RSU in Teledyne Technologies were properly valued as of the commencement date. Generally, active assets are valued as of the commencement date while passive assets are valued closer to the date of trial, however this must be viewed as a helpful guidepost rather than a rigid rule (see McSparron v. McSparron, 87 N.Y.2d 275, 287–288, 639 N.Y.S.2d 265 [1995]). The husband testified that he was a board member and Chairman of the Audit Committee at Teledyne, and his duties included attending meetings, keeping abreast of the industry, and acting as a conduit for information with audit partners. Notably, the husband elected to receive his compensation in stock options and RSUs, which could have been converted to cash at commencement. Under these circumstances, it found that the commencement date of valuation was appropriate.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division held that the court providently exercised its discretion in awarding the husband 60% of the marital estate, and the wife 40%. The parties met in their fifties and did not have children together. While she largely managed the parties’ properties, the wife did not work outside the home. The wife also occasionally participated in the husband’s business-related events, but there was some testimony that the wife’s behavior at these events created friction with his associates. It was undisputed that while the action was pending the wife sent letters disparaging the husband to his employer and other professional contacts. Although the husband’s income increased dramatically during the marriage, his highest earning years occurred in the three years preceding commencement of the action when the parties had effectively set up separate households in New York and Connecticut. Under these circumstances, the court’s division of marital assets was equitable.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;"> The court noted that the husband was not entitled to any credits for temporary maintenance payments that exceeded the permanent maintenance award as any difference was minimal due to the tax impact (see Wechsler v. Wechsler, 58 A.D.3d 62, 84, 866 N.Y.S.2d 120 [1st Dept. 2008], appeal dismissed 12 N.Y.3d 883, 883 N.Y.S.2d 177, 910 N.E.2d 1007 [2009]).</span></p><p><span style="font-family: arial;"><br /></span></p><p><br /></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><br /></p><p><span style="font-family: arial;">Based upon the defendant’s admissions that she utilized cash from the business to pay for certain personal expenses, as well as some employee salaries, the Supreme Court providently exercised its discretion in imputing an annual income of $80,000 to the defendant. Where the noncustodial parent is contributing the majority of the financial support of the parties’ children, the court may determine that the noncustodial parent is entitled to declare the children as dependents.</span></p><p><span style="font-family: arial;"><span> </span><span> </span>In Miller v Miller, </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">--- N.Y.S.3d ----, 2023 WL 3729829, 2023 N.Y. Slip Op. 02872 (2d Dept.,2023) the amended judgment of divorce, inter alia, (1) valued Healthcare Medical Services, PLLC, at $2,885,100, (2) awarded the defendant 20% of the value of Healthcare Medical Services, PLLC, (3) awarded the defendant $5,000 per month in child support, and (4) directed the plaintiff to pay 75% of all child support add-ons. The Appellate Division modified by adding a provision directing that the plaintiff is authorized to declare all of the parties’ unemancipated children as dependents on his personal income tax returns and otherwise affirmed. The parties were married on June 21, 1994, and had eight children. The plaintiff was a medical doctor and the sole owner of two professional companies, Hanan Miller, MD, P.C., and Healthcare Medical Services, PLLC (HMS). The defendant owned and operated an upscale baby clothing store called Lavish Layette. The parties agreed that the defendant would have sole legal and residential custody of the parties’ unemancipated children. Supreme Court, among other things, imputed an annual income of $80,000 to the defendant and determined that the defendant was entitled to child support in excess of the statutory cap.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division found that plaintiff’s contention that insufficient income was imputed to the defendant was without merit. The defendant testified at the trial that her amended 2017 tax return showed that she had an annual income of $45,436 from her business, Lavish Layette. However, the bookkeeper for Lavish Layette testified that the defendant received disbursements from the business in 2017 totaling $64,836.71. Based upon the defendant’s admissions that she utilized cash from the business to pay for certain personal expenses, as well as some employee salaries, the Supreme Court providently exercised its discretion in imputing an annual income of $80,000 to the defendant.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division observed that where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both” ( Domestic Relations Law § 240[1–b][c][3]). The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. “Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning why there should or should not be a departure from the prescribed percentage”. Supreme Court stated that it applied the child support percentage to the amount above the statutory cap primarily due to the parties’ considerable income and the needs of the children. Under the circumstances presented, the court providently exercised its discretion in doing so.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Court noted that where, as here, the noncustodial parent is contributing the majority of the financial support of the parties’ children, “the court may determine that the noncustodial parent is entitled to declare the children as dependents on his or her income tax returns.” Under the circumstances here, the plaintiff was entitled to declare all of the parties’ unemancipated children as his dependents for income tax purposes.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Where the mother’s initial papers submitted in support of her application for an award of counsel fees did not seek relief under 22 NYCRR 130–1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In LeBoeuf v Greene, --- N.Y.S.3d ----, 2023 WL 3729753, 2023 N.Y. Slip Op. 02870(2d Dept.,2023) in July 2020, the parties entered into a stipulation giving the mother final decision-making authority and residential custody of the child, with parental access to the father. In September 2020, the mother moved to modify the stipulation based upon the father’s alleged misrepresentations to her that in August 2020 he drove with the child to visit his parents in Alabama when he in fact flew with the child. The mother’s motion papers did not seek an award of counsel fees. At a court conference while the motion remained pending and undecided, the father’s counsel acknowledged to the Supreme Court that the father had lied to the mother when he told her that he did not fly with the child to Alabama in August 2020. The mother’s counsel made an oral application for an award of counsel fees, and the court permitted the mother to submit a written application. The mother then filed a written application for an award of counsel fees, which the father opposed. Supreme Court awarded her counsel fees of $25,000. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division observed that it was clear from the record that the court awarded counsel fees pursuant to either 22 NYCRR 130–1.1 or Domestic Relations Law § 237(b). Under either standard the court improvidently exercised its discretion in granting the application. At the December 2, 2020 court conference, at which the Supreme Court permitted the mother to make a written application for counsel fees, the court did not state whether the application should be made under 22 NYCRR 130–1.1. Moreover, the court did not, either at the December 2, 2020 court conference or in the fee order, specifically make a finding that the father’s conduct was “frivolous” within the meaning of 22 NYCRR 130–1.1. Additionally, the mother’s initial papers submitted in support of her application for an award of counsel fees did not seek relief under 22 NYCRR 130–1.1, or set forth any statutory basis for an award of counsel fees. Under these circumstances, to the extent the court granted the mother’s application for an award of counsel fees pursuant to 22 NYCRR 130–1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard.</span></span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">To the extent that the Supreme Court granted the mother’s application for an award of counsel fees under 22 NYCRR 130–1.1, the court improperly based its determination to grant the application, in part, on the father’s act of lying to the mother about flying to Alabama with the parties’ child, since this conduct occurred outside of the proceeding before the court. The court also based its determination to grant the mother’s application on misrepresentations the father made to the court during court conferences in September 2020 and October 2020. However, since the record did not contain transcripts of those court proceedings, it was unable to determine what, if any, “material factual statements that are false” were asserted by the father at those court conferences (22 NYCRR 130–1.1[c][3]). </span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">To the extent that the Supreme Court granted the mother’s application for an award of counsel fees pursuant to Domestic Relations Law § 237(b), the court did not adequately consider the disparate financial circumstances of the parties. Under the unique circumstances of this case, the Supreme Court improvidently exercised its discretion in granting the mother’s application for an award of counsel fees.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Defendant’s testimony as to his income, coupled with undisputed evidence of his educational background and his vague denial of recollection as to whether the accusations underlying his termination from his previous full-time position had merit, provided a basis for the court to impute income to the defendant. Court should not have, sua sponte, taken judicial notice of information regarding the defendant’s income on a certain website.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Anyanwu v Anyanwu, --- N.Y.S.3d ----, 2023 WL 3729819, 2023 N.Y. Slip Op. 02859 (2d Dept.,2023) the Appellate Division affirmed the judgment of divorce which insofar as appealed from, awarded the plaintiff maintenance of $423.50 per month for a period of seven years and child support of $1,876.44 per month. The plaintiff and the defendant were married in December 1994 and have four children, three of whom were unemancipated at the time of trial. In January 2017, the plaintiff commenced this action for a divorce and ancillary relief. After a nonjury trial, the Supreme Court issued a decision in which it, inter alia, imputed income to the defendant in the amount of $92,942 per year. The court subsequently entered a judgment of divorce upon its decision after trial, awarding the plaintiff maintenance in the sum of $423.50 per month for a period of seven years and child support in the sum of $1,876.44 per month, calculated with the defendant’s imputed income, among other things.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division found that Supreme Court providently exercised its discretion by imputing $92,942 in annual income to the defendant when computing his maintenance and child support obligations. The defendant’s testimony as to his income in 2017, coupled with the undisputed evidence of his educational background and his vague denial of recollection as to whether the accusations underlying his termination from his previous full-time position had merit, provided a basis for the court, in the exercise of its discretion, to impute income to the defendant. Moreover, while the defendant is correct that the court should not have, sua sponte, taken judicial notice of information regarding the defendant’s income on a certain website (see OneWest Bank, FSB v. Berino, 158 A.D.3d 811, 813, 71 N.Y.S.3d 563; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 818, 962 N.Y.S.2d 301), this error was harmless. The defendant’s own admission to earning more than $96,000 in 2017 provided an independent basis for the court to impute income to him in the amount of $92,942 per year.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">There is no express requirement to submit certified copies of birth certificates in a proceeding pursuant to FCA § 661(a). Although an application to USCIS for SIJS must be supported by documentary evidence of the applicant’s age, Family Court is only required to ascertain the juvenile’s age. There is no statutory requirement that a petitioner submit any particular evidence to establish the juvenile’s age.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Joel A.A.R.,.--- N.Y.S.3d ----, 2023 WL 3729811, 2023 N.Y. Slip Op. 02881(2d Dept.,2023) the Appellate Division reversed the orders of the family court and made specific findings to enable the child to petition the United States Citizen and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). It held that contrary to the Family Court’s determination, there is no express requirement to submit certified copies of birth certificates in a proceeding such as this pursuant to Family Court Act § 661(a) (see generally Matter of Rosa Amanda L.R. v. Carlos Arnoldo O.R., 189 A.D.3d 1250, 134 N.Y.S.3d 223). Although an application to USCIS for SIJS must be supported by “[documentary evidence of the [applicant’s] age, in the form of a valid birth certificate, official government-issued identification, or other document that in USCIS’ discretion establishes the [applicant’s] age” (8 CFR 204.11[d][2]), in proceedings pursuant to Family Court Act § 661(a), the Family Court is only required to ascertain the juvenile’s age, and there is no statutory requirement that a petitioner submit any particular evidence to establish the juvenile’s age. For purposes of this proceeding pursuant to Family Court Act § 661(a), the record supported a finding that the child was under the age of 21. Based upon its independent factual review, it found that the child’s best interests would be served by the appointment of the mother as his guardian. Pursuant to SCPA 1705(1)(a), “[u]pon presentation of the petition process shall issue ... [t]o the ... parents ... if such persons are within the state and their residences therein are known.” Nevertheless, even where, as here, a parent is not within the state and service upon that parent is not required pursuant to SCPA 1705(1)(a), the Family Court possesses discretion to issue process to any relative “domiciled in its county or elsewhere” (id. § 1705[3]). However, in this case, it found that the record supported dispensing with service on the father. The record supported findings that the child was under the age of 21 and unmarried; that the mother should have been appointed as the child’s guardian; and that the child was dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i). Additionally, based upon its independent factual review, the record supported a finding that reunification of the child with his father was not a viable option due to parental abandonment and the record supported a finding that it would not be in the best interests of the child to return to Honduras, his previous country of nationality and last habitual residence.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Divison, Fourth Department </span></p><p><br /></p><p><span style="font-family: arial;">Screen shots of text messages between mother and children were properly admitted into evidence where the identity of the senders and receivers was sufficiently authenticated by the content of the text messages, as well as the grandmother’s testimony that she observed one of the children using his phone at the times the text messages were sent</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of D.T., v. C.T., --- N.Y.S.3d ----, 215 A.D.3d 1232, 2023 WL 3160145, 2023 N.Y. Slip Op. 02202 (4th Dept.., 2023) the Appellate Division rejected the argument of the father and the attorney for the children (AFC) that the appeal should be dismissed due to the mother’s improper service of the notice of appeal (see CPLR 2103 [a]). Inasmuch as neither the father nor the AFC were prejudiced as a result of the mother’s mistake, it exercised its discretion to disregard the irregularity (citing CPLR 2001, 5520 [a]; M Entertainment, Inc. v. Leydier, 71 A.D.3d 517, 518, 897 N.Y.S.2d 402 [1st Dept. 2010]).</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division rejected the mother’s contention that Family Court erred in admitting into evidence two exhibits containing screenshots of text messages between the mother and two of the children. The identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages, as well as by the maternal grandmother’s testimony that she observed one of the subject children using his phone at the times the text messages were sent. Further, there was no evidence that any omitted material was necessary for explanatory purposes, and the mother was free to introduce other text messages between herself and the child that would have resolved any purported distortion caused by admitting in evidence only portions of the text conversation.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division rejected the mother’s contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child “must zealously advocate the child’s position.” However, an attorney for the child is entitled to advocate a position that is contrary to a child’s wishes when the attorney is “convinced ... that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” (22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child’s wishes, the attorney is still required to “inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position” (22 NYCRR 7.2 [d] [3]). Here, the children’s wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record established that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division concluded that there was a sound and substantial basis in the record to support [the court’s] determination that it was in the children’s best interests to award sole custody to the father and a sound and substantial basis in the record supporting the determination to impose supervised visitation for the mother inasmuch as the record established that the mother frequently disparaged the father to the children, exposed the children to domestic violence, unwittingly allowed pornographic images of herself and her partner to be sent to the children’s mobile devices, and failed to maintain a stable home environment for a period of several years. It agreed with the mother that the court should have set a visitation schedule rather than ordering visitation as agreed upon by the parties inasmuch as the record demonstrated that an order directing supervised visitation as mutually agreed upon by the parties would be untenable under the circumstances. It modified the order accordingly and remitted the matter to Family Court to fashion an appropriate schedule for supervised visitation. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Supreme Court</span></p><p><br /></p><p><span style="font-family: arial;">Wife purged her contempt of court and satisfied the purge amount by way of serving her entire incarceration period but the balance of the Wife’s pendente lite child support and maintenance arrears remained due and payable by the Wife to the Husband</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In T.H., v. M.B., --- N.Y.S.3d ----, 2023 WL 3731263, 2023 N.Y. Slip Op. 23166 ( Sup Ct, 2023) by Decision and Order dated March 30, 2023, the Court found the Wife guilty of civil contempt pursuant to Judiciary Law Section § 753(3), for her willful non-compliance with the terms of the orders of the Court by failing to pay monthly pendente lite spousal support in the total amount of $48,529. The Court gave the Wife until April 28, 2023, to purge her contempt by paying the Husband $24,264.50, or half of the full arrears due, or be subject to further sanction, including arrest. This matter reconvened on April 28, 2023, and the Wife did not fully purge her contempt. She paid a total of $3,500. The court issued an Order of Commitment committing the Wife to the Custody of the Sheriff of New York County for delivery to the New York City Department of Corrections to be held for a maximum term of three (3) weeks commencing April 28, 2023, unless she purged herself of her contempt by payment of$20,764.50 to the Husband. By Amended Order of Commitment dated May 16, 2023, the Court modified the Wife’s incarceration term to nineteen (19) days, commencing April 28, 2023 and ending on May 17, 2023. On May 17, 2023, the Wife was discharged from the custody of the New York City Department of Corrections. The Court now found that the Wife satisfied her purge amount of $20,764.50 by completing her incarceration period of nineteen days. The Court held that by serving the full term, the Wife had effectively satisfied the purge amount of $20,764.50. The Court found it was manifestly unjust to enter a money judgment against the Wife for the purge amount following her completed incarceration period. It held that it is either one or the other, not both. The Court ordered (1) that the Wife had purged her contempt of court and satisfied the $20,764.50 purge amount by way of serving her entire incarceration period; (2) that the balance of the Wife’s pendente lite child support and maintenance arrears of $24,264.50 under the Court’s March 30, 2023, Decision and Order remained due and payable by the Wife to the Husband; and (3) the Husband was entitled to a money judgment against the Wife in the sum of $24,264.50, representing the balance due on the total arrears amount of $48,529.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Family Court</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Family Court denied the motion to dismiss the Neglect petition alleging a coercive and controlling relationship holding that the exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Matter of Aisha R., 2023 WL 3831887 (Fam Court, 2023) the dated October 13, 2022, the Administration for Children’s Services (”ACS”) alleged that the respondent, Ariel T., neglected the children by perpetrating acts of domestic violence against their mother, non-respondent Taisha R., in their presence. Family Court denied the motion to dismiss the petition alleging a coercive and controlling relationship. The facts alleged met the standard to survive a CPLR 3211(a)(7) motion. The most visible impact on the children alleged in the petition was that Arielle, a two-year old child, repeated the derogatory words Mr. T. used against Ms. R., including calling his mother “a bitch. The children were also negatively impacted by Mr. T.’s alleged use of them as tools in his campaign of control over Ms. R. The petition alleged that Mr. T. took all the children’s vital documents and repeatedly threatened to take the children away from Ms. R. if she does not listen to him. Utilizing the children to further exert power and control over Ms. R. creates a substantial risk of harm to not only Ms. R., but the children as well. As alleged, Mr. T.’ actions and choice to use the children as a means of control over Ms. R. showed a disregard for the well-being of the children that raised serious concern regarding his parental judgment and the effect his decisions have on the children’s mental and emotional state. In addition to the significant lack of parental judgment here, this behavior teaches the children unhealthy relationship dynamics and places them directly in between their parents. Additionally, from the power and control allegedly exerted, it could reasonably be inferred that Mr. T. inhibited Ms. R.’s own ability to provide a minimum degree of care for the children. As per the petition, Mr. T. does not allow Ms. R. to leave the home, accuses her of sleeping with everybody, does not allow her to see friends or family, takes her monthly SSI benefits, and confiscated the children’s vital documents. Without vital documents, Ms. R. was unable to even perform the basic function of enrolling her children in school, and without access to her own funds, she could not purchase necessities for herself and the children, let alone the occasional “extras” that grease the parenting wheel with small children. Additionally, the isolation from the friends and family who would provide multiple benefits and positive experiences for the children detracts from the children’s ability to build social skills and eliminates their opportunity to observe and learn what non-abusive relationships are. The exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect. Using derogatory language that the children repeat, using the children as tools to further control their mother, using isolating tactics that leave children feeling alone and unsupported, and unreasonably creating a tense home environment is not the way a reasonable and prudent parent would care for a child. Failing to distinguish this type of psychological abuse from the “undesirable but not neglectful” scenarios would mean that Family Court’s protection would not be extended to children who are impaired by non-physical forms of domestic violence.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In a juvenile delinquency proceeding the Respondent’s request for police records of officers who would not testify was granted. The Presentment Agency was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and had made no offer of proof, that the records would impeach the credibility of any officer it would call to testify.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of E.S. --- N.Y.S.3d ----, 2023 WL 3265934, 2023 N.Y. Slip Op. 23135 </span></span><span style="font-family: arial;">(Fam Ct, 2023) a juvenile delinquency proceeding the Respondent’s request for police records of officers who will not testify was granted. The Presentment Agency contended that it was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and has made no offer of proof, that the records would impeach the credibility of any officer it would call to testify. The Court observed that Section 245.20 of the Criminal Procedure Law provides for automatic discovery of certain categories of information favorable to the defense in a criminal proceeding, including broad disclosure of all evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to ... impeach the credibility of a testifying prosecution witness (CPL 245.20[1][k][iv]). Family Court noted that in Matter of Jayson C., the Appellate Division, First Department held that, although the Criminal Procedure Law is generally not applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]), the denial of records available to criminal defendants under CPL 245.20(1)(k)(iv), which broadly requires disclosure of all impeachment evidence, deprived the respondent in a juvenile delinquency proceeding of equal protection of the law (Matter of Jayson C., 200 A.D.3d at 447, 159 N.Y.S.3d 40). Criminal Procedure law 245.20(1)(k) also provides for disclosure of six other categories of evidence, including all evidence and information that tends to “(i) negate the defendant’s guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant’s culpability as to a charged offense; (iii) support a potential defense to a charged offense; (v) undermine evidence of the defendant’s identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment.” Although the court in Matter of Jayson C. did not address the six remaining categories of information that must be disclosed pursuant to CPL 245.20(1)(k), the disclosure provided for therein mirrors and broadens the constitutional protections developed in case law, including the obligation of the state to disclose all evidence or information which is “favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses” . Family Court Act § 331.2 and § 331.4 set forth the general scope of discovery in juvenile delinquency proceedings, which in addition to specific items set forth in the statute, directs that the Presentment Agency shall disclose to the respondent “anything required to be disclosed ... pursuant to the constitution of this state or of the United States” (FCA § 331.2 [1][g]). Thus, although the Family Court Act is silent regarding the specific statutory protections memorialized in CPL 245.20(1)(k)(i)-(iii), (v)-(vii), to deny this disclosure would violate the right to equal protection as per Matter of Jayson C. and as required by constitutional precedents. The court found that the first espoused rationale applies insofar as the records requested by Respondent generally would tend to be favorable to the defense. This portion of the motion was granted and the Presentment Agency was directed to produce to Respondent the police records of all officers assigned to the case, who assisted in the arrest, or who responded at the scene.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">May 31, 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, First Department</span></p><p><br /></p><p><span style="font-family: arial;">Defendant was the monied spouse in light of the parties’ statements of net worth, which showed that defendant’s net worth was more than double that of plaintiff’s. Supreme Court providently exercised its discretion in holding plaintiffs’ motion in abeyance pending her submission of an updated statement of net worth.</span></p><p><span style="font-family: arial;">In Binn v Binn, --- N.Y.S.3d ----, 2023 WL 3588204 (Mem), 2023 N.Y. Slip Op. 02759(1st Dept., 2023) the Appellate Division affirmed an order which granted the wife’s motion for counsel fees. It held that Supreme Court providently exercised its discretion in holding plaintiffs’ motion in abeyance pending her submission of an updated statement of net worth, instead of denying the motion without prejudice to renewal (see 22 NYCRR 202.16[k][2], [5])). Under the circumstances, directing the plaintiff to file an updated statement of net worth, rather than denying the motion with leave to renew, served the interests of justice and judicial economy. Further, the record did not support a finding that defendant was prejudiced by the court’s denial of his request to challenge plaintiff’s updated statement of net worth. It also found that the court correctly determined that defendant was the monied spouse in light of the parties’ statements of net worth, which showed that defendant’s net worth was more than double that of plaintiff’s. In addition, the finding was proper in view of the parties’ earning history and earning potential. The fact that plaintiff was able to pay her counsel fees did not preclude an award in her favor as plaintiff was not required to spend down finite assets to cover those fees.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Cyprus court’s determination that mother had not met her burden as to Grave Risk of Harm Defense is not tantamount to a determination on the merits of her domestic violence claims for purposes of the custody determination to be made by the New York court. </span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Gould v Kontogiorge, --- N.Y.S.3d ----, 2023 WL 3633433, 2023 N.Y. Slip Op. 02824 (1st Dept.,2023) the mother appealed from an order of the Supreme Court, which, inter alia, directed her to reimburse plaintiff father, $1,900 for payments made to visitation supervisors through September 30, 2021, and, upon final resolution of this matter, to pay $4,687.90 for his and the child’s travel costs to New York from Cyprus (February 18, 2022 order). The Appellate Division held that the motion court should not have awarded the father reimbursement for the $1900 he allegedly paid to visitation supervisors, as he offered no proof of payment beyond unsupported assertions in his motion papers. His motion was unaccompanied by any documentation, or by affidavits from the visitation supervisors, substantiating the payments (Matter of Parente v. Parente, 193 AD3d 862 [2d Dept 2021] ). In turn, it vacated the finding of civil contempt (to the extent not already purged) and the resultant $6,437.50 counsel fee award imposed against the mother for failing to timely reimburse the father for this expense as set forth in the motion court’s orders of September 20 and 27, 2022. It affirmed the February 18, 2022 order, as the father did produce adequate proof of the costs of the child’s return to the U.S. from Cyprus. He submitted documentation of credit card charges for payments made to American Airlines in March 2021, on a Visa held by nonparties, and one of the nonparties is listed on the father’s Net Worth Statement as an individual who has extended him personal loans. However, that aspect of the order that limited the proof of domestic violence that the mother may try to introduce at the forthcoming custody trial to incidents that have occurred since the conclusion of the Hague Convention proceedings, was vacated. It found that the court correctly recognized “[a] decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence” (Matter of Katz v. Katz, 117 AD3d 1054, 1055 [2d Dept 2014] ). However, it then effectively vested the Hague Convention proceedings with preclusive effect as to claims of domestic violence, by ruling that, at the impending custody hearing, the mother could only seek to introduce evidence of domestic violence that has occurred since those proceedings’ conclusion. There should have been no such temporal limitation imposed on the domestic violence evidence the mother may seek to introduce. The mother introduced affidavit testimony of domestic violence to buttress her “grave risk of harm” defense to the child’s return pursuant to Article 13(b) of the Convention. However, the Cyprus court’s determination that she had not met her burden as to such defense is not tantamount to a determination on the merits of her domestic violence claims for purposes of the custody determination to be made by the New York court. As the U.S. Supreme Court has recognized, “return [of a child pursuant to the Hague Convention] is merely a provisional remedy that fixes the forum for custody proceedings” (Golan v. Saada, __US__, 142 S Ct 1880, 1888 [2022]). </span></p><p><span style="font-family: arial; white-space: pre;"> </span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><br /></p><p><span style="font-family: arial;">Family Court erred in granting motion to dismiss the custody petition on the ground of forum non conveniens. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it must stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Water v Yacopino, --- N.Y.S.3d ----, 2023 WL 3607006, 2023 N.Y. Slip Op. 02792 (2d Dept.,2023) the parties had one child in common. In November 2013, the Family Court awarded the mother physical custody and the father parental access. In May 2021, the father commenced this proceeding to enforce the November 2013 order. The father argued, inter alia, that the mother violated the November 2013 order by relocating with the child to Texas and preventing the father from having parental access with the child. In July 2021, the mother moved, pursuant to Domestic Relations Law § 76–f to dismiss the petition on the ground of forum non conveniens. Family Court granted the mother’s motion. The Appellate Division observed that pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act,(UCCJEA), a court in this State which makes an initial custody determination has exclusive, continuing jurisdiction over that determination so long as, inter alia, one parent remains a resident of New York (see id. § 76–a[1] ). Domestic Relations Law § 76–f(1) provides that a court of this State which has jurisdiction under the UCCJEA may decline to exercise jurisdiction if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum. The issue of inconvenient forum dismissal is addressed to the Family Court’s discretion after consideration of the statutory factors set forth in Domestic Relations Law § 76–f(2). ‘Particularly relevant’ to the analysis is the nature and location of evidence. It agreed with the Family Court that Texas was the more appropriate and convenient forum. The child had not resided in New York since May of 2020. The child also had no significant connection to New York since 2020, and the substantial, relevant evidence pertaining to the child’s care, protection, education, and personal relationships was in Texas, not New York. The statutory factors weighed in favor of the court’s determination to decline to exercise jurisdiction. Domestic Relations Law § 76–f(3) specifies that “[i]f a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state.” Accordingly, the Family Court erred in granting the motion to dismiss the petition, and it remitted the matter to the Family Court, for further proceedings pursuant to Domestic Relations Law § 76–f(3), including the entry of an order staying all proceedings in the above-entitled proceeding on condition that a child custody proceeding is promptly commenced in Texas.</span></p><p><br /></p><p><span style="font-family: arial;">Support Magistrate providently exercised her discretion when she imputed annual income to the father based upon his ability to work full time for minimum wage in calculating his child support obligation<span style="white-space: pre;"> </span> </span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Lincor v Crowell, --- N.Y.S.3d ----, 2023 WL 3607026, 2023 N.Y. Slip Op. 02784 (2d Dept.,2023) the father filed a petition for a downward modification of his child support obligation. After a hearing, the Support Magistrate directed the father to pay child support of $86 per week. The Support Magistrate determined that the father had failed to submit competent medical evidence to support his claimed inability to work, and imputed annual income to the father based upon his ability to work full time for minimum wage in calculating his child support obligation. The Appellate Division affirmed finding that he failed to provide competent medical evidence to show that his alleged medical conditions prevented him from working. Thus, the Support Magistrate providently exercised her discretion. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Defendant was not deprived of her right to counsel pursuant to FCA § 262, nor were her constitutional due process rights violated, by the forensic evaluator’s request that she complete a parenting survey without the assistance of her counsel. There is no right to the participation or assistance of counsel.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Primero v Lee, --- N.Y.S.3d ----, 2023 WL 3607048, 2023 N.Y. Slip Op. 02801(2d Dept.,2023) the parents were married in 2016 and had one child, born in October 2016. The plaintiff commenced the action for divorce in October 2021. The Supreme Court appointed a mental health professional to conduct a forensic evaluation of the parties and the child. As part of the evaluation, the forensic evaluator requested that the defendant complete a parenting survey without consulting anyone, including her attorney. The defendant did not complete the survey and moved to enjoin the forensic evaluator from requiring that she submit written answers to the survey or to allow her to consult with counsel regarding the content of the survey and responses to the questions contained in it prior to submitting written answers to the forensic evaluator, and to preclude the parties from seeking the production of the written response to the parenting survey in any discovery request pursuant to CPLR article 31. The court denied the motion. The Appellate Division affirmed. It held that defendant was not deprived of her statutory right to counsel pursuant to Family Court Act § 262, nor were her constitutional due process rights violated, by the forensic evaluator’s request that she complete a parenting survey without the assistance of her counsel. Even in those instances where counsel has been permitted to be present for a client’s forensic examination in the context of a termination of parental rights proceeding, or in the context of a pre-retention psychiatric examination, it has been determined that “there is no right to the participation or assistance of counsel”, and counsel “who interferes in any way with the conduct of such examination may rightly be excluded” (Matter of Alexander L., 60 N.Y.2d at 329, 469 N.Y.S.2d 626, 457 N.E.2d 731).</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Family Court may revoke a suspended judgment after a hearing if it finds that the parent failed to comply with one or more of the conditions of the suspended judgment. A parent’s attempt to comply with the literal provisions of the suspended judgment is not enough. The parent must also have gained insight into the problems that were preventing the children’s return to his or her care.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Marish G, --- N.Y.S.3d ----, 215 A.D.3d 966, 2023 WL 3083030, 2023 N.Y. Slip Op. 02124 (2d Dept.,2023) the Appellate Division affirmed an order which found that the mother violated the terms and conditions of the suspended judgments contained in two prior orders of the court (one as to each child), revoked the suspended judgments, and terminated the mother’s parental rights. It held that the Family Court may revoke a suspended judgment after a hearing if it finds, by a preponderance of the evidence, that the parent failed to comply with one or more of the conditions of the suspended judgment. When determining compliance with a suspended judgment, it is the parent’s obligation to demonstrate that progress has been made to overcome the specific problems which led to the removal of the children. A parent’s attempt to comply with the literal provisions of the suspended judgment is not enough. The parent must also have gained insight into the problems that were preventing the children’s return to his or her care. A preponderance of the evidence established that the mother failed to comply with the conditions of the suspended judgments during their one-year terms and that she failed to demonstrate that she had made progress to overcome the specific problems which led to the removal of the subject children. The petitioner was not required to prove that it had exercised diligent efforts to reunify the mother and the children since the mother had previously admitted that she permanently neglected the children. A separate dispositional hearing was not required before revoking the suspended judgments and terminating her parental rights. The Family Court may enforce a suspended judgment without the need for a separate dispositional hearing where, as here, the record demonstrates that the court has presided over prior proceedings from which it became acquainted with the parties, and the record showed that the court was aware of and considered the child[ren]’s best interests.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The legality of a marriage is to be determined by the law of the place where it is celebrated. The parties’ religious marriage in Florida was not valid under Florida law since Florida requires a marriage license for a marriage to be valid.</span><span style="font-family: arial; white-space: pre;"> </span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Bernstein v Benchemoun, --- N.Y.S.3d ----, 2023 WL 3486325, 2023 N.Y. Slip Op. 02637 (2d Dept., 2023) the parties were married on February 7, 2013, in a Jewish religious ceremony in Florida. At the ceremony the parties executed a religious marriage contract, known as a ketubah, but they did not obtain a marriage license from the State of Florida. The parties then came to New York, where they executed a second ketubah in the presence of a rabbi. In June 2018, the plaintiff commenced the action for a divorce. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint on the ground, among others, in effect, of lack of subject matter jurisdiction because there was no valid marriage between the parties. Supreme Court granted the defendant’s motion. The Appellate Division affirmed. It observed that the general rule is that the legality of a marriage is to be determined by the law of the place where it is celebrated. Since 1967, Florida has required a marriage license for a marriage to be valid, and a person solemnizing a marriage must require that the parties to the marriage produce a marriage license. The parties’ religious marriage in Florida was not valid under Florida law and was not cognizable in New York. The plaintiff contended that a marriage was solemnized in New York when the parties executed a second ketubah in New York, in the presence of a rabbi. However, the rabbi who supervised the execution of the second ketubah testified that he never solemnized a marriage, and could not have solemnized a marriage since the parties were already married under Jewish law. The Appellate Division held that a finding that there was a solemnized marriage would require an analysis of religious doctrine, which could offend the First Amendment of the United States Constitution (citing First Presbyt. Church of Schenectady v. United Presbyt. Church in U.S. of Am., 62 N.Y.2d 110; Avitzur v. Avitzur, 58 N.Y.2d 108). Thus, under the circumstances, the Supreme Court could not determine that there was a cognizable marriage in New York.</span></p><p><br /></p><p><span style="font-family: arial;">Where an order of the supreme court or of another court of competent jurisdiction requires support of the child, the Family Court may only entertain applications to enforce or modify the order. Because there was an order of support the Support Magistrate did not have jurisdiction to entertain that branch of the petition.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Dawson v Iskhakov, --- N.Y.S.3d ----, 2023 WL 3486585, 2023 N.Y. Slip Op. 02660 (2d Dept.,2023) the parties were divorced and had one child. In their April 17, 2017 judgment of divorce, issued on consent, the parties agreed that they would each pay child support to the child’s maternal grandmother. In June 2021, the mother filed a petition, seeking, child support. A Support Magistrate dismissed the petition for lack of subject matter jurisdiction. Family Court denied the mother’s objections. The Appellate Division affirmed. It held that Family Court possesses only the power which is explicitly conferred on it by statute. Pursuant to Family Court Act § 461(a), “[i]n the absence of an order of the supreme court or of another court of competent jurisdiction requiring support of the child, the family court may entertain a petition and make an order for its support.: Family Court Act § 461(b) clarifies that, where “an order of the supreme court or of another court of competent jurisdiction requires support of the child,” the Family Court may only entertain applications to enforce or modify the order. Here, the petition sought, inter alia, to establish an order of support rather than modify or enforce an existing order. Because there was already an order of support in effect that was issued by the Supreme Court, the Support Magistrate did not have jurisdiction to entertain that branch of the petition.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Family Court Act § 1046(a)(ii) permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred, and, in such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Erica H.-J, --- N.Y.S.3d ----, 2023 WL 3486499, 2023 N.Y. Slip Op. 02661 (2d dept.,2023) on the morning of Monday, January 18, 2016, the child Erica H.-J., who was then 23 months old, was admitted to a hospital with a lacerated liver, which was potentially life-threatening, and various other injuries. The petitioner commenced a child protective proceeding against Erica’s mother, Erica’s father, and the father’s girlfriend, Aisha B., alleging that they had abused Erica. The petitioner commenced a separate proceeding against the mother, alleging that she had, by the same conduct, derivatively neglected her child Nadia H. The Family Court conducted a fact-finding hearing, at which the evidence indicated that on the weekend immediately preceding her hospitalization, Erica had visitation with the father, and she spent some of the weekend with the father and Aisha B., and the remainder of the weekend with the mother. Family Court determined that the mother, the father, and Aisha B. were responsible for the care of Erica during the weekend preceding her hospitalization, and, while it could not be determined which of them had inflicted Erica’s injuries, they could all be held responsible for the abuse, on a theory of res ipsa loquitur. The court found, inter alia, that the mother abused Erica, and derivatively neglected Nadia H. The Appellate Division affirmed. It noted that under Family Court Act § 1046(a)(ii), a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child that would ordinarily not occur absent an act or omission of the respondents, and (2) that the respondents were the caretakers of the child at the time the injury occurred. Once the petitioner has established by a preponderance of the evidence that child abuse has occurred, Family Court Act § 1046(a)(ii) “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” (Matter of Philip M., 82 N.Y.2d 238). The statute “permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred, and, in such cases, “the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together”. Once the petitioner establishes a prima facie case, “the burden of going forward shifts to respondents to rebut the evidence of parental culpability. Petitioner established a prima facie case of child abuse against the mother through medical records and expert medical testimony showing that the injuries sustained by Erica would not ordinarily occur absent an act or omission of the caregiver, and that the mother was a caretaker of Erica during the relevant time period. In response to this showing, the mother did not demonstrate that Erica’s injuries occurred when she was in the exclusive care of the father, or otherwise rebut the presumption of culpability. Accordingly, the Family Court properly determined that the petitioner established, by a preponderance of the evidence, that the mother abused Erica. Moreover, the court properly found that the mother’s derivative neglect of Nadia H. was established by a preponderance of the evidence.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">A person is a proper respondent in an article 10 proceeding as an other person legally responsible for the child’s care if that person acts as the functional equivalent of a parent in a familial or household setting. The determination is a discretionary, fact-intensive inquiry. </span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Serenity R, --- N.Y.S.3d ----, 215 A.D.3d 854, 2023 WL 2994938, 2023 N.Y. Slip Op. 02009 (2d Dept.,2023) the Appellate Division found that Truman C. abused the child Serenity R. and derivatively neglected the child Lorenzo C. The Appellate Division affirmed. It held that Family Court correctly found that he was a person legally responsible for Serenity R. Child protective proceedings encompass only abuse or neglect by a person who is a parent or other person legally responsible for the child’s care. A person legally responsible is defined as the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time. (Family Ct Act § 1012[g]). A person is a proper respondent in [a Family Court Act] article 10 proceeding as an other person legally responsible for the child’s care if that person acts as the functional equivalent of a parent in a familial or household setting (Matter of Yolanda D., 88 N.Y.2d 790). “Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent[s] are some of the variables which should be considered and weighed by a court”. “The definition expressly encompasses paramours who regularly participate in the family setting and who therefore share to some degree in the supervisory responsibility for the children”. Here, Serenity R.’s credible testimony established that the appellant, who was the boyfriend of Serenity R.’s mother, lived in the same home as her for two months prior to the sexual abuse, and would assist in watching her and cooking for her. Moreover, the evidence adduced at the fact-finding hearing was sufficient to prove, by a preponderance of the evidence, that the appellant sexually abused Serenity R. Further, the Family Court correctly concluded that the appellant derivatively neglected Lorenzo C. “Where a person’s conduct toward one child demonstrates a fundamental defect in the parent’s understanding of the duties of parenthood, or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in his or her care, an adjudication of derivative neglect with respect to the other children is warranted.” “In determining whether a child born after the underlying acts of abuse should be adjudicated derivatively neglected, the ‘determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists. The court correctly determined that, given the seriousness of his conduct in sexually abusing Serenity R., the risk to Lorenzo C. remained despite the fact that approximately two years had passed between the sexual abuse of Serenity R. and the birth of Lorenzo C.</span></p><p><br /></p><p><span style="font-family: arial;">Appellate Divison, Third Department</span></p><p><span style="font-family: arial;">A parent's lack of respect for a transgender child’s gender identity, chosen name, and preferred pronouns are factors in a custody determination</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Laura E v John D., --- N.Y.S.3d ----, 2023 WL 3355656, 2023 N.Y. Slip Op. 02568 (3d Dept.,2023) the Appellate Division, inter alia, affirmed an order which modified a consent order and granted the mother sole legal custody and primary physical custody of the child. In focusing on whether Family Court’s custody and parenting time determinations served the bests interests of the child the Court observed that the subject child identified as male and used the gender-neutral pronouns they/them. The child’s gender identity, and their chosen name and preferred pronouns, were also a point of major contention between the parties. The father explained that addressing the child by their chosen name or preferred pronouns was contrary to his Catholic faith. Although the father initially agreed to engage in family counseling with the child and the mother, the counselor testified that this was short-lived. During the third family counseling session, the father took issue with the counselor addressing the child with the child’s preferred pronouns (they/them), which led to an argument between the father and the child. The father then stormed out of the family session. The counselor continued to treat the child and revealed that the child often reported distress at the father’s refusal to respect the child’s chosen name and preferred pronouns. The counselor further testified regarding a study that showed that suicide rates among transgender and gender nonbinary people are halved if the individual feels that their pronouns are respected in their daily lives.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">May 10, 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, First Department</span></p><p><span style="font-family: arial;">The parties’ unsuccessful investments into various business interests during the marriage are not subject to scrutiny for wasteful dissipation in the absence of any evidence that the defendant acted recklessly or in bad faith</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Parker v Parker, 2023 WL 3236134 (1st Dept.,2023) the Appellate Division affirmed a judgment which to the extent appealed from determined that SICM Management LLC, Far East Restaurant Partners/Bice Australia, Green Partners LLC, and KNIC Properties LP had no value as of date of commencement, thus making no distribution of these businesses, and credited plaintiff wife $2,440,618.03 representing 30% of the value of Next Jump LLC as of date of commencement and $818,693.20 representing 40% of the value of Maris–Cathare Wines as of date of commencement; declined to credit the wife for defendant husband’s alleged wasteful dissipation of marital assets; declined to award the wife any spousal maintenance; determined that the apartment located at 4 East 66th Street was marital property to be immediately sold, with the net proceeds subject to equal distribution; declined to award the wife counsel fees, and declined to impose sanctions on the wife, except that it modified the judgment to the extent of crediting the wife 50% of the value of Next Jump and Cathare, and otherwise affirmed, without costs.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division found that the marital share of Next Jump was valued based on a buyout offer near the date of commencement, which was declined by the parties, for $8,135,393.42, and the husband testified that the marital share of assets owned by Cathare were worth approximately $2 million. The remaining business interests were assigned zero value, and in the absence of any evidence to the contrary, there was no basis to reverse this finding.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division held that where both spouses equally contribute to a marriage of long duration, the division should be as equal as possible. The parties were married for 17 years, during which the plaintiff managed the parties’ households and acted as the children’s primary caretaker, and she held title with the defendant to Cathare and Next Jump, reflecting their intention to jointly own these investments fueled by marital funds. It found that the plaintiff should have been credited 50% of the value of these business interests.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division held that the court properly rejected the plaintiff’s wasteful dissipation claims. The parties’ unsuccessful investments into various business interests during the marriage are not subject to scrutiny in the absence of any evidence that the defendant acted recklessly or in bad faith.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division held that in declining to award maintenance, the court properly considered the factors set forth in Domestic Relations Law § 236(B)(6), including the considerable equitable distribution award at her disposal. The parties’ lavish marital lifestyle came to an end in 2012, years prior to the commencement of the divorce, when the defendant left his position at Deutsche Bank to embark on his own business endeavors.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division held that the court providently exercised its discretion in ordering that plaintiff pay her own counsel fees in view her distributive award, and the unreasonable positions she adopted during the litigation, which delayed the proceedings and incurred additional counsel fees</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;">The court properly considered the financial assistance the plaintiff received from his parents in deciding whether he was the monied spouse. He had the resources to pay far more than the defendant incurred in counsel fees, and he had a net worth that was exponentially greater than that of the defendant at the outset of the marriage</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Plotkin v Esposito-Plotkin, --- N.Y.S.3d ----, 2023 WL 3215307, 2023 N.Y. Slip Op. 02336(2d Dept.,2023) shortly before their marriage in 2011, the parties executed a prenuptial agreement, which stated that the defendant had a net worth of approximately $350,000 while the plaintiff’s net worth was approximately $11.5 million, primarily based upon his beneficial interests in two irrevocable trusts valued at $11 million. The defendant stopped working in 2013 after the birth of the parties’ first child. In November 2018, the plaintiff moved out of the marital home. In December 2018, the plaintiff commenced the action for a divorce. In February 2019, the parties executed a pendente lite stipulation in which the plaintiff agreed to pay for the vast majority of the defendant’s and the children’s living expenses, in addition to $20,000 in counsel fees to the defendant’s attorneys. In October 2019, the defendant moved, inter alia, for an award of interim counsel fees of $75,000. At that point, the defendant had incurred approximately $50,000 in counsel fees and costs, while the plaintiff had incurred more than $100,000 in counsel fees. Supreme Court directed the plaintiff to pay interim counsel fees to the defendant’s attorneys of $50,000. The plaintiff failed to pay the fee award. In June 2020, the defendant moved, inter alia, to hold the plaintiff in criminal contempt. The plaintiff opposed, arguing that he was financially unable to pay the award. Supreme Court held the plaintiff in civil contempt without a hearing for his failure to pay the interim counsel fees. The Appellate Division affirmed. It held that Supreme Court properly determined that the plaintiff was the monied spouse. Since the defendant stopped working after the birth of the parties’ first child the plaintiff supported the family, either through his employment with his father’s business or through direct assistance from his parents. The court properly considered the financial assistance the plaintiff received from his parents in deciding whether he was the monied spouse. The plaintiff had the resources to pay far more than the defendant incurred in counsel fees, and he had a net worth that was exponentially greater than that of the defendant at the outset of the marriage. The Appellate Division held that the defendant did not clearly violate 22 NYCRR 202.16(k)(2) by submitting an eight-month-old statement of net worth with her motion, for interim counsel fees, nor did the Supreme Court improvidently exercise its discretion in accepting it. The plaintiff’s contention that the defendant’s statement of net worth failed to accurately describe her financial circumstances because it did not include benefits she received under the parties’ pendente lite stipulation was without merit. The defendant included the pendente lite stipulation with her moving papers and, as a result, the information contained in it was before the court. Moreover, the defendant submitted “appropriate evidence” demonstrating substantial compliance with 22 NYCRR 1400.2 and 1400.3, which, among other things, require attorneys in domestic relations matters “to provide [their] client[s] with written, itemized bills at least every 60 days”.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">Regarding the Supreme Court’s civil contempt finding, in the absence of a material factual issue, the plaintiff was not entitled to an evidentiary hearing before being held in civil contempt.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Divison, Third Department</span></p><p><span style="font-family: arial;">One parent may be held accountable for the neglectful acts of the other if he or she knew or should reasonably have known that the child was in danger</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Nina W, --- N.Y.S.3d ----, 2023 WL 3235311, 2023 N.Y. Slip Op. 02355 (3d Dept.,2023) Respondent was the mother of a child (born in 2003). The child lived with the mother “on and off” for the first half of her life, otherwise residing with a maternal aunt. Following one extended absence on the mother’s part, the father was awarded physical custody of the child, with the mother retaining joint legal custody. In July 2020, petitioner commenced this neglect proceeding against the mother, alleging, as relevant here, that she placed the child at imminent risk of harm by allowing the child to remain in the father’s home. After a fact-finding hearing, Family Court determined that the child’s condition was impaired or in imminent danger of being impaired and that the harm to the child arose from the mother’s abdication of her parental responsibilities and failure to exercise a minimum degree of care in providing the child with proper supervision, and the court accordingly adjudged the child neglected. The Appellate Division affirmed. It pointed out that, one parent may be held accountable for the neglectful acts of the other if he or she knew or should reasonably have known that the child was in danger. The mother did not dispute that the child suffered physical, mental or emotional impairment while living in the father’s home, nor did she deny her contemporaneous knowledge of the child’s impairment. Rather, she asserted that she could not neglect the child while the child was out of her physical custody. The Appellate Division held that parents may not avoid their responsibilities to their children merely because the children are not in their custody. One of the allegations of neglect was based on events that occurred the same year the petition was filed: when approached by a caseworker to see whether the mother would be willing to allow the child to temporarily reside with her, the mother declined, despite knowing that the child’s residence in the father’s home was exposing her to the father’s drug and alcohol abuse. The mother also declined to otherwise plan for the child, preferring that she go to a group home or adolescent facility. By failing to plan for her child and allowing her to remain in the father’s home, the mother did not act as a reasonable and prudent parent, and this failure exposed the child to the imminent threat of further impairment. “The fact that the child had disciplinary problems and [the mother] had initially sought assistance does not foreclose a finding of neglect where the parent thereafter refuses to act reasonably or to cooperate in efforts at addressing the child’s problems.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Divison, Fourth Department</span></p><p><br /></p><p><span style="font-family: arial;">Screenshots of text messages between the mother and two of the children were admissible where the identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages ”as well as grandmother’s testimony that she observed one of the children using his phone at the times the text messages were sent.</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Thompson v Thompson, --- N.Y.S.3d ----, 2023 WL 3160145, 2023 N.Y. Slip Op. 02202 (4th Dept., 2023) the Appellate Division rejected the mother’s contention that Family Court erred in admitting into evidence two exhibits containing screenshots of text messages between the mother and two of the children. The identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages ”as well as by the maternal grandmother’s testimony that she observed one of the children using his phone at the times the text messages were sent. Further, there was no evidence ... that any omitted material was necessary for explanatory purposes, and the mother was free to introduce other text messages between herself and the child that would have resolved any purported distortion caused by admitting in evidence only portions of the text conversation.</span></p><p><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division rejected the mother’s contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child must zealously advocate the child’s position. However, an attorney for the child is entitled to advocate a position that is contrary to a child’s wishes when the attorney is “convinced ... that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child (22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child’s wishes, the attorney is still required to inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position. Here, the children’s wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record established that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Supreme Court</span></p><p><span style="font-family: arial;">In awarding possession of a companion animal in a divorce action the best interest of the animal, a dog, warranted a time-sharing schedule</span></p><p><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Conte v Conte, 2023 WL 3239943 (Table), 2023 N.Y. Slip Op. 50409(U) (Sup Ct, 2023) the parties to this divorce action had been living apart since July 17, 2022. On April 18, 2023 a hearing was held to determine custody of the parties’ dog, “King”. The Court observed that pursuant to DRL § 236(B)(5)(15), in awarding possession of a companion animal in a divorce action the court shall consider the best interest of such animal. In determining the best interests of a companion animal under DRL § 236(B)(5)(15), the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive.” L.B. v. C.C.B. 77 Misc 3d 429 [Kings County Supreme Court, 2022]. The Court found that both parties had been involved in King’s life, although the wife had been more involved in his medical care. Both parties were available and willing to care for King. The court determined that a time-sharing schedule was in King’s best interest. </span></p><p><br /></p><p><span style="font-family: arial;">May 1. 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, First Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Executive Order 8.202.8 tolled the statute of limitations until that order and subsequent Executive Orders extending the tolling period were rescinded. Since the period of the toll must be excluded from the calculation of the filing deadline, the juvenile delinquency petitions were timely filed on July 2, 2021</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Isaiah H., --- N.Y.S.3d ----, 2023 WL 2603170, 2023 N.Y. Slip Op. 01587 (1st Dept.,2023) the Appellate Division, reversed an order which granted the respondent’s motion to dismiss the petitions charging him with acts, which, if committed by an adult, would constitute crimes, and the matter was remanded to Family Court for further proceedings. It held that Family Court erred in dismissing the petitions as untimely filed. By Executive Order No. 8.202.8, issued on March 20, 2020, due to the Covid–19 pandemic, the “time limit[s] for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state” were “tolled” (9 NYCRR 8.202.8; see Matter of Oustatcher v. Clark, 198 A.D.3d 420, 421, 155 N.Y.S.3d 12 [1st Dept. 2021]). “A toll suspends the running of the applicable period of limitation for a finite time period, and the period of the toll is excluded from the calculation of the relevant time period. However, a suspension “simply delays expiration of the time period until the end date of the suspension”. By its plain terms, Executive Order 8.202.8 tolled the statute of limitations, until that order and subsequent Executive Orders extending the tolling period were rescinded by Executive Order 8.210, issued on June 24, 2021, and effective the next day (9 NYCRR 8.210). Since the period of the toll must be excluded from the calculation of the filing deadline, the juvenile delinquency petitions were timely filed on July 2, 2021. Respondent allegedly committed his first unlawful act on December 21, 2019. Normally, the filing deadline for the petitions would have been the respondent’s 18th birthday – June 7, 2021, which was 534 days after he allegedly committed the first act. When the first executive order took effect on March 20, 2020, there were 444 days remaining before the respondent’s 18th birthday. By adding 444 days to June 24, 2021, when the executive order’s tolling provisions were terminated, the Agency’s deadline for filing the petitions was August 25, 2022. Here, the Agency refiled and served the second set of petitions on July 2, 2021, only eight days after the executive orders were rescinded. The order rescinding the prior Executive Orders meant that the statute of limitations would start running again, “picking up where it left off” (Artis v. District of Columbia, ––– U.S. ––––, 138 S. Ct. 594, 601, 199 L.Ed.2d 473 [2018]).</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where the plaintiff advised the defendant in an email that he would be “willing to cover the entire cost of [the child’s] education” if the child attended a particular school Supreme Court providently exercised its discretion in directing the plaintiff to pay 100% of the child’s tuition</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Abayomi v Guevara, --- N.Y.S.3d ----, 2023 WL 2904377, 2023 N.Y. Slip Op. 01880 (2d Dept.,2023) the plaintiff moved, inter alia, to modify the judgment of divorce to permit him to pay a portion of his child support obligation directly to the private school in which the child had been enrolled to cover his share of the tuition payment. There are no provisions in the order of support pertaining specifically to educational expenses or apportioning responsibility for that add-on expense between the parties. Supreme Court, denied his motion and, sua sponte, directed the plaintiff to pay 100% of the child’s tuition. The Appellate Division affirmed and rejected the plaintiffs argument that the Supreme Court improvidently exercised its discretion by requiring him to pay 100% of the child’s tuition. The evidence demonstrated that the plaintiff decided that the child should be enrolled in a particular private school, he commenced the application procedures for that school, and when he sought the defendant’s cooperation in the process, he advised the defendant in an email that he would be “willing to cover the entire cost of [the child’s] education” if the child attended that school. Further, the plaintiff did not contend that he was unable to support himself and pay 100% of the child’s tuition. Under the circumstances, it held that the Supreme Court providently exercised its discretion in directing the plaintiff to pay 100% of the child’s tuition (see Sinnott v. Sinnott, 194 A.D.3d at 877, 149 N.Y.S.3d 441; Matter of Weissbach v. Weissbach, 169 A.D.3d at 704, 95 N.Y.S.3d 85).</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The presumption that parental access is in the best interests of the child, even when that parent is incarcerated, was overcome by a showing, that parental access would be harmful to the child’s welfare or not in the child’s best interests </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Romero-Flores v Hernandez, --- N.Y.S.3d ----, 2023 WL 2590751, 2023 N.Y. Slip Op. 01516(2d Dept.,2023) the father and the mother were the parents of one child. In January 2019, the father, who had been incarcerated since August 2011, filed a petition seeking parental access to the child. At the close of the father’s case at a hearing on his petition, the Family Court granted the motion of the attorney for the child to dismiss the petition. The Appellate Division affirmed. It held that parental access with a noncustodial parent is presumed to be in the best interests of the child, even when that parent is incarcerated. However, the presumption may be overcome upon a showing, by a preponderance of the evidence, that parental access would be “harmful to the child’s welfare or not in the child’s best interests.” The evidence demonstrated that the father had been incarcerated since 2011 for attempted murder and arson. The father had set fire to the mother’s vehicle and that fire spread to the mother’s family’s house. The fire caused the death of the child’s uncle and endangered the child as well as the mother, who the father knew were inside the house at the time. Additionally, the child was eight months of age at the time the father was incarcerated, and the father has had no contact with the child since that time. At the time of the hearing, the child was 11 years old and would be more than 18 years of age at the time of the father’s earliest release date. Under these circumstances, the court properly granted the motion</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where the plaintiff demonstrated that three years had passed since the judgment of divorce was entered, Supreme Court erred in summarily denying the plaintiff’s motion to upwardly modify the defendant’s basic child support obligation</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Cooper v Oliver --- N.Y.S.3d ----, 2023 WL 2994847, 2023 N.Y. Slip Op. 01981(2d Dept.,2023) the plaintiff moved, to modify the judgment of divorce to, among other things, upwardly modify the defendant’s basic child support obligation. Supreme Court, denied the motion. The Appellate Division held that as relevant here, a court may modify an award of child support where three years have passed since the award was entered, last modified, or adjusted (see Domestic Relations Law § 236[B][9][b][2][ii][A]). In support of the plaintiff’s motion, the plaintiff demonstrated that three years had passed since the judgment of divorce was entered. Under these circumstances, regardless of whether the plaintiff demonstrated a substantial change in circumstances, the Supreme Court erred in summarily denying that branch of the plaintiff’s motion which was to modify the judgment of divorce to upwardly modify the defendant’s basic child support obligation.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Consent to adoption is not required of a parent who evinces an intent to forego his or her parental rights and obligations by his or her failure for a period of six months to contact or communicate with the child or the person having legal custody of the child although able to do so</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Ryan --- N.Y.S.3d ----, 2023 WL 2994924, 2023 N.Y. Slip Op. 02010 (2d Dept.,2023) the child was born in March 2017. The child’s mother was killed in November 2018. In April 2021, the father was convicted of murder in the second degree for the killing of the mother. In June 2020, the petitioners filed a petition to adopt the child, alleging, inter alia, that pursuant to Domestic Relations Law § 111(2)(a), the father’s consent to adoption was not required. After a hearing, Family Court determined that the father had abandoned the child and that the father’s consent to the adoption of the child, therefore, was not required. The Appellate Division affirmed. It held that the petitioners met their burden of establishing, by clear and convincing evidence, that the father abandoned the child, and that the father’s consent to the adoption therefore was not required. Under Domestic Relations Law § 111(2)(a), consent to adoption is not required of a parent who evinces an intent to forego his or her parental rights and obligations by his or her failure for a period of six months to contact or communicate with the child or the person having legal custody of the child although able to do so. Here, the evidence at the hearing established that the father had no contact with the child since 2018. The father’s incarceration did not absolve him of the responsibility to maintain contact with the child. In addition, the evidence established that between March 2019, when the petitioners obtained custody of the child, and March 2022, when the hearing occurred, the father did not send any letters or gifts to the child or provide any financial support.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Custody determinations should generally be made only after a full and plenary hearing and inquiry. A court opting to forgo a plenary hearing must take care to clearly articulate which factors were or were not material to its determination, and the evidence supporting its decision</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Baez-Delgadillo v Moya, --- N.Y.S.3d ----, 2023 WL 2994903 (Mem), 2023 N.Y. Slip Op. 01994 (2d Dept.,2023) the parties, who were never married to each other, were the parents of a child born in 2012. The child had been in the physical custody of the mother since his birth. In September 2019, the mother filed a petition for sole legal and physical custody of the child. On December 16, 2021, the Supreme Court awarded the mother temporary custody of the child, awarded the father supervised parental access and directed the father to enroll in therapy. On the record that day, the court directed the father to enroll in batterer’s intervention and alcohol treatment programs. The father failed to comply with the court’s directives. In an order dated March 2, 2022, the court, without a hearing, granted the mother’s petition for sole legal and physical custody and suspended the father’s parental access to the child based on his failure to attend alcohol treatment and therapy. The Appellate Division reversed, It held that custody determinations should generally be made only after a full and plenary hearing and inquiry” (see S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193). A court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision. Similarly, visitation determinations should generally be made after a full evidentiary hearing to ascertain the best interests of the child”. Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties' child. Moreover, the court failed to articulate the factors and evidence material to its determination The Supreme Court also erred in suspending the father’s parental access without determining the best interests of the child. Furthermore, the court improperly conditioned the father’s future parental access or reapplication for parental access rights upon his compliance with treatment The matter was remitted to the Supreme Court, to conduct a hearing and for new determinations.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where a willful violation of an order of support is found, the determination as to the appropriate sanction lies within the Family Court’s discretion</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In O’Keeffe, v O’Keeffe, --- N.Y.S.3d ----, 2023 WL 2994936, 2023 N.Y. Slip Op. 02006 (2d Dept.,2023) the Support Magistrate, inter alia, found that the father willfully failed to comply with his child support obligations and in an order of commitment the Family Court, in effect, confirmed so much of the order of disposition as found that the father willfully failed to comply with his child support obligations, and committed the father to the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount of $15,000. The Appellate Division rejected the father’s argument on appeal that the Family Court improperly issued an order of commitment since less drastic enforcement remedies were available, and that the purge amount set by the court was excessive. It held that where, as here, a willful violation of an order of support is found, the determination as to the appropriate sanction lies within the Family Court’s discretion. Under the circumstances of this case, the court did not improvidently exercise its discretion.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Divison, Fourth Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Mother neglected the children by, among other things, failing to provide a safe environment for them.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> In Matter of Cameron J.S., --- N.Y.S.3d ----, 2023 WL 2547887, 2023 N.Y. Slip Op. 01416 (4th Dept.,2023) the Appellate Division affirmed an order which adjudged that the mother neglected the children by, among other things, failing to provide a safe environment for them. (Family Ct Act § 1012 [f] [i] [B]). The evidence presented by the petitioner established that one of the mother’s adult children had previously sexually abused one of the subject children over the course of several years. That adult child was also mentally unstable, volatile, and violent, having physically fought with others in the home, punched holes in walls, and destroyed other property in the home. The evidence further established that the children witnessed those events and were, at times, the victims of those events. The police were repeatedly called to the residence to address issues involving the adult child, and his mere presence at the house left the subject children “uncomfortable” and “terrified.” Despite the petitioner’s requests that the mother adhere to a safety plan and ask the adult child to move from the residence, the evidence established that the adult child remained a constant presence in the home and that the mother refused to cooperate with the petitioner. It concluded that the evidence supported the determination that the mother failed to provide adequate supervision of the children. The mother’s actions in continuing to allow the adult child to reside in or visit the home placed the children “at substantial risk of harm.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">April 16, 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, First Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appeal was rendered moot by the entry of the judgment of divorce in the underlying matrimonial matter, which terminated the automatic orders for the purpose of enforcement</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In Bloom v Hilpert, --- N.Y.S.3d ----, 2023 WL 2875314 (Mem), 2023 N.Y. Slip Op. 01859 (1st Dept, 2023) the appeal from the order which denied defendant’s motion to direct plaintiff to reinstate family health insurance coverage pendente lite was dismissed as moot. The appeal was rendered moot by the entry of the judgment of divorce in the underlying matrimonial matter, which terminated the automatic orders for the purpose of enforcement and rendered the parties ineligible for joint health coverage</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The award maintenance award was not improper even though it exceeded the amount the defendant requested in her statement of proposed disposition. 22 NYCRR 202.16[h) which requires the submission of a statement of proposed disposition does not abrogate judicial statutory authority to determine the amount of maintenance</span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;">In Novick v Novick, --- N.Y.S.3d ----, 2023 WL 2669469, 2023 N.Y. Slip Op. 01684 (2d Dept.,2023) the parties were married in 1992, and had three emancipated children. The plaintiff commenced this action for divorce in January 2017. The plaintiff, who was 57 years old at the time of trial, was self-employed in a dental practice and was the primary wage earner during the parties’ 24–year marriage. The defendant was a homemaker and the primary caretaker of the parties’ children and was not employed outside the home during the majority of the duration of the parties’ marriage. The judgment of divorce, dated August 7, 2019, inter alia, (1) awarded the defendant maintenance of $12,000 per month for nine years, based on income imputed to the defendant of $40,000 per year and income imputed to the plaintiff of $375,000 per year, (2) awarded the defendant 33% of the fair market value of the plaintiff’s dental practice, (3) awarded the defendant pendente lite arrears of $29,245.76, (4) awarded the defendant counsel fees of $55,000, and (5) awarded the plaintiff one half of the defendant’s Morgan Stanley IRA account. The Appellate Division affirmed these awards.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division affirmed the maintenance award and held that the court providently exercised its discretion in imputing income of only $40,000 per year to the defendant. The evidence established that while the defendant had earned two master’s degrees during the marriage, she was only employed outside the home for a brief time during the 24–year marriage during which time her earnings were not substantial. The award was not improper even though it exceeded the amount the defendant requested in her statement of proposed disposition (see 22 NYCRR 202.16[h). The court rule which requires the submission of a statement of proposed disposition does not abrogate judicial statutory authority to determine the amount of maintenance (see generally N.Y. Const art VI, § 30; People v. Ramos, 85 N.Y.2d 678, 687–688, 628 N.Y.S.2d 27 ).</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held that the Supreme Court providently exercised its discretion in awarding the defendant 33% of the value of the plaintiff’s dental practice. The 33% share accounted for the defendant’s direct and indirect contributions, including that of primary caretaker of the parties’ three children. The court did not overvalue the plaintiff’s dental practice by applying a 35% capitalization rate. The court appointed a forensic expert, who explained that the capitalization rate for professional service companies is typically 33.33% and that he applied a slightly higher capitalization rate to account for the “slightly above-average risk” associated with the plaintiff’s dental practice, and the court providently exercised its discretion in crediting the expert. It held that Supreme Court did not engage in impermissible double counting by distributing to the defendant a share of the dental practice in addition to maintenance, as the plaintiff’s dental practice constituted a tangible, income-producing asset, rather than an intangible asset (see Keane v. Keane, 8 N.Y.3d 115, 828 N.Y.S.2d 283).</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>However, the Supreme Court improvidently exercised its discretion in failing to provide for the distribution of the funds in the T.D. Ameritrade account titled in the defendant’s name. The defendant failed to provide any evidence that the account was her separate property, and thus, it was subject to equitable distribution. It modified the judgment of divorce to equally divide the proceeds from that account between the parties. And, since Supreme Court failed to explain how it arrived at its determination that the plaintiff owed the defendant $29,245.67 for pendente lite arrears, it remitted the matter to the Supreme Court for a hearing on the issue.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">While the expressed wishes of the children to remain in Long Island with the father was not controlling, they were entitled to great weight, as the children were 12 and 13 years old, respectively, at the time of the hearing<span style="white-space: pre;"> </span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Morgan v Eckles, --- N.Y.S.3d ----, 2023 WL 2669284, 2023 N.Y. Slip Op. 01678 (2d Dept., 2023) the Appellate Division held that Family Court properly denied the mother’s petition to modify the custody provisions of the judgment of divorce to allow her to relocate with the children to Rhode Island, and granted the father’s petition, in effect, to modify the custody provisions of the judgment of divorce to award him sole residential custody of the children, with certain parental access to the mother. The Family Court’s determination was supported by a sound and substantial basis in the record. Moreover, while the expressed wishes of the children to remain in Long Island with the father was not controlling, they were entitled to great weight, as the children were 12 and 13 years old, respectively, at the time of the hearing (see Matter of Guerra v. Oakes, 160 A.D.3d 855, 857, 74 N.Y.S.3d 102).</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Where the matter has been submitted to the court, the court may not order an action discontinued except upon the stipulation of all parties appearing in the action</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Matter of Johnson v Lomax, --- N.Y.S.3d ----, 2023 WL 2669267 (Mem), 2023 N.Y. Slip Op. 01675(2d Dept.,2023) the petitioner commenced a family offense proceeding against the respondent, his sister. The Family Court issued a temporary order of protection, in favor of the petitioner and against the respondent. A hearing was held on April 16, 2021, and after the hearing, the court found that the petitioner established, by a preponderance of the evidence, that the respondent committed a family offense. Thereafter, in an order dated April 26, 2021, the court vacated the temporary order of protection and directed that the petition was withdrawn. The Appellate Division reinstated the petition. It held that where, as here, the matter has been submitted to the court, the court may not order an action discontinued except upon the stipulation of all parties appearing in the action (CPLR 3217[b]). In this case, there was no stipulation from the parties. Thus, the court erred in directing that the petition was withdrawn. The petition was reinstated, and the matter was remitted to the Family Court, for further proceedings consistent herewith.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Trial courts are without authority to vacate or modify orders of the Appellate Division</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Greco v Greco, --- N.Y.S.3d ----, 2023 WL 2669251 (Mem), 2023 N.Y. Slip Op. 01666 (2d Dept.,2023) the defendant moved in the Supreme Court, to modify a decision and order of the Appellate Division dated May 16, 2018, which affirmed, a prior order of the Supreme Court, dated April 20, 2016, which, inter alia, directed the plaintiff to pay certain counsel fees incurred by the defendant directly to the defendant’s counsel. Supreme Court denied the defendant’s motion on the ground that it lacks authority to modify an order of the Appellate Division. The Appellate Division held that Supreme Court properly denied the defendant’s motion which to modify the May 2018 order. Trial courts are without authority to vacate or modify orders of the Appellate Division. (Wiener v. Wiener, 10 A.D.3d 362, 363, 780 N.Y.S.2d 759).</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The court did not improvidently exercise its discretion in declining to impute as income the cost of the apartment that the defendant’s corporate employer maintained for him in Los Angeles where he was traveling there for business on a regular basis </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Lieberman-Massoni v Massoni, --- N.Y.S.3d ----, 2023 WL 2778332, 2023 N.Y. Slip Op. 01786 (2d Dept., 2022) the parties were married on August 31, 1997, and had two children. In February 2012, the plaintiff commenced the action for a divorce. A trial on the issues of equitable distribution, maintenance, and child support commenced in June 2014. Evidence at the first trial showed that the defendant, a high-ranking executive at his corporate employer, had received several grants of shares in the company, called B–Units, throughout his employment. The parties’ neutral appraiser testified that the value of the defendant’s B–Units as of the date of commencement of this action was $1,126,000, based upon a formula value set forth in the employer’s operating agreement and a discount for lack of marketability and control. The defendant testified that the business as of the time of trial was “horrendous.” However, approximately two weeks after the close of the first trial, the plaintiff discovered that the defendant’s corporate employer had sold one of its divisions which yielded the defendant a distribution of more than $8 million, based upon his B–Units. The plaintiff moved, inter alia, to reopen the trial. In an order dated December 4, 2014 Supreme Court granted the motion. The court also reopened discovery. The defendant appealed and the order was affirmed. The new trial was held in September 2017. The Supreme Court issued a decision after trial dated October 5, 2018 and a judgment of divorce dated December 21, 2018, was entered.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Divison held that the Supreme Court providently exercised its discretion in determining that the defendant’s B–Units that were granted before 2015 should be valued as of June 2017, immediately prior to the second trial, but that the plaintiff should be awarded only a percentage of the value of the B–Units as of that date, not a percentage of the B–Units themselves. Although the defendant was a high-ranking executive at his corporate employer, the court correctly determined that the value of these B–Units was not solely attributable to his actions. The court providently exercised its discretion, based on equitable and other considerations, to set the valuation date as of June 2017, rather than at the commencement of this action. Moreover, the Supreme Court did not improvidently exercise its discretion in awarding the plaintiff a percentage of the value of the defendant’s B–Units rather than a percentage of the B-units themselves as the record did not demonstrate that the distribution of the B–Units in-kind by transferring a percentage of the B–Units to her, by assigning a percentage of the interest to her, or by distributing a percentage of the defendant’s future distributions to her would be practicable and not unduly burdensome. The court’s determination that the plaintiff should not share in future distributions, nor benefit in any value increases of the B–Units subsequent to June 2017, was a provident exercise of discretion in light of the defendant’s promotion in 2015 which provided him a more active role in the operation of his corporate employer. Nor did the Supreme Court improvidently exercise its discretion in crediting the defendant’s expert valuation of the B–Units over the valuation of the plaintiff’s experts. Since the plaintiff’s experts failed to discount the valuation of the B–Units based upon a lack of marketability and control, the court did not improvidently exercise its discretion in adopting the valuation of the defendant’s expert. Further, the court did not improvidently exercise its discretion in determining that the formula value testified to by the defendant’s expert more closely approximated the fair market value of the defendant’s B–Units than the value based upon a potential sale of the company, where there was no evidence that the sale of the corporate employer was imminent.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>Considering the plaintiff’s substantial indirect contributions to the defendant’s business, including caring for the parties’ children and maintaining the parties’ residence in New York while the defendant worked for the majority of the time in Los Angeles, the Supreme Court providently exercised its discretion in awarding the plaintiff 35% of the value of the defendant’s B–Units as of the date of commencement of the second trial, as well as 35% of the defendant’s distribution from the 2014 sale of one of the divisions of the defendant’s corporate employer . The Supreme Court also providently exercised its discretion in determining that certain other B–Units that the defendant was granted in 2015 were his separate property. Bonus payments, though paid after commencement of a matrimonial action, may be viewed as marital property where such payments are compensation for past performance and are not tied to future performance. However, where a bonus is an incentive for future services to be rendered after commencement of an action, the bonus is separate property. Here, the evidence showed that the B–Units granted to the defendant in 2015, three years after the commencement of this action, were an incentive for future performance, not compensation for work done during the marriage.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division found that the court did not improvidently exercise its discretion in declining to impute as income the cost of the apartment that the defendant’s corporate employer maintained for him in Los Angeles. The defendant testified at the second trial that he was again traveling there for business on a regular basis </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>Although the defendant paid for all of the parties’ household expenses out of a joint checking account, it was undisputed that the defendant funded the account with post-commencement earnings. The plaintiff’s spending during the pendency of the action, which far exceeded the parties’ agreed-to “pre-commencement standard of living,” had nearly depleted all of the parties’ joint accounts. Accordingly, the Supreme Court did not improvidently exercise its discretion when it awarded the defendant a credit of 50% of the reduction in the mortgage principal made during the pendency of the action.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held that Supreme Court providently exercised its discretion in directing the defendant to pay 70% of the plaintiff’s reasonable and necessary attorney’s fees and expert fees (see e.g. Weiss v. Nelson, 196 A.D.3d 722, 726, 152 N.Y.S.3d 143).</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">No appeal lies from an order denying reargument of a decision</span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Lieberman-Massoni v Massoni, 2023 WL 2778342 (2d Dept.,2023) the Appellate Division held that no appeal lies from an order denying reargument of a decision, or from an order made upon reargument of a decision.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The competence of an expert in a particular subject may derive from long observation and real world experience and is not dependent upon formal training or attainment of an academic degree in the subject</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Lieberman-Massoni v Massoni, --- N.Y.S.3d ----, 2023 WL 2778339, 2023 N.Y. Slip Op. 01788(2d Dept.,2023) the Appellate Division affirmed an order which awarded the plaintiff $716,931.50 in attorney’s fees and $72,110 in expert fees. It held, inter alia, that it is within the Supreme Court’s sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of serious mistake, an error of law, or an improvident exercise of discretion. An expert is qualified to proffer an opinion if he or she possesses ‘the requisite skill, training, education, knowledge, or experience to render a reliable opinion. The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Supreme Court</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where the mother abducted the child to India, a country that is not a member to the Hague Convention, during the midst of an ongoing custody and divorce proceeding in New York, custody was awarded to the father and she was denied all relief.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In S.C. v. R.N.,--- N.Y.S.3d ----, 2023 WL 2801971, 2023 N.Y. Slip Op. 23092 (Sup Ct, 2023) the mother abducted the child to India, a country that is not a member to the Hague Convention,- during the midst of an ongoing custody and divorce proceeding in New York. The child was autistic and had special needs which were being met by various services provided to her in New York, but which had now been terminated. On November 10, 2022, Plaintiff fled with the child to India. On November 17, 2022, the Court issued an order directing Plaintiff to return the child to New York within 72 hours, and granting Defendant sole interim custody in the event Plaintiff failed to comply. On December 19, 2022, the Court granted the motion of Plaintiff’s prior counsel to be relieved. The Court also found Plaintiff in contempt of Court, issued a warrant for her arrest, deemed Defendant to have sole custody of the child, and granted Defendant exclusive use and occupancy of the marital apartment. .A warrant for Plaintiff’s arrest was issued on December 20, 2022, as was a separate order granting Defendant a final order of sole legal and physical custody of the child. An inquest was held on April 4, 2023. Defendant was granted sole legal and physical custody of the child. No parental access was awarded to Plaintiff until such time as she participates in proceedings in New York. Considering the various relevant factors, and especially in consideration of Plaintiff’s outrageous and egregious conduct in absconding with the child, a distributive award of marital assets 100% to Defendant and 0% to Plaintiff was equitable and just. The Court noted that in K.K. v. P.K.M., 52 Misc.3d 1220(A), 2016 WL 4441387 (Supreme Court, Westchester County 2016), the Court was faced with identical circumstances — the abduction of a child to India. The Court there found that the mother’s abduction of the child to India, refusal to return to the marital home, and disobedience of Court orders to return, shocked the conscience and should be considered in equitable distribution. Similar to this matter, the mother there also severely limited the father’s ability to communicate with the child. This Court adopted the reasoning of the K.K. Court and found it significant that not only had Plaintiff refused to return and disobeyed orders of the Court, but had the gall to e-mail the Court to indicate she considered this action withdrawn and had commenced proceedings in India. In light of her egregious marital fault, the Plaintiff forfeited her right to a share of the marital assets. The Court concluded that the Plaintiff was not entitled to maintenance and directed Defendant to pay a counsel fee award of $125,000.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">April 1, 2023 </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;">Improvident exercise of discretion in failing to conduct an in camera interview given the mother’s testimony that the child’s fear of visiting her in person was due to outside influence and the child was of such an age and maturity that his preferences were necessary to create a sufficient record</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Badal v Wilkinson, --- N.Y.S.3d ----, 213 A.D.3d 926, 2023 WL 2147225, 2023 N.Y. Slip Op. 00997 (2d Dept.,2023) the mother and the father had one child together, born in 2013. When the child was one year and three months old, the mother was arrested. She was detained and subsequently deported to Trinidad and Tobago. In 2019, the mother filed a petition seeking telephone, video, and in-person parental access in Trinidad and Tobago. After a hearing, the Family Court granted the mother’s petition for phone and video parental access with the child and, in effect, denied in-person parental access in Trinidad and Tobago. The Appellate Division reversed. It held that the decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court. Here, the court improvidently exercised its discretion in failing to conduct an in camera interview of the child, particularly given the mother’s testimony that the child’s fear of visiting her in person was due to outside influence. The child was of such an age and maturity that his preferences were necessary to create a sufficient record to determine his best interests. It remitted the matter to Family Court to conduct an evidentiary hearing and an in camera interview with the child, to develop a sufficient record, including the practical effect of the COVID–19 pandemic on the parties, vaccination status of the mother and child, the mother and maternal grandmother’s ability and willingness to coordinate travel arrangements, and factual details as to the mother’s criminal history, and for a new determination of the mother’s petition for in-person parental access.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Supreme Court erred in awarding the plaintiff counsel fees, as neither the plaintiff nor her attorney submitted any documentation or evidence that would have supported such an award.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Kao v Bonalle, --- N.Y.S.3d ----, 2023 WL 2590953, 2023 N.Y. Slip Op. 01543 (2d Dept., 2023) the parties were married on July 26, 2007, and had one child together, born in 2008. The plaintiff commenced this action for a divorce in July 2013. Supreme Court determined that the defendant had made certain excessive charges on his American Express credit card from January 2015 to May 2017. The court determined that the plaintiff was entitled to $138,870.84, which is equal to 50% of the excessive charges as calculated by the court. The court also determined that, in contemplation of this matrimonial action, the defendant transferred $150,000 into two 529 tuition plan accounts held on behalf of his two children from a previous marriage and that the plaintiff was entitled to $75,000, which was equal to 50% of the total funds transferred. The court also determined that the parties were to equally divide the net proceeds of the sale of a condominium located in Ohio, and determined that the defendant was to pay two-thirds of the plaintiff’s counsel fees, excluding the costs associated with the plaintiff’s appeal of a prior order in this action. The Appellate Division held, inter alia, that (1) Supreme Court providently exercised its discretion in awarding the plaintiff 50% of the excessive charges made by the defendant on his American Express card during the subject post-commencement period of time but recalculated the amount of the award due to errors in calculation; (2) Supreme Court also properly awarded each party 50% of the net proceeds of the sale of the Ohio condominium; and (3) the Supreme Court erred in awarding the plaintiff counsel fees, as neither the plaintiff nor her attorney submitted any documentation or evidence that would have supported such an award. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case. A party seeking to impose such a restraint must demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Walsh v Russell, --- N.Y.S.3d ----, 2023 WL 2590848, 2023 N.Y. Slip Op. 01522(2d Dept., 2023) the mother commenced a proceeding seeking sole legal and physical custody of the child and subsequently commenced a family offense proceeding against the father. In October 2021, the attorney for the child (AFC) moved to prohibit the father from posting, uploading blogs, and displaying the likeness of the child regarding the proceedings, and from disparaging the child’s relatives in any and all public or social media forums, and to direct the father to erase, deactivate, and delete all existing postings, blogs, and likenesses of the child. In an affirmation, the AFC asserted that the father had “embarked on a social media/public campaign” with respect to the instant proceedings, and that the father had posted the child’s image, name, and allegations regarding the mother and the mother’s family members in various public forums. Family Court, inter alia, granted the AFC’s motion upon the father’s default. In January 2022, the Family Court held a hearing on the mother’s petitions. Although the father failed to appear at the hearing, the father’s attorney participated in the hearing by making objections and cross-examining the mother. In an order dated February 2, 2022, the Family Court, in effect, granted the mother’s custody petition and awarded her sole legal and physical custody of the child. The order, inter alia, prohibited the father from “posting, uploading blogs, and displaying the likeness of the child ... regarding these proceedings and disparaging the child’s relatives in any and all public forums and/or social media platforms,” and directed the father to erase, deactivate, and delete “any existing blogs and likenesses.” The Appellate Division held that the order appealed from was not entered upon the father’s default. Although the father failed to appear in person at the hearing, his counsel appeared on his behalf and participated in the hearing. It then observed that a prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression. A party seeking to impose such a restraint bears a heavy burden of demonstrating justification for its imposition. Such party must demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case (Karantinidis v. Karantinidis, 186 A.D.3d at 1503, 131 N.Y.S.3d 363). It found that the that portion of the order which directed the father to erase, deactivate, and delete “any existing blogs and likenesses” was “not tailored as precisely as possible to the exact needs of the case”. This restriction required the father to delete “any existing blogs and likenesses,” regardless of whether the blogs or likenesses relate to the child, the mother, the mother’s family, or the instant proceedings. It rejected the father’s contention that the order’s remaining restrictions on his ability to post blogs, display the likeness of the child, and disparage the child’s relatives, were constitutionally impermissible. The prior restraint was narrowly tailored to the exact needs of the case (see Kassenoff v. Kassenoff, 213 A.D.3d 822, 2023 N.Y. Slip Op. 00850, 183 N.Y.S.3d 533 [2d Dept.]).</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;">Unlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to an award of interim counsel fees</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Chiarello v Chiarello, --- N.Y.S.3d ----, 2023 WL 2590863, 2023 N.Y. Slip Op. 01498 (2d Dept.,2023) in 2016, the plaintiff commenced this action for a divorce and in September 2018, the defendant moved for interim counsel fees of $25,000. On December 20, 2018, the Supreme Court directed the plaintiff to pay interim counsel fees of $20,000. The Appellate Division affirmed. It observed that the purpose of an award of interim counsel fees is to ensure that the less monied spouse will be able to litigate the action on equal footing with the monied spouse. Unlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to an award of interim counsel fees. Under the circumstances here, including the disparity of income between the parties, the plaintiff’s litigation tactics, and the evidence showing that the defendant lacked the resources necessary to continue litigating the action, the Supreme Court providently exercised its discretion in granting the defendant’s motion</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The length of time after the end of the relationship and before the filing of the family offense petition during which the petitioner refrained from having contact with the respondent as a result of events giving rise to the commencement of the proceeding does not deprive the court of subject matter jurisdiction under Family Court Act § 812(1)(e).</span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Eno v Illovsky, --- N.Y.S.3d ----, 2023 WL 2590808, 2023 N.Y. Slip Op. 01506 (2d Dept.,2023) petitioner was married to Lawrence Eno, who was the brother of the respondent. In December 2020, Lawrence Eno died. In February 2022, the petitioner commenced this family offense proceeding. Supreme Court issued an order granting the respondents motion to dismiss. The Appellate Division reversed and reinstated the petition. It found that Family Court correctly determined that, after Lawrence Eno’s death, the petitioner and the respondent no longer had a relationship of affinity pursuant to Family Court Act § 812(1)(a). However, the petitioner demonstrated that the parties had been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), so as to confer subject matter jurisdiction upon the court. The petitioner demonstrated that the parties had known each other for more than 30 years, that they had a close relationship as sisters-in-law for most of this period, during which they lived within one mile of one another, frequently had dinner together, engaged in social activities in each other’s homes, attended most holiday celebrations together, supported each other during times of devastating family illnesses, and assisted each other with their respective children. That relationship need not have ended at a time relatively recent to the filing of the petition. Thus, the length of time before the filing of the petition during which the petitioner refrained from having contact with the respondent as a result of events giving rise to the commencement of this proceeding did not deprive the court of subject matter jurisdiction under Family Court Act § 812(1)(e).</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where the parties' stipulation modifying the judgment of divorce was signed, notarized and filed with the County Clerk, Family Court lacked jurisdiction to enforce it because the parties failed to obtain a court order incorporating its terms. Family Court may only enforce or modify child support provisions contained in a valid court order or judgment.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">In Barra v Barra, --- N.Y.S.3d ----, 2023 WL 2602640, 2023 N.Y. Slip Op. 01557 (3d Dept., 2023) Petitioner ( mother) and respondent ( father) were married in 1986, and they had six children. The parties entered into a separation and settlement agreement in 2011, which was incorporated but not merged into a 2015 judgment of divorce. Pursuant to the terms of the separation agreement, the parties agreed that any modifications to the terms of the separation agreement had to take place “in writing duly subscribed and acknowledged with the same formality” as the separation agreement.” In June 2018, through a written stipulation (hereinafter the 2018 stipulation), the parties agreed that the child support section of the separation agreement “shall be stricken and replaced with” the 2018 stipulation. On February 1, 2021, the mother filed a petition seeking to enforce the child support provisions of the judgment of divorce. The mother alleged that the father owed child support arrears pursuant to the separation agreement and judgment of divorce and that he failed to pay his share of the children’s uncovered medical expenses. The matter proceeded to a fact-finding hearing. Following the mother’s proof, the Support Magistrate found that, pursuant to the 2018 stipulation, the father had complied with his child support obligations, and that the mother failed to present a prima facie case establishing a violation of any of the pertinent terms. The Support Magistrate dismissed the mother’s petition. The Appellate Division, inter alia, agreed with the mother’s contention that Family Court erred in considering the 2018 stipulation. Family Court is a court of limited jurisdiction and may only exert the powers granted to it by the State Constitution or by statute. Family Court may only enforce or modify child support provisions contained in a valid court order or judgment. Although the 2018 stipulation was signed, notarized, and then filed in the office of the Albany County Clerk, the parties failed to obtain a court order incorporating its terms. Accordingly, Family Court lacked subject matter jurisdiction to consider the 2018 stipulation to determine whether the father had failed to comply with his child support obligations. The proper inquiry was whether the father had complied with his child support obligations pursuant to a lawful order of support (see Family Ct Act § 453) – in this case, the judgment of divorce.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Fourth Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">A parent who has been prohibited from direct contact with the child continues to have an obligation to maintain contact with the person having legal custody of the child</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In Matter of Maria R., --- N.Y.S.3d ----, 2023 WL 2549146 (Mem), 2023 N.Y. Slip Op. 01453 (4th Dept., 2022) the Appellate Division affirmed an order which terminated the parental rights of respondent with respect to the subject child on the ground of abandonment. It held that a “parent who has been prohibited from direct contact with the child, in the child’s best interest[s], continues to have an obligation to maintain contact with the person having legal custody of the child” (Matter of Lucas B., 60 A.D.3d 1352, 1352, 876 N.Y.S.2d 255 [4th Dept. 2009)]). Petitioner had legal custody of the child, and there was no evidence that the father made any effort to maintain contact with petitioner. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">March 16, 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Recent Legislation</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Laws of 2023, Ch 23 §2 enacted on March 3, 2023 amended newly enacted Domestic Relations Law 240 subdivision 1 (a-3) of to add subdivision 5. Domestic Relations Law 240 subdivision 1 (a-3) is now effective December 23, 2023 and now reads as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> (a-3) Court ordered forensic evaluations involving child custody and</span></p><p><span style="font-family: arial;"> visitation. (1) The court may appoint a forensic evaluator on behalf of</span></p><p><span style="font-family: arial;"> the court to evaluate and investigate the parties and a child or</span></p><p><span style="font-family: arial;"> children in a proceeding involving child custody and visitation provided</span></p><p><span style="font-family: arial;"> that the child custody forensic evaluator is a psychologist, social</span></p><p><span style="font-family: arial;"> worker or psychiatrist who is licensed in the state of New York and has</span></p><p><span style="font-family: arial;"> received within the last two years, a certification of completion for</span></p><p><span style="font-family: arial;"> completing the training program pursuant to paragraph (o) of subdivision</span></p><p><span style="font-family: arial;"> three of section five hundred seventy-five of the executive law.</span></p><p><span style="font-family: arial;"> (2) Notwithstanding any provision of law to the contrary, no</span></p><p><span style="font-family: arial;"> individual shall be appointed by a court to conduct a forensic</span></p><p><span style="font-family: arial;"> evaluation in a proceeding involving child custody and visitation</span></p><p><span style="font-family: arial;"> pursuant to this paragraph unless such individual has received within</span></p><p><span style="font-family: arial;"> the last two years, a certification of completion for completing the</span></p><p><span style="font-family: arial;"> training program pursuant to paragraph (o) of subdivision three of</span></p><p><span style="font-family: arial;"> section five hundred seventy-five of the executive law.</span></p><p><span style="font-family: arial;"> (3) A psychologist, social worker or psychiatrist authorized to</span></p><p><span style="font-family: arial;"> conduct court ordered child custody forensic evaluations pursuant to</span></p><p><span style="font-family: arial;"> this section shall notify the court in which such individual requests to</span></p><p><span style="font-family: arial;"> be considered for such court ordered evaluations. Any psychologist,</span></p><p><span style="font-family: arial;"> social worker or psychiatrist who no longer meets the requirements of</span></p><p><span style="font-family: arial;"> this section in regards to completing within the last two years the</span></p><p><span style="font-family: arial;"> training program pursuant to paragraph (o) of subdivision three of</span></p><p><span style="font-family: arial;"> section five hundred seventy-five of the executive law shall be</span></p><p><span style="font-family: arial;"> obligated to inform such courts within seventy-two hours of</span></p><p><span style="font-family: arial;"> noncompliance so as to be removed from consideration for court ordered</span></p><p><span style="font-family: arial;"> evaluations.</span></p><p><span style="font-family: arial;"> (4) Upon appointment, the court shall require such child custody</span></p><p><span style="font-family: arial;"> forensic evaluator to show proof of certification for completing within</span></p><p><span style="font-family: arial;"> the last two years the training program pursuant to paragraph (o) of</span></p><p><span style="font-family: arial;"> subdivision three of section five hundred seventy-five of the executive</span></p><p><span style="font-family: arial;"> law.</span></p><p><span style="font-family: arial;"> (5) A court shall appoint a forensic evaluator who has completed the</span></p><p><span style="font-family: arial;"> training program pursuant to paragraph (o) of subdivision three of</span></p><p><span style="font-family: arial;"> section five hundred seventy-five of the executive law when the child is</span></p><p><span style="font-family: arial;"> living out-of-state and is farther than one hundred miles from the New</span></p><p><span style="font-family: arial;"> York state border; provided, however, that such forensic custody</span></p><p><span style="font-family: arial;"> evaluation may be conducted remotely utilizing videoconferencing</span></p><p><span style="font-family: arial;"> technology. The evaluator must take all steps reasonably available to</span></p><p><span style="font-family: arial;"> protect the confidentiality of the child's disclosures for any</span></p><p><span style="font-family: arial;"> evaluation conducted remotely utilizing videoconferencing technology, as</span></p><p><span style="font-family: arial;"> needed.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>Executive law (3)(o)was amended accordingly to replace the reference to the New York State Coalition Against Domestic Violence with the “organization designated by the federal department of health and human services to coordinate statewide improvements within local communities, social services systems, and programming regarding the prevention and intervention of domestic violence in New York state.. Laws of 2023, Ch 23, §2. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Laws of 2023 Chapter 68 enacted on March 3, 2023 and effective March 28, 2023 amended Chapter 798 of the Laws of 2022, which provides for one-day marriage officiants. It makes technical changes to the underlying chapter to effectuate the intent of the law to authorize town and city clerks to issue one day marriage officiant licenses pursuant to new Domestic Relations law § 11-d. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Technical changes were made to Domestic Relations law § 11 Subdivisions 1, 2, 3-a and 3-b to include references to one-day marriage officiants in section 11 of the Domestic Relations law.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations law § 11 Subdivisions 1, 2, 3-a and 3-b were amended to read as follows:</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> 1. A clergyman or minister of any religion, or by the senior leader,</span></p><p><span style="font-family: arial;"> or any of the other leaders, of The Society for Ethical Culture in the</span></p><p><span style="font-family: arial;"> city of New York, having its principal office in the borough of Manhat-</span></p><p><span style="font-family: arial;"> tan, or by the leader of The Brooklyn Society for Ethical Culture,</span></p><p><span style="font-family: arial;"> having its principal office in the borough of Brooklyn of the city of</span></p><p><span style="font-family: arial;"> New York, or of the Westchester Ethical Society, having its principal</span></p><p><span style="font-family: arial;"> office in Westchester county, or of the Ethical Culture Society of Long</span></p><p><span style="font-family: arial;"> Island, having its principal office in Nassau county, or of the River-</span></p><p><span style="font-family: arial;"> dale-Yonkers Ethical Society having its principal office in Bronx coun-</span></p><p><span style="font-family: arial;"> ty, or by the leader of any other Ethical Culture Society affiliated</span></p><p><span style="font-family: arial;"> with the American Ethical Union; provided that no clergyman or minister</span></p><p><span style="font-family: arial;"> as defined in section two of the religious corporations law, or Society</span></p><p><span style="font-family: arial;"> for Ethical Culture leader shall be required to solemnize any marriage</span></p><p><span style="font-family: arial;"> when acting in his or her capacity under this subdivision.</span></p><p><span style="font-family: arial;"> 1-a. A refusal by a clergyman or minister as defined in section two of</span></p><p><span style="font-family: arial;"> the religious corporations law, or Society for Ethical Culture leader to</span></p><p><span style="font-family: arial;"> solemnize any marriage under this subdivision shall not create a civil</span></p><p><span style="font-family: arial;"> claim or cause of action or result in any state or local government</span></p><p><span style="font-family: arial;"> action to penalize, withhold benefits or discriminate against such cler-</span></p><p><span style="font-family: arial;"> gyman or minister.</span></p><p><span style="font-family: arial;"> 2. The current or a former governor, a mayor of a village, a county</span></p><p><span style="font-family: arial;"> executive of a county, or a mayor, recorder, city magistrate, police</span></p><p><span style="font-family: arial;"> justice or police magistrate of a city, a former mayor or the city clerk</span></p><p><span style="font-family: arial;"> of a city of the first class of over one million inhabitants or any of</span></p><p><span style="font-family: arial;"> his or her deputies or not more than four regular clerks, designated by</span></p><p><span style="font-family: arial;"> him or her for such purpose as provided in section eleven-a of this</span></p><p><span style="font-family: arial;"> article, except that in cities which contain more than one hundred thou-</span></p><p><span style="font-family: arial;"> sand and less than one million inhabitants, a marriage shall be solem-</span></p><p><span style="font-family: arial;"> nized by the mayor, or police justice, and by no other officer of such</span></p><p><span style="font-family: arial;"> city, except as provided in subdivisions one and three of this section.</span></p><p><span style="font-family: arial;"> 3-a. A judge or peacemaker judge of any Indian tribal court, a chief,</span></p><p><span style="font-family: arial;"> a headman, or any member of any tribal council or other governing body </span></p><p><span style="font-family: arial;"> of any nation, tribe or band of Indians in this state duly designated by</span></p><p><span style="font-family: arial;"> such body for the purpose of officiating at marriages, or any other</span></p><p><span style="font-family: arial;"> persons duly designated by such body, in keeping with the culture and</span></p><p><span style="font-family: arial;"> traditions of any such nation, tribe or band of Indians in this state,</span></p><p><span style="font-family: arial;"> to officiate at marriages.</span></p><p><span style="font-family: arial;"> 3-b. A one-day marriage officiant, as designated by a town or city clerk pursuant to section eleven-d of this article; or, </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Domestic Relations law § 12 was amended to clarify the designation of one-day marriage officiants by a town or city clerk rather than the secretary of state.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Domestic Relations law § 12 was amended to read as follows:</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> § 12. Marriage, how solemnized. No particular form or ceremony is</span></p><p><span style="font-family: arial;"> required when a marriage is solemnized as herein provided by a clergy-</span></p><p><span style="font-family: arial;"> man or magistrate, or one-day marriage officiant as designated by </span></p><p><span style="font-family: arial;"> a town or city clerk pursuant to section eleven-d of this article, but the parties must solemnly declare in the presence of a</span></p><p><span style="font-family: arial;"> clergyman, magistrate, or such one-day marriage officiant and the</span></p><p><span style="font-family: arial;"> attending witness or witnesses that they take each other as spouses. In</span></p><p><span style="font-family: arial;"> every case, at least one witness beside the clergyman, magistrate, or</span></p><p><span style="font-family: arial;"> such one-day marriage officiant must be present at the ceremony.</span></p><p><span style="font-family: arial;"> The preceding provisions of this chapter, so far as they relate to the</span></p><p><span style="font-family: arial;"> manner of solemnizing marriages, shall not affect marriages among the</span></p><p><span style="font-family: arial;"> people called friends or quakers; nor marriages among the people of any</span></p><p><span style="font-family: arial;"> other denominations having as such any particular mode of solemnizing</span></p><p><span style="font-family: arial;"> marriages; but such marriages must be solemnized in the manner hereto-</span></p><p><span style="font-family: arial;"> fore used and practiced in their respective societies or denominations,</span></p><p><span style="font-family: arial;"> and marriages so solemnized shall be as valid as if this article had not</span></p><p><span style="font-family: arial;"> been enacted. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations law § 13 was amended to make conforming changes referencing the designation of town or city clerks to issue one-day marriage officiant licenses.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Domestic Relations law § 13 was amended to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> § 13. Marriage licenses. It shall be necessary for all persons</span></p><p><span style="font-family: arial;"> intended to be married in New York state to obtain a marriage license</span></p><p><span style="font-family: arial;"> from a town or city clerk in New York state and to deliver said license,</span></p><p><span style="font-family: arial;"> within sixty days, to the clergyman, magistrate, or one-day marriage</span></p><p><span style="font-family: arial;"> officiant as designated by a town or city clerk pursuant to section eleven-d of this article who is to officiate before the marriage</span></p><p><span style="font-family: arial;"> ceremony may be performed. In case of a marriage contracted pursuant to</span></p><p><span style="font-family: arial;"> subdivision four of section eleven of this chapter, such license shall</span></p><p><span style="font-family: arial;"> be delivered to the judge of the court of record before whom the</span></p><p><span style="font-family: arial;"> acknowledgment is to be taken. If either party to the marriage resides</span></p><p><span style="font-family: arial;"> upon an island located not less than twenty-five miles from the office</span></p><p><span style="font-family: arial;"> or residence of the town clerk of the town of which such island is a</span></p><p><span style="font-family: arial;"> part, and if such office or residence is not on such island such license</span></p><p><span style="font-family: arial;"> may be obtained from any justice of the peace residing on such island,</span></p><p><span style="font-family: arial;"> and such justice, in respect to powers and duties relating to marriage</span></p><p><span style="font-family: arial;"> licenses, shall be subject to the provisions of this article governing</span></p><p><span style="font-family: arial;"> town clerks and shall file all statements or affidavits received by him</span></p><p><span style="font-family: arial;"> while acting under the provisions of this section with the town clerk of</span></p><p><span style="font-family: arial;"> such town. No application for a marriage license shall be denied on the</span></p><p><span style="font-family: arial;"> ground that the parties are of the same, or a different, sex. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations Law § 13-b was amended to make conforming changes regarding designating one-day marriage officiants.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations Law § 13-b was amended to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> § 13-b. Time within which marriage may be solemnized. A marriage shall</span></p><p><span style="font-family: arial;"> not be solemnized within twenty-four hours after the issuance of the</span></p><p><span style="font-family: arial;"> marriage license, unless authorized by an order of a court of record as</span></p><p><span style="font-family: arial;"> hereinafter provided, nor shall it be solemnized after sixty days from</span></p><p><span style="font-family: arial;"> the date of the issuance of the marriage license unless authorized</span></p><p><span style="font-family: arial;"> pursuant to section three hundred fifty-four-d of the executive law.</span></p><p><span style="font-family: arial;"> Every license to marry hereafter issued by a town or city clerk, in</span></p><p><span style="font-family: arial;"> addition to other requirements specified by this chapter, must contain a</span></p><p><span style="font-family: arial;"> statement of the day and the hour the license is issued and the period</span></p><p><span style="font-family: arial;"> during which the marriage may be solemnized. It shall be the duty of the</span></p><p><span style="font-family: arial;"> clergyman, magistrate, or one-day marriage officiant, as designated by </span></p><p><span style="font-family: arial;"> a town or city clerk pursuant to section eleven-d of this</span></p><p><span style="font-family: arial;"> article, performing the marriage ceremony, or if the marriage is solem-</span></p><p><span style="font-family: arial;"> nized by written contract, of the judge before whom the contract is</span></p><p><span style="font-family: arial;"> acknowledged, to annex to or endorse upon the marriage license the date</span></p><p><span style="font-family: arial;"> and hour the marriage is solemnized. A judge or justice of the supreme</span></p><p><span style="font-family: arial;"> court of this state or the county judge of the county in which either</span></p><p><span style="font-family: arial;"> party to be married resides, or the judge of the family court of such</span></p><p><span style="font-family: arial;"> county, if it shall appear from an examination of the license and any</span></p><p><span style="font-family: arial;"> other proofs submitted by the parties that one of the parties is in</span></p><p><span style="font-family: arial;"> danger of imminent death, or by reason of other emergency public inter-</span></p><p><span style="font-family: arial;"> est will be promoted thereby, or that such delay will work irreparable</span></p><p><span style="font-family: arial;"> injury or great hardship upon the contracting parties, or one of them,</span></p><p><span style="font-family: arial;"> may, make an order authorizing the immediate solemnization of the</span></p><p><span style="font-family: arial;"> marriage and upon filing such order with the clergyman, magistrate, or</span></p><p><span style="font-family: arial;"> one-day marriage officiant performing the marriage ceremony, or if the</span></p><p><span style="font-family: arial;"> marriage is to be solemnized by written contract, with the judge before</span></p><p><span style="font-family: arial;"> whom the contract is acknowledged, such clergyman, magistrate or such</span></p><p><span style="font-family: arial;"> one-day marriage officiant may solemnize such marriage, or such judge</span></p><p><span style="font-family: arial;"> may take such acknowledgment as the case may be, without waiting for</span></p><p><span style="font-family: arial;"> such three day period and twenty-four hour period to elapse. The clergy-</span></p><p><span style="font-family: arial;"> man, magistrate, judge, or such one-day marriage officiant, as desig-</span></p><p><span style="font-family: arial;"> nated by a town or city clerk pursuant to section eleven-d of this article, must file such order with the town or city clerk who</span></p><p><span style="font-family: arial;"> issued the license within five days after the marriage is solemnized.</span></p><p><span style="font-family: arial;"> Such town or city clerk must record and index the order in the book</span></p><p><span style="font-family: arial;"> required to be kept by him or her for recording affidavits, statements,</span></p><p><span style="font-family: arial;"> consents and licenses, and when so recorded the order shall become a</span></p><p><span style="font-family: arial;"> public record and available in any prosecution under this section. A</span></p><p><span style="font-family: arial;"> person who shall solemnize a marriage in violation of this section shall</span></p><p><span style="font-family: arial;"> be guilty of a misdemeanor and upon conviction thereof shall be punished</span></p><p><span style="font-family: arial;"> by a fine of fifty dollars for each offense, and in addition thereto,</span></p><p><span style="font-family: arial;"> his or her right to solemnize a marriage shall be suspended for ninety</span></p><p><span style="font-family: arial;"> days. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Section 110 of the executive law regarding one-day marriage officiants was repealed. </span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations law § 11-d was added to authorize town or city clerks to issue one-day marriage officiant licenses and lays out the requirements for a one-day marriage officiant license.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations law § 11-d was added to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> § 11-d. One-day marriage officiant license. 1. A town or city clerk</span></p><p><span style="font-family: arial;"> shall issue a one-day marriage officiant license upon request. Such</span></p><p><span style="font-family: arial;"> one-day marriage officiant shall have the authority to solemnize a</span></p><p><span style="font-family: arial;"> marriage which marriage shall be valid if performed in accordance with</span></p><p><span style="font-family: arial;"> other provisions of law. Nothing herein contained shall nullify the</span></p><p><span style="font-family: arial;"> authority of other persons authorized to solemnize marriages.</span></p><p><span style="font-family: arial;"> 2. Such one-day marriage officiant shall be eighteen years of age or</span></p><p><span style="font-family: arial;"> over and need not be a resident of the town or city to which they apply</span></p><p><span style="font-family: arial;"> or a resident of the state. A one-day marriage officiant shall have the</span></p><p><span style="font-family: arial;"> authority to solemnize a marriage anywhere in the state.</span></p><p><span style="font-family: arial;"> 3. An applicant for a one-day marriage officiant license must apply</span></p><p><span style="font-family: arial;"> for such license in the same town or city clerk's office as the couple</span></p><p><span style="font-family: arial;"> to be married. Such applicant shall not be required to personally</span></p><p><span style="font-family: arial;"> appear.</span></p><p><span style="font-family: arial;"> 4. A town or city clerk shall be entitled to a fee of twenty-five</span></p><p><span style="font-family: arial;"> dollars for issuing a one-day marriage officiant license. Such license</span></p><p><span style="font-family: arial;"> shall be issued only after payment of such fee and submission of a</span></p><p><span style="font-family: arial;"> completed application form.</span></p><p><span style="font-family: arial;"> 5. The application form shall require the following information of the</span></p><p><span style="font-family: arial;"> applicant: name, date of birth, address, email address and telephone</span></p><p><span style="font-family: arial;"> number. The application form shall also require the following informa-</span></p><p><span style="font-family: arial;"> tion of the parties to be married: names, dates of birth, and addresses</span></p><p><span style="font-family: arial;"> as they appear on the application for a marriage license.</span></p><p><span style="font-family: arial;"> 6. Such license shall only be valid for the parties to be married as</span></p><p><span style="font-family: arial;"> stated on the application and shall expire upon the earlier of either</span></p><p><span style="font-family: arial;"> completion of such solemnization or the expiration of the marriage</span></p><p><span style="font-family: arial;"> license.</span></p><p><span style="font-family: arial;"> 7. One-day marriage officiants shall be exempt from registration as</span></p><p><span style="font-family: arial;"> required pursuant to section eleven-b of this article. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Parties’ agreement in their stipulation did not provide an appropriate rationale for the court’s calculation of child support on parental income over the statutory cap.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Monaco v Monaco, --- N.Y.S.3d ----, 2023 WL 2290584, 2023 N.Y. Slip Op. 01091 (2d Dept.,2023) the parties were married in 1996 and had three children. In February 2013, they executed a stipulation of settlement, which was incorporated but not merged into their judgment of divorce entered June 24, 2013. Pursuant to the parties’ stipulation, the father’s child support obligation was $1,618.02 every two weeks. In determining the father’s child support obligation, the parties agreed to apply the statutory percentage under the Child Support Standards Act ( CSSA) to their total combined parental income of $185,980. In September 2020, the father filed a petition seeking a downward modification of his child support obligation. Subsequently, the mother filed a petition for an upward modification. After a hearing, in an order dated December 3, 2021, a Support Magistrate, in effect, granted the father’s petition. The Support Magistrate found that the parties’ combined parental income under the CSSA was $251,708.46, which exceeded the statutory cap of $154,000. The Support Magistrate determined that it was appropriate to apply the statutory percentages to the combined parental income up to the statutory cap. The Family Court determined that the Support Magistrate should have used the entire combined parental income, including the amount exceeding the statutory cap, in calculating the father’s child support obligation. The Appellate Division held that Family Court should have denied the mother’s objection to the Support Magistrate’s determination to calculate child support based on the combined parental income up to the statutory cap. It observed that where, as here, the combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the cap, the court has the discretion to apply the factors set forth in Family Court Act § 413(1)(f), or to apply the statutory percentages, or to apply both. The Family Court based its decision to calculate child support on combined parental income in excess of the statutory cap on the parties’ agreement in their stipulation of settlement to apply the statutory percentage to their total combined parental income. The court found that the parties intended for their children to enjoy the standard of living that the children would have enjoyed had the family remained intact. However, the parties’ agreement in their stipulation did not provide an appropriate rationale for the court’s calculation of child support on parental income over the statutory cap. The record supported the Support Magistrate’s determination that it was appropriate to apply the statutory percentages to the statutory cap of $154,000, with no further support obligation based on the combined parental income over that amount. When determining an appropriate amount of child support, a court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle” (Hepheastou v. Spaliaras, 201 A.D.3d at 795, 162 N.Y.S.3d 75; see Kaufman v. Kaufman, 189 A.D.3d at 72, 133 N.Y.S.3d 54). The parties’ testimony at the hearing established that the two older children were no longer attending school, and that the oldest child was employed. The mother reported in her financial disclosure affidavit that she had no tuition or child care expenses, and there was no indication that the children are engaged in extracurricular activities. Moreover, although the father’s gross income was higher than the mother’s gross income, the record did not establish that the difference between the parties’ gross incomes warranted applying the statutory percentages to the parties’ combined income in excess of the statutory cap. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Family Court may not, upon request by an AFC, prohibit a child protective agency from discussing the issues of surrender and adoption with a child in its custody</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Michael H., --- N.Y.S.3d ----, 2023 WL 2315550, 2023 N.Y. Slip Op. 01119 (3d Dept.,2023), a termination of parental rights case the question presented on appeal was whether Family Court may, upon request by an AFC, prohibit a child protective agency from discussing the issues of surrender and adoption with a child in its custody. The Appellate Division observed that a ”child protective agencies have “a duty to conduct family assessments and to develop a plan of services made in consultation with the family and each child over 10 years old, whenever possible. A child protective agency must “provide casework contact services” to, among others, children under its care (18 NYCRR 441.21[a]). Under the statutory and regulatory scheme, child protective agencies and their caseworkers have an obligation to discuss matters of permanency, which include adoption, with the child. Here, during the judicial surrender appearance, the AFC requested that Family Court issue an order that, “until I’ve spoken to [the child], no one is to speak to [the child] about surrender and adoption.” The Appellate Division observed that although circumstances may arise where it may be appropriate to allow an attorney for children reasonable time to discuss sensitive matters of importance, such as adoption or surrender, with their child-client before anyone else does, Family Court’s order was not a temporal arrangement to allow the AFC an opportunity to broach the issue with the child. Instead, the order was an outright ban on anyone, including petitioner’s caseworkers, having a discussion with the child regarding issues that are central to the child’s permanency (see Family Ct Act § 1089[c][1][ii]). Although the child has a right to meaningful representation and to learn about legal issues from the AFC, attorneys for children cannot transform such responsibility into a roadblock, as occurred here, preventing petitioner from fulfilling its mandates and planning for the child’s permanency and well-being (see 18 NYCRR 428.6; 441.21). Therefore, it found that Family Court erred when, through the order on appeal interfered with petitioner’s statutory obligations and responsibilities. The order was reversed on the law and vacated.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">March 1, 2023 </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Child Support Standards Chart Revised March 1, 2023 and Revised Forms</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Child Support Standards Chart Revised March 1, 2023</span></p><p><span style="font-family: arial;">Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2023. The revised forms reflect the increases as of March 1, 2023 in the Self Support Reserve from $18,346.50 to $19,683 and in the federal Poverty Level Income for a single person from $13,590 to $14,580.</span></p><p><span style="font-family: arial;">Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2023 reflecting these changes are posted.</span></p><p><span style="font-family: arial;">Uncontested Divorce Forms revised March 1, 2023 reflecting these changes are also posted.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, First Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Family Court erred when it denied the mother’s motion without a hearing, asking Family Court to convert its temporary emergency jurisdiction to permanent jurisdiction under the (UCCJEA) </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Nathaniel H., --- N.Y.S.3d ----, 2023 WL 2025651, 2023 N.Y. Slip Op. 00927 (1st Dept.,2023) the petition alleged that the father neglected the child by committing acts of domestic violence against the mother, including in the child’s presence, when they resided together in Texas, and that the mother had fled Texas with the child and moved to Virginia in September 2020, and then to New York in January 2021. Based on these allegations, Family Court properly exercised temporary emergency jurisdiction on May 3, 2021, when it issued a limited temporary order of protection in favor of the mother and child against the father, and ordered that the child be released to the mother with ACS supervision (Domestic Relations Law § 76–c[1]). The Appellate Division held that Family Court erred when, by order dated September 15, 2021, without first holding a hearing, it denied the mother’s motion asking Family Court to convert its temporary emergency jurisdiction to permanent jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or to continue its temporary emergency jurisdiction, and relinquished temporary emergency jurisdiction based on the existence of a custody proceeding filed by the father in Texas. Family Court improperly relinquished emergency jurisdiction for three reasons. First, there is no evidence in this record, and Family Court’s order fails to state any basis for finding, that the Texas court had “home state” jurisdiction, since the child had not resided there for six months immediately preceding commencement of the father’s Texas custody proceeding (Domestic Relations Law §§ 75–a[7]; 76[1][a]). Second, the record and Family Court’s order are also devoid of any factual basis for finding that any of the alternative jurisdictional bases applied to Texas. There is no evidence that the child at that time had a “significant connection” with Texas or that “substantial evidence . . . concerning the child’s care, protection, training and personal relationships” was available in Texas (Domestic Relations Law § 76[1][b]). Finally, given the allegations in the neglect petition and the fact that Family Court had been informed on or about June 3, 2021 that the Texas Department of Family and Protective Services would not investigate whether the father was a danger to the child because the mother and child resided in New York, Family Court should not have relinquished emergency jurisdiction “in the absence of any orders from the Texas court safeguarding the child. It held that Family Court should not have denied the mother’s motion without first holding a hearing.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Kassenoff v Kassenoff, --- N.Y.S.3d ----, 2023 WL 2000546, 2023 N.Y. Slip Op. 00850(2d Dept.,2023) the parties to this action for a divorce, who were the parents of three children, appeared for a conference to discuss, among other things, certain communications between the defendant and the plaintiff’s employer. On March 9, 2020, the plaintiff’s attorney submitted a proposed order to the Supreme Court which included provisions prohibiting the defendant from communicating with any employee of the plaintiff’s employer “regarding the Plaintiff, ... the facts and circumstances of this divorce (in the broadest meaning of the terms), the facts and circumstances of the parties’ marriage prior to the filing of this divorce, or the parties’ children,” and further prohibiting both parties from “criticizing, denigrating or disparaging the other on any form of social media.” On May 25, 2021, the court signed the order. The defendant moved to vacate the order and Supreme Court denied the defendant’s motion. The defendant contended on appeal that the order dated May 25, 2021, was an unconstitutional prior restraint and content-based restriction on her First Amendment right to free speech. The Appellate Division modified the order. It held that a prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression. A party seeking to impose such a restraint bears a heavy burden of demonstrating justification for its imposition. Such a party must demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case. It agreed with the defendant that the restrictions placed upon her communications with employees of the plaintiff’s employer were not tailored as precisely as possible to the exact needs of this case. Specifically, the restriction prohibiting the defendant from discussing the children with any employee of the plaintiff’s employer was not necessary to prevent professional reputational harm to the plaintiff or financial or emotional harm to the children. It vacated the restriction on the defendant’s ability to discuss the children with any employee of the plaintiff’s employer.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Attorney-client privilege shields confidential communications between an attorney and client made for the purpose of obtaining or facilitating legal advice</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Kassenoff v Kassenoff, --- N.Y.S.3d ----, 2023 WL 2000604, 2023 N.Y. Slip Op. 00849 (2d Dept.,2023) in May 2019, the plaintiff commenced an action for a divorce. In June 2019, the plaintiff moved, inter alia, for temporary sole legal and physical custody of the parties’ three children, relying on certain text messages between the defendant and nonparty Cynthia Monaco, a friend of the defendant and an attorney. The defendant then moved, among other things, to compel the plaintiff to return or destroy those electronic communications between her and Monaco, on the basis of the attorney-client privilege. Supreme Court, inter alia, denied the defendant’s motion. The Appellate Division affirmed. It observed that Article 45 of the CPLR contains, inter alia, the evidentiary privileges based on confidential communications between, among others, attorney and client (see CPLR 4503). The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship. The critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client. The party asserting the privilege has the burden of demonstrating that it is applicable. Here, the Supreme Court properly determined that the defendant failed to establish that an attorney-client relationship existed between her and Monaco, and that the subject electronic communications were therefore privileged based on such a relationship. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The parties’ ability to enter into an enforceable settlement agreement is specifically conditioned upon the provisions of GOL § 5–311 which prohibits spouses from contracting to “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge.” </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Majid v Hasson, 2023 WL 2168397 (3d Dept.,2023) Plaintiff (husband) and defendant ( wife) were married in Iraq in 1988 and had one unemancipated child (born in 2010). The husband commenced an action for divorce in April 2019. The wife applied for poor person status and appointment of counsel, which Supreme Court granted. The parties executed a settlement agreement. According to the wife, she immediately rescinded her assent and demanded the return of the agreement. When it was not returned to her, she sought, and was appointed, new counsel. The wife moved to set aside the settlement agreement asserting that her lack of English proficiency and the general economic unfairness of the terms rendered the agreement unjust and unconscionable. Supreme Court denied the wife’s motion and entered a judgment of divorce incorporating, but not merging, the settlement agreement. The Appellate Division observed, inter alia, that the parties’ ability to enter into an enforceable settlement agreement is specifically conditioned upon the provisions of General Obligations Law § 5–311 which prohibits spouses from contracting to dissolve a marriage and “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge.” The fact that a wife waives spousal support, even in a long-term marriage, does not, in and of itself, render an agreement unconscionable, especially an agreement containing affirmations that the parties have been made aware of the current spousal support guidelines and wherein they both represent that they are capable of self-support. Article four of the settlement agreement, concerning spousal support, set forth the wife’s income as $11,446, which was well below the applicable federal 2020 poverty guidelines. As such, there was a question as to whether this provision was in violation of General Obligations Law § 5–311 in that the wife “is likely to become a public charge.” Because of this, it found that Supreme Court erred when it failed to make an inquiry into the circumstances surrounding the wife’s waiver of spousal support. The matter was remitted for a hearing at which Supreme Court must necessarily also inquire into child support as the Child Support Standards Act requires that “maintenance shall be calculated prior to child support because the amount of maintenance shall be subtracted from the [husband]’s income and added to the [wife]’s income as part of the calculation of the child support obligation. It observed that because the settlement agreement contained a severability clause it saw no reason to set aside the judgment of divorce.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Federal stimulus payments are subject to equitable distribution and, therefore, Family Court does not have jurisdiction to direct a father to remit them to the mother.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Josefina O. v. Francisco P, 2023 WL 2168447 (3d Dept.,2023)</span></span></p><p><span style="font-family: arial;">Petitioner ( mother) and respondent (father) were separated parents of five children. By an order of support on consent entered in August 2019, the father agreed to pay the mother a weekly sum of child support and spousal support. In December 2020, the mother filed a family offense petition against the father. A month later, in January 2021, the mother commenced a divorce action and, in the context of this proceeding, the mother moved, for temporary child support and for the recoupment of federal stimulus payments received by the father for the benefit of the children. Family Court granted the mother’s motion under the guise of its authority “to issue a temporary order for child support ... within a family offense proceeding” pursuant to Family Ct Act § 828(4), and ordered that the father pay the mother a lump sum of money representing the children’s share of the federal stimulus funds that he received. The Appellate Division agreed with the father that the federal stimulus payments were subject to equitable distribution and, therefore, Family Court did not have jurisdiction to direct him to remit them to the mother. The Coronavirus Aid, Relief, and Economic Security Act provided eligible individuals an “advance refund amount” of the applicable tax credit of $500 for each qualifying child. Thereafter, eligible individuals were entitled to an additional “advance refund” of the applicable tax credit of $600 for each qualifying child under the Tax Relief Act of 2020. These federal stimulus payments were not paid “for the benefit of the minor children,” but they were the parties’ advance refund for a tax credit earned pursuant to their last tax return, which was jointly filed, and which was partially measured by the number of children the tax filers had listed as dependents. Generally, a tax refund is marital property and subject to equitable distribution by Supreme Court. Although, within the context of a family offense petition, Family Court may issue an order for temporary child support, and there could be appropriate circumstances where a party’s tax refund may be seized to satisfy child support obligations those circumstances were not present here. Moreover, Family Court’s order lacked the necessary requirements of an order for temporary support, and did not comply with the relevant statute’s requirement to advise the mother regarding services of the support collection unit (see Family Ct Act § 828[4]) – which had already been collecting the father’s regular payments. Nor did the order satisfy the purpose of temporary child support, particularly when further considering the legislative intent behind Family Ct Act § 828(4), which was enacted as part of the Family Protection and Domestic Violence Intervention Act of 1994 (see Senate Introducer’s Mem in Support, Bill Jacket, L 1994, ch 222 at 16, 24). Accordingly, it was an error to order the father to remit these advance tax refunds to the mother under the guise of a temporary order of child support</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Resettlement is an appropriate, and preferred, remedy when a party alleges that an order does not accurately incorporate the terms of a stipulation</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Patrick UU v Francesca VV, --- N.Y.S.3d ----, 2023 WL 2168419, 2023 N.Y. Slip Op. 01040 (3d Dept., 2023) the Appellate Division held that there is no specific time limit in which to move to resettle. Resettlement, which “rest[s] on the inherent power of courts to cure mistakes, defects and irregularities that do not affect substantial rights of the parties”, is an appropriate, and preferred, remedy when a party alleges that an order does not accurately incorporate the terms of a stipulation.</span></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">February 16, 2023 </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, First Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Expenses for a child’s residential program in a therapeutic boarding school properly treated as medical or therapeutic, rather than educational, where the program did not offer classes or course credit</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In Matter of Ning-Yen Y v Karen K, --- N.Y.S.3d ----, 211 A.D.3d 622, 2022 WL 17835664, 2022 N.Y. Slip Op. 07310 (1st Dept.,2023), the parties’ parenting agreement provided that the children’s educational costs were to be allocated 70% to the father and 30% to the mother, while unreimbursed, nonelective medical, therapeutic, and psychiatric expenses were to be allocated 92% to the father and 8% to the mother. The Appellate Division held that it was an improvident exercise of discretion for the Family Court to deny the mother’s objection to the Support Magistrate’s characterization of the residential treatment program in Idaho as an educational expense rather than a therapeutic expense. The evidence presented at the hearing demonstrated that the subject program did not offer classes or course credit, and the father does not dispute that the child took online courses and classes at a local high school from which he received his high school diploma. Moreover, the father’s email to the mother and testimony made clear that the overriding purpose of enrolling the child in the therapeutic boarding school ... was to provide the child with intensive psychiatric and substance abuse treatment in a residential setting. Accordingly, the expenses for the residential program were properly treated as medical or therapeutic rather than educational, and the amount allocated to the mother for the expenses of this program must be recalculated at 8% rather than 30%.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The child does not have full-party status and cannot veto a settlement reached by the parents and force a trial after the attorney for the child had a full a fair opportunity to be heard.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Matter of Kylie P.--- N.Y.S.3d ----, 2023 WL 1826825 (Mem), 2023 N.Y. Slip Op. 00735 (1st Dept.,2023) after the court determined that there had been a change in circumstances warranting modification of the prior custody order, the parents entered into a settlement agreement, which the court incorporated into a modified custody order over the objection by the attorney for the older child. The Appellate Division held that although the attorney for the child in a custody proceeding has authority to pursue an appeal on behalf of the child, the child does not have full-party status and cannot veto a settlement reached by the parents and force a trial after the attorney for the child had a full a fair opportunity to be heard.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Bonds, purchased during the marriage with separate property and placed in both parties’ names, were not the defendant’s separate property</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> In Glessing v Glessing,--- N.Y.S.3d ----, 2023 WL 380072, 2023 N.Y. Slip Op. 00306 (2d Dept.,2023) the parties were married in 1992. In 2017, the plaintiff commenced this action for a divorce. A judgment of divorce was entered in 2019. Supreme Court denied the defendant a separate property credit of $220,000 for the purchase of the marital residence; (2) directed the defendant to remit half of the cash in a home safe to the plaintiff; (3) directed the defendant to remit $23,692.64 from a Chase bank account to the plaintiff; (4) directed the distribution of the net proceeds of certain bonds to be divided equally between the parties; (5) directed the defendant to pay the plaintiff half of the parties’ marital credit card debt; and (6) awarded the plaintiff counsel fees.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division affirmed. It rejected the defendant’s contention that the “I” bonds, purchased in both parties’ names, were his separate property because he purchased them with proceeds from his disability pension. Pension benefits, except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property because they are “in essence, a form of deferred compensation derived from employment” during the marriage. However, any compensation a spouse receives for personal injuries is not considered marital property and is not subject to equitable distribution. Thus, to the extent a disability pension represents deferred compensation, it is subject to equitable distribution while to the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution. However, separate property that is commingled with marital property may lose its separate character. Here, although the Supreme Court determined that the plaintiff was not entitled to share in any portion of the defendant’s pension that was attributable to the defendant’s disability pension, it found that the “I” bonds, purchased during the marriage and placed in both parties’ names, were not the defendant’s separate property. Thus, the court providently exercised its discretion in ordering the net proceeds of the bonds to be divided equally between the parties.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Letter of intent between spouses was unenforceable because it did not comply with the DRL§ 236(B)(3) requirement that signatures must be acknowledged or proven in the manner required to record a deed.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> In Chin-Cheung v Cheung, --- N.Y.S.3d ----, 2023 WL 379756, 2023 N.Y. Slip Op. 00301 (2d Dept.,2023) the parties were married in 1964. During the marriage, the parties signed an agreement entitled “Letther [sic] of Intent Between [the defendant] and [the plaintiff] Property Ownership Agreement” in which the parties agreed not to share assets with each other in the event of a divorce if the defendant transferred all shares of a certain corporation to their adult son. In 2018, the plaintiff commenced this action for a divorce. The plaintiff moved, inter alia, for a determination that the letter of intent is an invalid and unenforceable postnuptial agreement. Supreme Court, inter alia, granted the plaintiff’s motion. The Appellate Division affirmed. The letter of intent was an agreement between spouses subject to Domestic Relations Law § 236(B)(3). A written agreement between spouses made before or during a marriage concerning the ownership, division, or distribution of property which does not meet the formalities of Domestic Relations Law § 236(B)(3) is not enforceable. The letter of intent was unenforceable because it did not comply with the Domestic Relations Law § 236(B)(3) requirement that signatures must be acknowledged or proven in the manner required to record a deed (see Galetta v. Galetta, 21 N.Y.3d at 192, 969 N.Y.S.2d 826, 991 N.E.2d 684; Matisoff v. Dobi, 90 N.Y.2d at 135, 659 N.Y.S.2d 209, 681 N.E.2d 376).</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">A suspension of child support payments is warranted where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights</span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Morgan v Morgan, --- N.Y.S.3d ----, 2023 WL 1425597, 2023 N.Y. Slip Op. 00424 (2d Dept.,2023) the mother was awarded sole custody of the children, and the father was directed to pay child support to the mother. In July 2019, the father moved to suspend his child support obligation, alleging, inter alia, parental alienation on the part of the mother. Family Court suspended his child support obligation on the ground of parental alienation. The Appellate Division affirmed. It held that child support payments may be suspended ‘where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent. A suspension of child support payments is warranted only where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights. The evidence adduced at the hearing demonstrated that the children held distorted and illogical views regarding the father and his efforts to develop a relationship with them. There was evidence that the older child, for example, viewed the father’s efforts to develop a relationship with the children as threatening, had homicidal thoughts with regard to the father, and refused to believe that the father had traveled to visit with her even when presented with photographs and the father’s passport demonstrating that he had. There was also evidence that the mother failed to make efforts to assist the children in developing a relationship with the father, and instead encouraged the children’s negative view of the father in an apparent effort to weaponize the children against him. The mother refused to produce the children for parental access on numerous occasions, particularly after sessions of supervised parental access that were seen as successful in moving the children towards reunification with the father, and she discussed the father’s child support payments with one of the children. The mother had also refused to produce the children for an evaluation with the court-ordered forensic evaluator after having initially done so because, according to the mother, one of the children had been traumatized by an earlier session. The evaluator testified that the mother engaged in an intentional “pattern of alienation” in which she would withhold the children from parental access with the father following appropriate and positive interactions between them, claiming that the children had been traumatized by the visit.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">There is no per se rule that a finding of abuse or neglect of one sibling requires a finding of derivative abuse or neglect with respect to the other siblings</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Mattter of Destiny R, --- N.Y.S.3d ----, 2023 WL 152067, 2023 N.Y. Slip Op. 00093 (2d Dept.,2023) the Appellate Divison observed that proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent” (Family Ct Act § 1046[a][i]). There is no per se rule that a finding of abuse or neglect of one sibling requires a finding of derivative abuse or neglect with respect to the other siblings. The focus of the inquiry with respect to derivative findings is whether the evidence of abuse or neglect of another child or children demonstrates such an impaired level of parental judgment so as to create a substantial risk of harm for the other child or children in the parent’s care.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Mother’s 911 call fell within the excited utterance exception to the rule against hearsay where she made the call immediately after a startling and disturbing event, while still concerned for the safety of her children, and her demeanor indicated that the statements represented “impulsive and unreflecting responses” to the startling event.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Omar G, --- N.Y.S.3d ----, 2023 WL 152056, 2023 N.Y. Slip Op. 00085 (2d Dept.,2023) the appellant, an adolescent offender was charged with criminal possession of a weapon in the second degree, among other offenses. At a fact-finding hearing in the Family Court, a recording of the call placed by the mother to the 911 emergency number during the incident was admitted into evidence under the excited utterance exception to the hearsay rule. During this call, the mother told the 911 operator, in an anxious tone and without being prompted, that “I need police.... My son’s got a gun and he’s waving it.... I have kids in the house.” She indicated that she needed to return to the apartment, which she had left in order to make the call. The Family Court also admitted into evidence, under the excited utterance exception, a video recording of a statement made by the mother during questioning by police officers in the apartment after the appellant had been arrested and taken to a police station, and permitted a police officer to testify as to the contents of the mother’s statement. While being interviewed by police officers, the mother recounted to the police officers that the appellant, while displaying a gun, said to her “I will boom you,” and also said that he would “boom” the mother’s boyfriend. Family Court, inter alia, found that the appellant committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the second degree, criminal possession of a firearm, endangering the welfare of a child, and obstructing governmental administration in the second degree, and adjudicated him a juvenile delinquent. The Appellate Division held that the recording of the mother’s 911 call fell within the excited utterance exception to the rule against hearsay. The mother made the call immediately after a startling and disturbing event, while she was still concerned for the safety of the two children in the apartment, and her demeanor indicated that the statements represented “impulsive and unreflecting responses” to the startling event. It erred however, in admitting as excited utterances the statements subsequently made by the mother while being interviewed by police officers in her apartment. Those statements, made after the appellant had been handcuffed and removed from the scene, were not spontaneous, but were made in narrative form and in response to prompting, after sufficient time had passed to render the mother capable of engaging in reasoned reflection. Although the mother raised her voice and became agitated as she recalled the incident, she was no longer acting under the stress of the incident itself, and her tone “did not evidence an inability to reflect upon the events” (People v. Cantave, 21 N.Y.3d 374, 382, 971 N.Y.S.2d 237, 993 N.E.2d 1257). The error in admitting those statements was not harmless with respect to the charge of criminal possession of a weapon in the second degree, and appellant was entitled to a new fact-finding hearing on the count of the petition charging criminal possession of a weapon in the second degree.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">When a party has defaulted, the court must order child support based upon the needs or standard of living of the child, whichever is greater</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Rosenbaum v Festinger, --- N.Y.S.3d ----, 2023 WL 1808123, 2023 N.Y. Slip Op. 00684 (2d Dept.,2023) the parties were married in December 2001 and had two children, born in 2003 and 2004, respectively. In January 2013, the plaintiff commenced this action for a divorce. In September 2014, the plaintiff moved, inter alia, to direct the defendant to comply with certain discovery requests and, if the defendant failed to comply, to preclude him from offering evidence at trial relating to financial matters. In an order dated December 23, 2014, after a hearing, the Supreme Court granted the plaintiff’s motion. It stated, inter alia, that, in the event that the defendant failed to comply with the order, the court would determine child support based on the children’s needs as established at trial rather than upon consideration of the formula and factors set forth in the Child Support Standards Act. Subsequently, the defendant failed to comply with the conditional order of preclusion and, consequently, was precluded from presenting evidence at trial regarding his financial circumstances. In a judgment of divorce the Supreme Court, inter alia, directed the defendant to pay child support to the plaintiff of $5,597 per month. The Appellate Division affirmed. It held that when a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs or standard of living of the child, whichever is greater” (Domestic Relations Law § 240[1–b][k]). Here, as authorized, the Supreme Court calculated the defendant’s monthly child support obligation on the basis of the children’s needs and did not impute income to the defendant. Thus, the requirement that the court specifically state the amount of income imputed and the resultant calculations did not apply.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;">Under the UCCJEA, a court of New York shall treat a foreign country as if it were a state of the United States” and may treat a foreign nation as a home state</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Cavez v Maldonado, --- N.Y.S.3d ----, 2023 WL 1808086, 2023 N.Y. Slip Op. 00659 (2 Dept.,2023) the parties have one son, born in March 2009, who had resided in Guatemala with the mother since birth. The father lives in New York. On June 20, 2021, the mother and the child came to the United States on tourist visas. On July 6, 2021, the child came to New York to visit the father. In October 2021, when the father allegedly refused to return the child to the mother, the mother filed two petitions for writs of habeas corpus which were later “marked satisfied.” On October 13, 2021, the father moved, by order to show cause, requesting the Family Court to exercise temporary emergency jurisdiction over the child pursuant to Domestic Relations Law § 76–c; he also filed a petition for custody of the child. On October 25, 2021, the mother cross-petitioned for custody. Subsequently, the court confirmed the referee’s finding that New York is not the child’s home state and that there was no basis for the court to exercise temporary emergency jurisdiction. In an order dated December 8, 2021, the court, inter alia, in effect, dismissed the father’s petition on the ground that it lacked jurisdiction and directed that the child be released to the physical custody of the mother for the purpose of returning to Guatemala, the child’s home state. The Appellate Division affirmed. It observed that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75–a[7]) Under the UCCJEA, a court of New York “shall treat a foreign country as if it were a state of the United States” (Domestic Relations Law § 75–d[1]) and thus, may treat a foreign nation as a home state. When the parties commenced their custody proceedings in October 2021, Guatemala was the child’s home state for the purposes of the statute, and New York had never been the home state of the child. The Family Court therefore lacked jurisdiction to make an initial custody determination (see Domestic Relations Law § 76[1][a]).</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> Since the father testified that he was paying the mortgage and utility bills for the house in which the mother and the child were residing, the Support Magistrate erred in failing to ascertain and deduct from his child support obligation the shelter costs incurred by the father in providing housing for the mother and the child</span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Glaudin v Glaudin, --- N.Y.S.3d ----, 2023 WL 1808087, 2023 N.Y. Slip Op. 00662 (2d Dept.,2023) the parties had one child together, who was born in November 2018 while the parties were in the process of obtaining a divorce. The father moved out of the marital residence, which was owned by him as separate property, and the mother and the child continued to live there. In January 2020, the mother filed a petition against the father for child support. After conducting a hearing, the Support Magistrate determined that the father’s assertion that he was unable to procure employment lacked credibility and imputed certain income to him based on his reported monthly expenses. In an order dated January 13, 2021, the Support Magistrate, inter alia, directed the father to pay basic child support of $211 per week. The father filed objections to the Support Magistrate’s order, asserting that he had lost his last job due to absences resulting from being required to attend Family Court proceedings, and that the mother was residing in his home without paying rent or utility bills. In an order dated February 19, 2021, the Family Court denied the father’s objections. The Appellate Division held that the Support Magistrate providently exercised her discretion in imputing income to the father based on his work experience and earning capacity, and her assessment of his credibility. However, since the father testified without contradiction that he was responsible for paying the mortgage and utility bills for the house in which the mother and the child were residing, the Support Magistrate erred in “failing to ascertain and deduct from his child support obligation the shelter costs incurred by the [father] in providing housing for [the mother and the child]” As a result of the failure to award him a credit for the carrying charges he has incurred during the mother’s exclusive occupancy of the marital residence, the father “was making double shelter payments”. The father’s objection to the failure to award him such a credit should have been granted. It remitted the matter to the Family Court for a recalculation of the father’s child support obligation and child support arrears, with the father receiving a credit for any carrying charges incurred by him in providing housing to the mother and the child.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Visitation denied where exposing the children further to the mother, who continued to deny that sexual abuse took place, would retraumatize them and be harmful to their welfare</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of William Z v Kimberly Z, --- N.Y.S.3d ----, 2023 WL 402039, 2023 N.Y. Slip Op. 00352 (3d Dept.,2023) Family Court granted sole custody to the father and denied the mother visitation. The Appellate Division affirmed. It found that the testimony of the children’s three mental health counselors provided ample basis for the court’s conclusion that sexual abuse by the grandfather took place and that the mother was aware of it but took no action to investigate the allegations or protect her children from their abuser. It found that exposing the children further to the mother, who continued to deny that the abuse took place, would retraumatize them and be harmful to their welfare. The record made clear that the mother failed to address or even acknowledge her involvement in the abuse via her own existing counseling. A sound and substantial basis in the record supported Family Court’s determination to deny the mother visitation with the children. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where the court does not identify the family offense(s) proven by the petitioner, the Appellate Division may independently review the record and determine whether the evidence supports Family Court’s finding that the respondent committed one or more family offense. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Pauline DD., v. Dawn DD.--- N.Y.S.3d ----, 2023 WL 402052, 2023 N.Y. Slip Op. 00353 (3d Dept.,2023) petitioner commenced a family offense proceeding. At the conclusion of the hearing, Family Court issued a bench decision, which found that the petitioner had committed the family offense of harassment in the second degree. The court also found that the respondent had committed an unspecified family offense and issued a two-year protection order. The Appellate Division held that where, as here, the court does not identify the family offense(s) proven by the petitioner, it may independently review the record and determine whether the evidence supports Family Court’s finding that the respondent committed one or more family offenses. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;">Where Administrative Law Judge determination was properly before the Support Magistrate and Family Court because it was annexed to the petition and formed a part of that pleading it would not, standing alone, serve as proof of the father’s allegations because it was not formally offered and received into evidence.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Woodcock v Welt, --- N.Y.S.3d ----, 2023 WL 402096, 2023 N.Y. Slip Op. 00360 (3d Dept.,2023) in July 2019, the filed a support modification petition in which he claimed that he was disabled and unable to work. He provided support for that claim, however, annexing to the petition a May 2019 determination by an Administrative Law Judge (ALJ) who had presided over a hearing on his application for Social Security disability benefits. The ALJ determination included a description of the medical proof presented regarding the father’s physical condition, and findings that the father was disabled as defined by federal law as of November 1, 2016 and entitled to supplemental security income. After a hearing on the father’s petition, where the ALJ determination was a subject of inquiry but the written decision itself was never formally entered into evidence, the Support Magistrate issued a decision finding that the father, who had been laid off from his employment during the pendency of the proceeding, had demonstrated a change in circumstances since the prior support order in that he was physically impaired from working. The Support Magistrate found that the father remained capable of performing some work, imputed a lower annual income of $20,280 to him and, relying upon that figure, reduced his support obligation to $50 a month. Family Court denied the mother’s objections. The Appellate Division affirmed. It held that although the ALJ determination was properly before the Support Magistrate and Family Court because it was annexed to the petition and formed a part of that pleading (see CPLR 3014), it would not, standing alone, serve as proof of the father’s allegations because it was not formally offered and received into evidence. However, an order from a Support Magistrate is final and Family Court’s review under Family Ct Act § 439(e) is tantamount to appellate review, and “the absence of timely objection” to evidence at a hearing will result in the waiver of any challenge to its consideration on appeal. The mother offered no objection to the consideration of the ALJ determination during the fact-finding hearing. Both counsel for the mother and the Support Magistrate questioned the father regarding the ALJ determination, and he testified regarding its existence, his purported inability to work and his receipt of SSI. The mother waived her objection to consideration of the ALJ determination under these circumstances and, as such, Family Court properly denied it. The Appellate Division was satisfied that the father demonstrated a sufficient change in circumstances to warrant a downward modification in his child support obligation</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span> </span></span></p><p><span style="font-family: arial;">Family Court’s allocution in juvenile delinquency proceeding fell short of the statutory mandate warranting dismissal where Family Court failed to question respondent’s mother regarding the acts to which respondent admitted, his waiver of the fact-finding hearing or her awareness of the possible dispositional options. </span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Christian W.,--- N.Y.S.3d ----, 211 A.D.3d 1378, 2022 WL 17835265, 2022 N.Y. Slip Op. 07275 (3d Dept.,2022) petitioner commenced three juvenile delinquency proceedings against respondent (born in 2008). In satisfaction of all three petitions, respondent admitted to the charge of criminal mischief in the fourth degree, as alleged in the first petition, and consented to be placed in a nonsecure facility for one year. Respondent appealed. The Appellate Division held that respondent’s argument that the plea allocution did not comply with Family Ct Act § 321.3 was not moot, despite the expiration of respondent’s placement, because the delinquency determination challenged herein “implicates possible collateral legal consequences. Further, preservation of such a claim is not required. It held that Family Court must “ascertain through allocution of the respondent and his [or her] parent or other person legally responsible for his [or her] care, if present, that (a) he [or she] committed the act or acts to which he [or she] is entering an admission, (b) he [or she] is voluntarily waiving his [or her] right to a fact-finding hearing, and (c) he [or she] is aware of the possible specific dispositional orders” (Family Ct Act § 321.3[1]). Although respondent’s mother was present at the April 2021 allocution, Family Court only asked her whether she had sufficient time to speak to respondent about the proceedings. The record reflected that the court failed to question respondent’s mother regarding the acts to which respondent admitted, his waiver of the fact-finding hearing or her awareness of the possible dispositional options. As a result, Family Court’s allocution fell short of the statutory mandate (see Family Ct Act § 321.3[1]) The order was reversed and the petition dismissed.<span style="white-space: pre;"> </span></span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Fourth Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The Marihuana Regulation and Taxation Act) amended Family [Court] Act § 1046 (a) (iii), in pertinent part, by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Matter of Gina R, --- N.Y.S.3d ----, 211 A.D.3d 1483, 2022 WL 17882663, 2022 N.Y. Slip Op. 07321(4th Dept.,2023) a neglect proceeding, the Appellate Division, inter alia, agreed with the mother that the court erred in applying Family Court Act § 1046 (a) former (iii) in determining that petitioner established a prima facie case that the subject children were neglected based solely on the mother’s use of marihuana, without presenting evidence that the children’s condition was impaired or at imminent risk of impairment (see Family Ct Act § 1046 [a] [iii]) and modified the order by vacating that finding. “The Marihuana Regulation and Taxation Act (L 2021, ch 92) amended Family [Court] Act § 1046 (a) (iii), in pertinent part, by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana, while still allowing for consideration of the use of marihuana to establish neglect, provided that there is a separate finding that the child’s physical mental or emotional condition was impaired or is in imminent danger of becoming impaired.. The amendment to section 1046 (a) (iii) went into effect on March 31, 2021 (see L 2021, ch 92), two days before the court rendered its decision in this case and, as a general matter, a case must be decided upon the law as it exists at the time of the decision. Inasmuch as petitioner’s presentation of evidence was based on the state of the law at the time of the hearing, petitioner may not have fully explored the issue of impairment. It remitted the matter to Family Court to reopen the fact-finding hearing on the issue whether the children’s condition was impaired or at imminent risk of impairment as a result of the mother’s use of marihuana.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Contract is unambiguous if language it uses has a definite and precise meaning, unattended by danger of misconception, and concerning which there is no reasonable basis for a difference of opinion.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Vella v Vella, 2023 WL 1494924 (4th Dept.,2023) the Appellate Division held that whether an agreement is ambiguous is a question of law for the courts ... Ambiguity is determined by looking within the four corners of the documents, not to outside sources. (Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350, 696 N.E.2d 174 [1998]). A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Family Court order staying petitions for custody is not appealable as of right</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Feltz v Yanucil, 2023 WL 1495062 (4th Dept.,2023) the father filed a petition seeking, inter alia, modification of the prior custody order and the Family Court determined that New York was an inconvenient forum and issued an order staying the proceedings pending the commencement of custody and visitation proceedings in Mercer County, New Jersey. The Appellate Division held that the order staying the father’s petitions was not appealable as of right. (but granted leave to appeal on its own motion). </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">The court does not have the right to impose counseling and related conditions as a prerequisite to visitation</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Sharlow v Hughes --- N.Y.S.3d ----, 2023 WL 1495695, 2023 N.Y. Slip Op. 00518 (4th Dept.,2023) the Appellate Division held that the court erred in requiring the mother to participate in counseling, take her medications as prescribed, and provide proof of a negative hair follicle test prior to having therapeutic visitation with her children. Although the court may include such directives as a component of visitation, it does not have the authority to make them a prerequisite to visitation. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where a party fails to appear in court on a scheduled date but is represented by counsel, the order of protection is not one entered upon the default of the aggrieved party and appeal is not precluded.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Bailey v Bailey, --- N.Y.S.3d ----, 2023 WL 1877874, 2023 N.Y. Slip Op. 00780 (4th Dept., 2023) the Appellate Division agreed with the father that Family Court erred in entering an order of protection upon his default based on his failure to appear in court. The record establishes that the father was represented by counsel, and it has previously determined that where a party fails to appear in court on a scheduled date but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded. It agreed with the father that the court erred in issuing an order of protection without adhering to the procedural requirements of Family Court Act § 154-c (3) ..., inasmuch as the court did not make a finding of fact that the mother was entitled to an order of protection based upon ‘a judicial finding of fact, judicial acceptance of an admission by the father or judicial finding that the father has given knowing, intelligent and voluntary consent to its issuance. The court failed to specify which family offense the father committed. Nevertheless, remittal was not necessary because the record was sufficient for this Court to conduct an independent review of the evidence which was sufficient to establish by a fair preponderance of the evidence that the father committed the family offenses of criminal obstruction of breathing or blood circulation and stalking in the fourth degree warranting the issuance of an order of protection against him (see Family Ct Act § 832).</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Ianello v Colonomos, --- N.Y.S.3d ----, 2023 WL 1877715, 2023 N.Y. Slip Op. 00767 (4th Dept., 2023) the father appealed from an order that inter alia, awarded the parties joint legal custody of the child with primary physical custody to petitioner mother. The Appellate Division observed that in the order on appeal, the court failed to make any factual findings whatsoever to support the award of primary physical custody. It is well established that the court is obligated ‘to set forth those facts essential to its decision. Here, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its initial custody determination, nor did it make any findings with respect to the relevant factors that it considered in making a best interests of the child determination. Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses. It reversed the order and remitted the matter to Family Court to make a determination on the petition and cross petition, including specific findings as to the best interests of the child, following an additional hearing if necessary.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Supreme Court</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Supreme Court held that CPLR § 3122(d) was not intended to include reimbursement of attorneys fees within the context of a matrimonial action</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In L.F.,v. M.F.,--- N.Y.S.3d ----, 2023 WL 1875169, 2023 N.Y. Slip Op. 23038</span></p><p><span style="font-family: arial;">(Sup Ct, 2023) the Supreme Court held that CPLR § 3122(d) was not intended to include reimbursement of attorneys fees within the context of a matrimonial action. CPLR § 3122(d) provides as follows: (d) Unless the subpoena duces tecum directs the production of original documents for inspection and copying at the place where such items are usually maintained, it shall be sufficient for the custodian or other qualified person to deliver complete and accurate copies of the items to be produced. The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery. After a close and fair reading of the plain language of CPLR § 3122(d), this Court did not find that the statute expressly or implicitly authorizes the reimbursement of attorney’s fees for a non-party witness responding to a lawfully issued subpoena, especially within the context of a matrimonial action. Nowhere in the plain language of CPLR § 3122(d) are the words “legal fees”, “counsel fees”, “attorney’s fees” or “fees”.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;"> New York's priest-penitent privilege belongs only to the penitent and only under circumstances affirmed by the New York Court of Appeals in Lightman v. Flaum, 97 N.Y.2d 128, 134, 736 N.Y.S.2d 300, 761 N.E.2d 1027 [2001] (only information imparted ‘in confidence and to obtain spiritual guidance).</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In L.M., v. M.A., 2023 WL 1810035 (Sup Ct, 2023) the Supreme Court declined to quash a subpoena requiring a Coptic Orthodox Church Bishop to testify in a matrimonial action over his objection, allegedly based on religious doctrine, where his testimony was necessary to determine whether or not he conducted a wedding ceremony for the two parties to this action. The parties disagreed about whether they were married in 2017, with the plaintiff stating that they were married, and the defendant stating that the Bishop “blessed” their relationship, but did not marry them. The Bishop refused to testify as to which ceremony he performed, allegedly because his religious conviction prevents him from testifying in a civil action involving church members, and the parties and their witnesses have testified to diametrically conflicting views as to which ceremony took place. The Court and the parties all asked the Bishop to testify. Defendant served a valid subpoena upon the Bishop and the Bishop, through counsel, moved to quash the subpoena, stating through counsel and an affidavit from a Coptic theologian, that it is contrary to the tenets of the religion for the Bishop to testify in civilian court “brother against brother.”Both parties expressly waived any privilege and sought to compel the Bishop’s testimony. The court found that Bishop A.B.’s testimony was necessary to make that “compelling State interest” determination of whether or not the parties were married.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Family Court </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> In Matter of I.M., N.M., J.A.D., D.M., K.D., B.M.,--- N.Y.S.3d ----, 2022 WL 18107290, 2022 N.Y. Slip Op. 22398 (Family Court, 2022) Administration for Children’s Services ( “ACS”) filed an abuse petition against the respondent P.D. (“RF”) on behalf of the children I.M., N.M., J.A.D., D.M. and K.D. A finding of abuse and neglect was entered against RF on behalf of all those children on August 2, 2022. On August 25, 2022, ACS filed another abuse petition against RF and T.M. ( “RM”). On August 29, 2022, the attorney for SC B.M. and the attorney for SC D.M. filed separate applications for DNA testing to be done on RF to determine if he was the biological father of their respective clients. On September 1, 2022, ACS filed a separate application for DNA testing under separate legal grounds but indicated that they fully supported the motions filed by the attorneys for the children. On September 8, 2022, RM filed an application in opposition to the motions filed by the attorneys for the children and ACS. RF filed a response on October 24, 2022, after requesting extensions. Family Court granted the motion. It observed that Family Court Act 1038-a is clear that “upon the motion of a petitioner or attorney for the child, the court may order a respondent to provide non-testimonial evidence, only if the court finds probable cause that the evidence is reasonably related to establishing the allegations in a petition filed pursuant to this article. Such order may include, but not be limited to, provision for the taking of samples of blood, urine, hair or other materials from the respondent’s body in a manner not involving an unreasonable intrusion or risk of serious physical injury to the respondent.” In Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982), the Court held that an order to obtain a blood sample of a suspect may be issued provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a “clear indication” that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable.” In re Anthony M., supra, the Court upheld that the agency had the ability to intervene and request paternity testing where paternity was disputed during a pending abuse matter. However, courts have not found probable cause in cases where the request for nontestimonial evidence was not related to the allegations. The Court granted the motions of the attorneys for the children and ACS and ordered RF and SC D.M. and B.M. to submit to DNA testing forthwith at an approved laboratory and in compliance with all regulations. The Court found probable cause to order RF to submit to DNA testing for the purpose of determining the paternity of both D.M. and B.M. The Court heard and credited the testimony of I.M. during the 2020 fact-finding against RF and his testimony established that RF repeatedly sexually assaulted RM and that both RM and RF made statements claiming that D.M. was their child together. Thus, this put D.M. paternity at issue, as there are conflicting statements from the parties as to his paternity. Establishing his paternity is in his best interests, as he will then know who his father is and there will be no uncertainty surrounding the father/child relationship. As to B.M., ACS alluded in their motion and had previously stated on the record that RF may have made statements in another forum about being the father of B.M. This put his paternity at issue as well and it is in the best interest of the child for him to know his father. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">February 1, 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, First Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Aggravating circumstances exist when the evidence shows that the child was present during a number of violent incidents directed at the petitioner. Aggravating circumstances also exist when the record demonstrates repeated violations of prior orders of protection. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Marta M., v. Gopal M., --- N.Y.S.3d ----, 2023 WL 362984 (1st Dept., 2023) a family offense proceeding, the Appellate Division held that it was not an abuse of discretion for Family Court to conclude that a five-year order of protection for the mother’s benefit, and a two-year order of protection for the children’s benefit was warranted. The finding of aggravating circumstances was supported by a preponderance of the evidence showing that the child was present during a number of violent incidents directed at the petitioner (see Family Court Act § 827[a][vii]; 842). Aggravating circumstances also exist when the record demonstrates repeated violations of prior orders of protection. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Statements of net worth need only be in “substantial compliance” with the prescribed form (22 NYCRR 202.16[b])</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Antoine L v Virginie F., --- N.Y.S.3d ----, 2023 WL 305694, 2023 N.Y. Slip Op. 00252 (1st Dept.,2023) the Appellate Division affirmed an order of the Family Court which to the extent appealed from, awarded the respondent mother $75,000 in interim counsel fees. It held that the court providently exercised its discretion in awarding the mother interim counsel fees (see Domestic Relations Law § 237[b]). Contrary to the father’s contention, the mother’s failure to include with her counsel fee application a statement of net worth in the prescribed form (see 22 NYCRR 202.16[k][2]) did not mandate denial of the application as a matter of law. Although 22 NYCRR 202.16(k)(2) provides that a motion for counsel fees shall not be heard “unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section,” subdivision (b) states that statements of net worth need only be in “substantial compliance” with the prescribed form (22 NYCRR 202.16[b]). The financial disclosure affidavit submitted by the mother substantially complied with the official form.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In Neglect proceeding a Suspended judgment for a period not exceeding six months, with no minimum period specified, is authorized by Family Court Act § 841(b)</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Annissa D v Martha D., --- N.Y.S.3d ----, 2023 WL 362978 (Mem), 2023 N.Y. Slip Op. 00264 (1st Dept.,2023) the Appellate Division affirmed an order of the Family Court which found that the respondent committed acts constituting the family offenses of disorderly conduct and harassment in the second degree, entered a suspended judgment set to expire immediately, vacated the temporary order of protection, and marked the matter off the calendar. It held that Family Court’s disposition was authorized by Family Court Act § 841(b), which provides for the issuance of a suspended judgment for a period not exceeding six months, with no minimum period specified. Under the circumstances of the case, Family Court providently exercised its discretion in imposing such a limit on the suspension period. At the close of the fact-finding hearing, the matter had been pending for nearly two years with a temporary order of protection in place against the respondent, and there had been no allegations that the respondent failed to comply with the order or engaged in any behavior that would warrant an extension. Moreover, in making its determination, the court properly considered the relationship of the parties. Based on the same factors that supported the limit on the suspension period, Family Court providently determined that there was good cause to dismiss the petition.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">A party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Martinez v Carpanzano, --- N.Y.S.3d ----, 2023 WL 152045 (Mem), 2023 N.Y. Slip Op. 00088 (2d Dept., 2023) the Appellate Division affirmed an order which denied the father petition for a downward modification of his child support obligation on the basis that there had been a substantial change in circumstances, namely, that the parties’ older child had reached the age of twenty-one and was now emancipated. The Appellate Division held that while the eldest child’s reaching the age of twenty-one constituted emancipation, this did not automatically reduce the unallocated amount of monthly child support owed by the father, considering the express terms of the parties’ judgment of divorce and the fact that the parties’ other child remained unemancipated. Rather, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children. The father failed to make the requisite showing. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Emancipation occurs once the child becomes economically independent through employment and is self-supporting. A child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support.<span style="white-space: pre;"> </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> In Vayner v Tselniker, --- N.Y.S.3d ----, 2023 WL 152093, 2023 N.Y. Slip Op. 00099 (2d Dpt., 2023 the parties’ stipulation of settlement which was incorporated into the judgment of divorce provided that the child would be emancipated if he attained the age of 18 years and became employed full-time and self-supporting. After a hearing, the Support Magistrate issued an order finding that the child was not emancipated during the period of time from December 14, 2020, to November 27, 2021. The Appellate Division affirmed. It observed that emancipation of the child suspends the parent’s support obligation. Emancipation occurs once the child becomes economically independent through employment and is self-supporting. The fact that a child may work full time is not determinative, as a child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support. The evidence demonstrated that, although the child worked full-time and paid for his own car insurance, his mother still paid for his food, shelter, clothing, laundry, cell phone service, and an income tax preparation service, and his father provided the child with cash and purchased parts that were used to repair the child’s cars.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Order in neglect proceeding relating to the father’s access to the children had to be reversed and the matter remitted where no court proceeding occurred, nor was father present for a discharge conference that was to be held by the petitioner.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">In Matter of Fatuma I. --- N.Y.S.3d ----, 2022 WL 17824593, 2022 N.Y. Slip Op. 07234 (2d Dept.,2022) a neglect proceeding Family Court which directed that the father shall not be present with the children unsupervised, that the father’s parental access with the children shall be supervised by the mother or the maternal grandfather, and that the father shall not reside in or spend the night in the children’s home while the children are present. It found that the Family Court did not hold a hearing before entering the provisions of the order regarding the father’s access to the children, and the father had no opportunity to be heard with respect to those provisions in the order, The court issued the order, apparently with the consent of the petitioner and the mother. No court proceeding occurred, nor did the record reflect that the father was present for a discharge conference that was to be held by the petitioner. Under these circumstances, the provisions of the order relating to the father’s access to the children had to be reversed and the matter remitted to the Family Court, to conduct a new permanency hearing with respect to the father’s access to the children</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Supreme Court erred by declining to distribute any portion of the husband’s 401(k) account to the wife. Husband directed to obtain a letter from his employer setting forth the value of his 401(k) account as of date of commencement and pay to the wife 50% of the amount</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Westbrook v Westbrook, --- N.Y.S.3d ----, 2023 WL 305712, 2023 N.Y. Slip Op. 00255 (3d Dept.,2023) Plaintiff (husband) and defendant (wife) were married in April 2010 and hade three minor children. In August 2020, the husband commenced the action for divorce. At trial, both parties proceeded in a self-represented capacity. The court ordered the husband to pay maintenance to the wife of $150 per week for three years and six months. Supreme Court ordered that the husband continue to pay the mortgage until 30 days after the judgment of divorce, at which time either party could buy out the other’s interest for $7,500 or the house was to be sold. The court did not distribute the husband’s 401(k) account due to a lack of proof regarding the account’s accrual. The husband was to retain and be responsible for a Dodge Ram 1500, and the wife would retain possession and be responsible for maintaining a Jeep Grand Cherokee. Supreme Court ordered that each party also be responsible for all debts solely in his or her name. The court determined that neither party was entitled to an award of counsel fees. The wife appealed.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division found that Supreme Court erred by declining to distribute any portion of the husband’s 401(k) account to the wife. The parties did not dispute that the amount in the husband’s 401(k) account was approximately $1,000 and that those funds accumulated during the marriage and were thus marital property subject to equitable distribution. Although the valuation of the husband’s 401(k) account was not entirely clear, it found that the wife was entitled to her equitable share. It directed the husband, within 60 days of the date of this decision, to obtain a letter from his employer setting forth the value of his 401(k) account as of August 28, 2020 – which is the date the husband commenced this action. The husband was then directed, within 90 days of the date of receipt of this letter, to pay to the wife 50% of the amount set forth by the employer pursuant to the Majauskas formula</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse. Appreciation in the value of [that] separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In George JJ., v. Shannon JJ., --- N.Y.S.3d ----, 2023 WL 306135, 2023 N.Y. Slip Op. 00256 (3d Dept.,2023) Plaintiff (husband) and defendant (wife) were married in 2012 and had four unemancipated children. In 2018, the husband commenced the divorce action. The wife joined issue and asserted a counterclaim alleging an irretrievable breakdown of the parties’ relationship (see Domestic Relations Law § 170[7]). Following a bench trial, Supreme Court issued a decision where it, among other things, granted the husband a financial interest in a property purchased by the wife before the marriage ( Hancock property) and in a certain number of livestock. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held that Supreme Court erred in awarding the husband a financial interest in the Hancock property. Whether a particular asset is marital or separate property is a question of law that a trial court must initially address to ascertain the marital estate. Although a parcel of real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse any appreciation in the value of [that] separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. The “nontitled spouse seeking an interest in the appreciation of separate property occurring during the marriage bears the burden of establishing that the increased value was due in part to his or her efforts as opposed to market forces or other unrelated factors. It was undisputed that the Hancock property was purchased by the wife prior to the marriage. Although the parties also purchased a mobile home for the property and the husband testified that he used his skill as a union carpenter to pour the foundation and place the electric, these events also occurred prior to the marriage and did not transmute the property into marital property. Even though Supreme Court credited the wife’s testimony that a market analysis valued the Hancock property at $49,000, the husband did not dispute the wife’s further testimony that they received an insurance policy on the Hancock property in the amount of $45,000 before the marriage – thereby resulting in a marginal increase in value over the span of the marriage. Despite that the husband offered testimony as to the renovations and general upkeep that he performed at the various other properties owned or managed by the parties during their marriage, he did not indicate what specific efforts he made on the Hancock property after the date of their marriage. Based on this record, the husband did not satisfy his burden of establishing that the value of the Hancock property increased due to his efforts, as opposed to market forces or other unrelated factors. Accordingly, it was an abuse of discretion to award the husband a financial interest in same (see Ceravolo v. DeSantis, 125 A.D.3d at 117, 1 N.Y.S.3d 468; Macaluso v. Macaluso, 124 A.D.3d at 961, 1 N.Y.S.3d 464).</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division found that the record did not support Supreme Court’s valuation of livestock and, therefore, it was an abuse of discretion to award the husband a $40,000 distribution for the cows jointly owned by the parties. Neither party offered any evidence relating to the value of the cows.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division pointed out that although, when the record is sufficiently developed, this Court may, in the interest of judicial economy, make any adjustments necessary for the equitable distribution of the marital estate” absent a detailed record, the Court may remit the matter to Supreme Court for a new determination. Inasmuch as the husband was not entitled to any portion of the value of the Hancock property, and the Supreme Court’s distribution of that asset and of the livestock, both of which were significant assets in the marital estate, may have affected the court’s overall scheme of distribution, it remitted for Supreme Court to reconsider equitable distribution</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;">Family Ct Act § 625(a) provides that if all parties consent the court may, dispense with the dispositional hearing in neglect proceeding. Family Court improperly dispensed with the dispositional hearing where no indication respondent affirmatively consented</span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Harmony F., --- N.Y.S.3d ----, 2023 WL 305710, 2023 N.Y. Slip Op. 00259 (3d Dept.,2023) the Appellate Division found that petitioner clearly and convincingly established that the respondent had not sufficiently planned for the child’s future and had taken insufficient steps to correct the conditions that led to the child’s removal and, accordingly, that Family Court properly adjudicated the child as permanently neglected by the father. However, it agreed with respondent that Family Court improperly dispensed with the dispositional hearing under the circumstances presented. Family Ct Act § 625(a) expressly provides that, “[u]pon completion of [a] fact-finding hearing, [a] dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing”. Here, the court stated that there was no need for a further or separate dispositional hearing before rendering its determination that the respondent had permanently neglected the child and terminating his parental rights. However, there was no indication that the respondent affirmatively consented to dispense with the hearing, and, absent consent, the requirement of a dispositional hearing may not be circumvented. Even though the record provided adequate support for Family Court’s disposition, it remitted the matter for the court to conduct a dispositional hearing or to otherwise affirmatively gain the parties’ consent to dispense of the matter without one.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Petitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights, where among other things, the caseworker provided incorrect information to the court.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Syri’annah PP.--- N.Y.S.3d ----, 2023 WL 305694, 2023 N.Y. Slip Op. 00252 (3d Dept.,2023) the Appellate Division reversed an order which granted petitioner’s application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject children to be abandoned, and terminated respondent’s parental rights. It found that petitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights. The record demonstrated that respondent filed numerous motions to resume visitation, return his children, intervene in the neglect proceeding against the mother and terminate the children’s placement. During at least one appearance, respondent remarked that he would continue to “battle” for the return of his children, even prompting Family Court to candidly admit that respondent had been an active participant during the entire proceeding. Respondent had several visits with the children where he inquired if he could obtain their school records and asked what clothing or supplies they needed. The respondent made several inquiries to the caseworker and the mother, including during the delay caused by the pandemic. The record demonstrated that petitioner acted in a manner that has prevented or discouraged respondent’s ability to visit and communicate with the children. There were several troubling instances in the record where the caseworker or the coordinator cancelled respondent’s scheduled visitation with the children due to his late confirmation of the scheduled visit or arrival including one egregious incident where respondent was three minutes late to confirm an appointment for later that day. Respondent contended that his employment imposed inherent difficulties for him to confirm the appointments pursuant to the coordinator’s self-imposed deadline, including due to cell phone use restrictions at work and a lack of cellular service at the job site, but that the caseworker and the coordinator refused to consider his requests for additional time or accommodations to confirm the visits. The appellate AFC echoed this argument, adding that petitioner knew that respondent worked during the time he was required to confirm his visits but that the caseworker and the coordinator refused to accommodate his reasonable requests to extend the window he had to confirm the visits, which were scheduled to occur several hours later. Notwithstanding the fact that respondent cancelled one visit due to illness, attended five visits and had seven visits cancelled on him in the foregoing manner, the caseworker then reported to Family Court that respondent had only attended 4 out of 20 scheduled visits. Based on the incorrect information presented by the caseworker, who relied on text messages from the coordinator, who did not testify at the hearing, petitioner was successful in obtaining an order suspending respondent’s visitation with the children in December 2019, thereby making it more difficult for respondent to visit and communicate with the children.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">January 16, 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Where May 2022 custody order did not indicate that the 2021 order was being superseded, vacated or that it relinquished the grandmother’s right to pursue a custody appeal, the grandmother’s appeal from the 2021 custody order was not moot</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In the Matter of Linda UU.,v. Dana VV., 2023 WL 95177 (3d Dept.,2022) following a fact-finding hearing on all petitions, in 2021 Family Court found that the grandmother failed to establish the existence of extraordinary circumstances to supplant the mother’s right to custody of the child, and ordered the mother to have sole legal and residential custody of the child and awarded the grandmother visitation every other weekend. Family Court also determined that the grandmother failed to establish a family offense and failed to establish a willful violation of an order of protection or the custody order. While the grandmothers appeal was pending, Family Court issued a custody order in May 2022. The Appellate Division took judicial notice of the order. It disagreed with the mother that the 2022 order rendered the grandmother’s appeal moot. The 2022 order continued sole legal and residential custody of the child with the mother and modified the grandmother’s visitation. The May 2022 order did not indicate that the 2021 order was being superseded, vacated or that it relinquished the grandmother’s right to pursue a custody appeal. Accordingly, the grandmother’s appeal was not moot</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Fourth Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">A child in a custody proceeding is entitled to effective assistance of counsel which requires the AFC to take an active role in the proceeding. The child received ineffective assistance where the AFC made his client’s wish that there be a change in custody known to the court, but he did not “zealously advocate the child’s position.”</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Sloma v Saya, --- N.Y.S.3d ----, 210 A.D.3d 1494, 2022 WL 17075260, 2022 N.Y. Slip Op. 06587 (4th Dept.,2022) the Attorney for the Child (AFC) appealed from an order of the Family Court which determined at the conclusion of the father’s presentation of evidence at a trial that he failed to establish a change in circumstances and granted the mother’s motion to dismiss the father’s custody modification petition. The Appellate Division held that under the circumstances of this case, she had standing to appeal the order (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 71-74, 103 N.Y.S.3d 445 [2d Dept. 2019]) and that the child received ineffective assistance of counsel. It reversed the order and remitted the matter for a new trial. The Appellate Division pointed out that Section 7.2 of the Rules of the Chief Judge provides that, in proceedings such as an article 6 custody proceeding where the child is the subject and an AFC has been appointed pursuant to Family Court Act § 249, the AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]). “[I]n ascertaining the child’s position, the [AFC] must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” (22 NYCRR 7.2[d] [1]). “[I]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” (22 NYCRR 7.2 [d] [2]). Moreover, a child in an article 6 custody proceeding is entitled to effective assistance of counsel which requires the AFC to take an active role in the proceeding. Here, the AFC at trial made his client’s wish that there be a change in custody known to the court, but he did not “zealously advocate the child’s position.” He did not cross-examine the mother, the police officers, or the school social worker called by the father. It agreed with the AFC on appeal that the trial AFC’s cross-examination of the father was designed to elicit unfavorable testimony related to the father, thus undermining the child’s position. His questioning also seemed designed to show that there was no change in circumstances since the entry of the last order. Further, he submitted an email to the court in response to the mother’s motion to dismiss in which he stated his opinion that there had been no change in circumstances, which again went against his client’s wishes. While the AFC’s actions may have been the result of good intentions, he did not “zealously advocate the child’s position” (22 NYCRR 7.2 [d]), and the child was denied effective assistance of counsel.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Family Court</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="font-family: arial;">For a petition for an order and judgment of parentage to be granted when there is a case involving assisted reproduction and the parties are not married, the consent to the assisted reproduction must be in a record in such a manner as to indicate the mutual agreement of the intended parents to conceive and parent a child together</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In A.B., v. M.S., 2022 WL 18141596 (Fam. Ct., 2022), M.S. sought an Order and Judgment of Parentage (Assisted Reproduction) for a baby being carried by A.B., due to be born on or about May 28, 2022. The parties appeared before a Support Magistrate on April 22, 2022. On that date, Ms. S. was unrepresented, and Ms. B. appeared with her attorney. The Support Magistrate adjourned the matter and appointed counsel to Ms. S., and parties and counsel appeared on April 29, 2022. On that date, Ms. B. indicated that she was not consenting to an order of parentage, but that she was waiving her right to a hearing and consenting to the Support Magistrate deciding the matter based upon the papers that had been filed. The Support Magistrate entered an Order and Judgment of Parentage (Assisted Reproduction), holding that “upon the child’s birth, A.B. and M.S. will be the legal parents of the child who is expected to be born on May 31, 2022, and upon the birth of such child, they shall forthwith assume responsibility for the child’s maintenance and support”. A.B. objected to the entry of the Order and Judgment of Parentage (Assisted Reproduction), asserting the Support “Magistrate have conducted a fact-finding to fully flesh out the record.” The Objection was denied. Family Court found that Ms. B. made an informed decision to waive her right to a hearing. It observed that the “Child Parent Security Act”, set forth at Article 5-C of the Family Court, is intended to “legally establish a child’s relationship to his or her parents where the child is conceived through assisted reproduction” (Family Court Act Section 581-101). In order for a petition for an order and judgment of parentage to be granted when there is a case involving assisted reproduction and the parties are not married, “the consent to the assisted reproduction must be in a record in such a manner as to indicate the mutual agreement of the intended parents to conceive and parent a child together.” (Family Court Act Section 581-304(b)). Attached to the petition in this matter was an “Intrauterine Insemination Consent Form” where A.B. was listed as the “patient” and M.S. was listed as the “partner.” Both Ms. B. and Ms. S. placed their initials in several locations throughout the document in spaces calling for the initials of both the “patient” and the “partner.” Paragraph 7 of the form read as follows: “Responsibility of Offspring. I/We understand that, if a woman undergoes intrauterine insemination with the consent of her husband/partner, the husband/partner is treated in law as if he were the natural father of a child thereby conceived. I/We further agree a) That any child or children conceived or born as a result of the intrauterine insemination shall be my/our legitimate child and heirs of my/our body; and b) That such child or children conceived or both shall be considered in all respects including descent and distribution of my property, a child or children or my/our body(ies).” Both parties signed the form. The Support Magistrate made it clear to both parties on April 29, 2022, that he considered the language in the form as sufficient to establish the mutual agreement, intent and consent required to enter an order of judgment and parentage. The Support Magistrate stated unequivocally to Ms. B. that “If you waive that right to a hearing, based on the evidence presented to me, the documents presented to me, I will make an order of parentage.” By waiving her right to present evidence to the contrary, Ms. B. lost the ability to claim, after the fact, that the form failed to establish the requisite mutual consent and intent. The court refused to consider any factual arguments set forth in either the objection or the rebuttal as the time to make such arguments would have been at a hearing. However, the right to a hearing was waived.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">January 1, 2023</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce where the amendment proposed by the defendant was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Ferrigan v Ferrigan, --- N.Y.S.3d ----, 2022 WL 17660436, 2022 N.Y. Slip Op. 07058 (2d Dept.,2022) the parties were married in March 1996. Their judgment of divorced entered August 12, 2003 included a stipulation of settlement dated February 27, 2003 which was incorporated but not merged into the judgment. In August 2018, the defendant moved, inter alia, pursuant to CPLR 5019(a) to resettle the judgment of divorce on the ground that a provision in the judgment of divorce requiring him to provide health insurance for the parties’ children was inconsistent with the provision in the stipulation which provided that the plaintiff would provide health insurance for the children through her employer, but if she were unemployed, the defendant would do so through his employer. In an order dated April 1, 2019, the Supreme Court, inter alia, granted the defendant’s motion so as to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to provide health insurance for the parties’ children..</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division modified. It held that the defense of laches is not a basis to preclude the resettlement of the judgment of divorce as the plaintiff failed to show that she was prejudiced by the defendant’s delay in seeking to correct the error. Since the plaintiff failed to show a change in circumstances making it inequitable to grant the requested relief, t]he mere lapse of time without a showing of prejudice will not sustain a defense of laches. Resettlement of a judgment of divorce pursuant to CPLR 5019(a) is an appropriate remedy when the judgment does not accurately incorporate the terms of a stipulation of settlement. Although the judgment of divorce provided that the defendant was responsible for providing health insurance for the parties’ children, that provision was inconsistent with the terms of the stipulation which contained a provision which set forth that the plaintiff was responsible for providing health insurance for the parties’ children through her employer unless she became unemployed, and then the defendant would be responsible for providing health insurance for them through his employer. Supreme Court properly granted defendant’s motion to resettle the judgment of divorce to the extent that it was inconsistent with the stipulation. However, the Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce to the extent it sought to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to be solely responsible to provide health insurance for the parties’ children. The amendment proposed by the defendant failed to comport with the terms of the stipulation regarding the responsibility of the parties as to the health insurance for their children and was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Argument that his change in residence constituted a change in circumstances was unpreserved for appellate review “absent a motion to conform the pleadings to the proof” </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Anthony JJ, v Angelin JJ, --- N.Y.S.3d ----, 2022 WL 17835304 (3d Dept.,2022) Family Court dismissed the father’s custody modification petition, finding that the father had failed to demonstrate a change in circumstances warranting a best interests analysis. The Appellate Division affirmed. It held that the required change in circumstances may be found to exist where the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the children. Here, the record as a whole reflected a level of hostility and mutual distrust between the parties that demonstrated that the parties were incapable of working together in a cooperative fashion for the good of their children. However, as Family Court found, this hostility and failure to cooperate existed at the time of the prior order – serving as the basis, at least in part, for awarding the mother sole legal and primary physical custody of the children, and was therefore not a new development. The father’s argument that his change in residence constituted a change in circumstances was unpreserved for appellate review “absent a motion to conform the pleadings to the proof” before Family Court.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Condition in dispositional neglect order requiring Respondent to “maintain and provide documentation of legal income source(s) sufficient to support the child” did not violate her constitutional rights where Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Y. SS.,--- N.Y.S.3d ----, 2022 WL 17835259(3d Dept.,2022) after a hearing Family Court issued a decision finding the subject child to be a neglected child. A dispositional hearing was held, after which Family Court issued a dispositional order indicating that respondent has yet to achieve any insight that she engaged in any wrongful and neglectful behavior and ordering that the subject child remain in petitioner’s custody. The Appellate Division affirmed. It was established that respondent had a friend with whom she sometimes performed sexual services for money. At some point, in text messages, the friend began asking for things involving the subject child. Respondent testified that she “knew he wanted something with my daughter, but he wasn’t getting it.” On one occasion, respondent sent a naked photograph of the subject child to the friend. On another occasion, during a telephone call with the friend, respondent offered to perform oral sex on him while allowing him to look at the subject child naked while she slept. In text messages, respondent provided her address to the friend. The Appellate Division held that the willingness of respondent to involve the subject child in the performance of her sexual services for money put the subject child’s physical, emotional and mental health in imminent danger and we cannot say that “a reasonable and prudent parent [would] have so acted ... under the circumstances” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]). Although respondent testified that she took the photograph to send to the child’s doctor, Family Court found respondent’s testimony incredible. Family Court properly adjudicated the subject child to be neglected. The Appellate Division rejected Respondents argument that some of the conditions of Family Court’s dispositional order were unconstitutional. Respondent challenged the condition that she “maintain and provide documentation of legal income source(s) sufficient to support the child.” Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way. It was unclear how this condition, which encouraged her not to engage in prostitution as a means of income, violated her constitutional rights. Respondent also challenged the condition that she “acknowledge and demonstrate an understanding of her role in the neglect of the subject child ..., specifically how her prostitution and involvement of [the subject child] in that prostitution as sexual bait for a pedophile harmed [the subject child] and placed [her] at risk of further harm.” Contrary to respondent’s argument, this condition did not require her to admit to a finding of neglect, but rather that she recognize and understand how involving the subject child in her prostitution put the child at risk. A demonstration of understanding would decrease the chance of such behavior recurring. It did not find that this condition implicated respondent’s right to due process of law.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Fourth Department </span></p><p><span style="font-family: arial;">Although the burden of proof in a Neglect proceeding rests with the petitioner, once the petitioner has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Mea V, 210 A.D.3d 1408 (4th Dept, 2022) a neglect proceeding, the Appellate Division observed that a prima facie case of child abuse or neglect may be established by evidence that a child sustained an injury that would ordinarily not occur absent an act or omission of respondents and that respondents were the caretakers of the child at the time the injury occurred (Family Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40 [1993]). Although the burden of proof rests with the petitioner, once the petitioner “has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability. To rebut the presumption of parental culpability, the respondents may present evidence to (1) establish that during the time period when the child was injured, the child was not in respondents care; (2) demonstrate that the injury or condition could reasonably have occurred accidentally, without the acts or omission of respondents; or (3) counter the evidence that the child had the condition which was the basis for the finding of injury . In determining whether to rely on the presumption, the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretakers explanation in light of all the circumstances. The Appellate Division rejected respondents contention that, inter alia, they rebutted the presumption of parental culpability by providing a reasonable explanation for how the child’s injuries could have occurred without any act or omission on their part. Respondents originally claimed to the pediatrician and the Child Protective Services caseworker that the child’s injuries, which included 28 rib fractures and an injured lung, were accidental, but none of the medical evidence supported that claim. It concluded that Family Court properly rejected respondents’ subsequent claim at trial that the injuries were due to an underlying medical condition: the testimony of respondents’ expert witnesses was incredible and their conclusions were not consistent with the other evidence.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Family Court<span style="white-space: pre;"> </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Where, no other State could properly assume custody jurisdiction it was appropriate for New York to assume “vacuum jurisdiction” </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Olaide O v Oluseun O, 2022 WL 17727139 (unreported disposition) (Fam Ct, 2022) the child F. had resided in Nigeria with relatives for his entire life. During the custody hearing, Ms. O., who resided in New York testified that she and her husband had resided in Nigeria and that Mr. O. left Nigeria in 2016 with the intention that she and the children would follow as soon as possible. Based on testimony presented at the hearing, the Court found that Ms. O. never consented to the child’s permanent residence in Nigeria, that the relatives caring for the child in Nigeria were not persons acting as a parent and that it was the intention of both parties to bring the child to the United States. Therefore, the Court held that: “Here, no other State can properly assume jurisdiction. Nor can jurisdiction properly lie in Nigeria when both parents, who have a superior right to custody, reside in New York. Additionally, the Children who reside here in NY have rights to visit with their sibling that cannot be effectuated without the court assuming jurisdiction. Therefore, it was appropriate for New York to assume “vacuum jurisdiction” in this case. Nusrat C. v. Muhammed R., 67 AD3d 419 (1st Dept 2009) (finding that subject matter jurisdiction existed under both DRL § 70 (a) and DRL 76(1)(d) even though the child lived abroad, because both parents lived in the state and were personally before the court). Pursuant to DRL 76(1)(d), this Court has jurisdiction over the child F. O.”</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Domestic Relations Law § 240, subd.1 (a-3). Appointment of a child custody forensic evaluator on behalf of the court.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations Law § 240, subd.1 was amended to add subdivision (a-3) which provides that the court may appoint a child custody forensic evaluator on behalf of the court to evaluate and investigate the parties and a child or children in a proceeding involving child custody and visitation, provided the individual is a psychologist, social worker or psychiatrist who is licensed in the state of New York and has undergone the required biennial domestic violence-related training and has received within the last two years, a certification of completion for completing the training program pursuant to Executive Law § 575, subdivision 3 (O). No individual may be appointed by a court to conduct a forensic evaluation in a proceeding involving child custody and visitation pursuant to this paragraph unless the individual has received within the last two years, a certification of completion for completing the training program pursuant to Executive Law § 575 subdivision 3 (O). </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> Laws of 2022, Chapter 740, § 1 enacted on December 23, 2022 amended Domestic Relations Law § 240 Subdivision 1 by adding a new paragraph (a-3), effective as provided in § 4 on the 180th day after it shall have become a law (June 25, 2023). It provides as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> (a-3) Court ordered forensic evaluations involving child custody and</span></p><p><span style="font-family: arial;"> visitation. (1) The court may appoint a forensic evaluator on behalf of</span></p><p><span style="font-family: arial;"> the court to evaluate and investigate the parties and a child or chil-</span></p><p><span style="font-family: arial;"> dren in a proceeding involving child custody and visitation provided</span></p><p><span style="font-family: arial;"> that the child custody forensic evaluator is a psychologist, social</span></p><p><span style="font-family: arial;"> worker or psychiatrist who is licensed in the state of New York and has</span></p><p><span style="font-family: arial;"> received within the last two years, a certification of completion for</span></p><p><span style="font-family: arial;"> completing the training program pursuant to paragraph (o) of subdivision</span></p><p><span style="font-family: arial;"> three of section five hundred seventy-five of the executive law.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> (2) Notwithstanding any provision of law to the contrary, no individ-</span></p><p><span style="font-family: arial;"> ual shall be appointed by a court to conduct a forensic evaluation in a</span></p><p><span style="font-family: arial;"> proceeding involving child custody and visitation pursuant to this para-</span></p><p><span style="font-family: arial;"> graph unless such individual has received within the last two years, a</span></p><p><span style="font-family: arial;"> certification of completion for completing the training program pursuant</span></p><p><span style="font-family: arial;"> to paragraph (o) of subdivision three of section five hundred seventy-</span></p><p><span style="font-family: arial;"> five of the executive law.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> (3) A psychologist, social worker or psychiatrist authorized to</span></p><p><span style="font-family: arial;"> conduct court ordered child custody forensic evaluations pursuant to</span></p><p><span style="font-family: arial;"> this section shall notify the court in which such individual requests to</span></p><p><span style="font-family: arial;"> be considered for such court ordered evaluations. Any psychologist,</span></p><p><span style="font-family: arial;"> social worker or psychiatrist who no longer meets the requirements of</span></p><p><span style="font-family: arial;"> this section in regards to completing within the last two years the</span></p><p><span style="font-family: arial;"> training program pursuant to paragraph (o) of subdivision three of</span></p><p><span style="font-family: arial;"> section five hundred seventy-five of the executive law shall be obli-</span></p><p><span style="font-family: arial;"> gated to inform such courts within seventy-two hours of noncompliance so</span></p><p><span style="font-family: arial;"> as to be removed from consideration for court ordered evaluations.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> (4) Upon appointment, the court shall require such child custody</span></p><p><span style="font-family: arial;"> forensic evaluator to show proof of certification for completing within</span></p><p><span style="font-family: arial;"> the last two years the training program pursuant to paragraph (o) of</span></p><p><span style="font-family: arial;"> subdivision three of section five hundred seventy-five of the executive</span></p><p><span style="font-family: arial;"> law.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Laws of 2022, Ch 798, effective March 29, 2023 amended Domestic Relations Law, §11, Subd.1, 1-a, 2 and 3-a, 12, 13 and 13-b. One-day marriage officiants</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Domestic Relations Law was amended to allow individuals to be designated as one-day marriage officiants in order to solemnize marriages. The Executive Law was amended by adding Executive Law §110 that outlines the requirements that must be met to designate a lay person as a one-day marriage officiant.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations Law, §11, Subd.1, 1-a, 2 and 3-a was amended on December 28, 2022 by Laws of 2022, Ch 798, §1, effective March 29, 2023 to read as follows:</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> 1. A clergyman or minister of any religion, or by the senior leader,</span></p><p><span style="font-family: arial;"> or any of the other leaders, of The Society for Ethical Culture in the</span></p><p><span style="font-family: arial;"> city of New York, having its principal office in the borough of Manhat-</span></p><p><span style="font-family: arial;"> tan, or by the leader of The Brooklyn Society for Ethical Culture,</span></p><p><span style="font-family: arial;"> having its principal office in the borough of Brooklyn of the city of</span></p><p><span style="font-family: arial;"> New York, or of the Westchester Ethical Society, having its principal</span></p><p><span style="font-family: arial;"> office in Westchester county, or of the Ethical Culture Society of Long</span></p><p><span style="font-family: arial;"> Island, having its principal office in Nassau county, or of the River-</span></p><p><span style="font-family: arial;"> dale-Yonkers Ethical Society having its principal office in Bronx coun-</span></p><p><span style="font-family: arial;"> ty, or by the leader of any other Ethical Culture Society affiliated</span></p><p><span style="font-family: arial;"> with the American Ethical Union; provided that no clergyman or minister</span></p><p><span style="font-family: arial;"> as defined in section two of the religious corporations law, or Society</span></p><p><span style="font-family: arial;"> for Ethical Culture leader shall be required to solemnize any marriage</span></p><p><span style="font-family: arial;"> when acting in his or her capacity under this subdivision. [1-a.] A</span></p><p><span style="font-family: arial;"> refusal by a clergyman or minister as defined in section two of the</span></p><p><span style="font-family: arial;"> religious corporations law, or Society for Ethical Culture leader to</span></p><p><span style="font-family: arial;"> solemnize any marriage under this subdivision shall not create a civil</span></p><p><span style="font-family: arial;"> claim or cause of action or result in any state or local government</span></p><p><span style="font-family: arial;"> action to penalize, withhold benefits or discriminate against such cler-</span></p><p><span style="font-family: arial;"> gyman or minister[.]; or,</span></p><p><span style="font-family: arial;"> 2. The current or a former governor, a mayor of a village, a county</span></p><p><span style="font-family: arial;"> executive of a county, or a mayor, recorder, city magistrate, police</span></p><p><span style="font-family: arial;"> justice or police magistrate of a city, a former mayor or the city clerk</span></p><p><span style="font-family: arial;"> of a city of the first class of over one million inhabitants or any of</span></p><p><span style="font-family: arial;"> his or her deputies or not more than four regular clerks, designated by</span></p><p><span style="font-family: arial;"> him or her for such purpose as provided in section eleven-a of this</span></p><p><span style="font-family: arial;"> article, except that in cities which contain more than one hundred thou-</span></p><p><span style="font-family: arial;"> sand and less than one million inhabitants, a marriage shall be solem-</span></p><p><span style="font-family: arial;"> nized by the mayor, or police justice, and by no other officer of such</span></p><p><span style="font-family: arial;"> city, except as provided in subdivisions one and three of this</span></p><p><span style="font-family: arial;"> section[.]; or,</span></p><p><span style="font-family: arial;"> 3-a. A judge or peacemaker judge of any Indian tribal court, a chief,</span></p><p><span style="font-family: arial;"> a headman, or any member of any tribal council or other governing body</span></p><p><span style="font-family: arial;"> of any nation, tribe or band of Indians in this state duly designated by</span></p><p><span style="font-family: arial;"> such body for the purpose of officiating at marriages, or any other</span></p><p><span style="font-family: arial;"> persons duly designated by such body, in keeping with the culture and</span></p><p><span style="font-family: arial;"> traditions of any such nation, tribe or band of Indians in this state,</span></p><p><span style="font-family: arial;"> to officiate at marriages[.]; or,</span></p><p><span style="font-family: arial;"> 3-b. A one-day marriage officiant, as designated by the secretary of</span></p><p><span style="font-family: arial;"> state pursuant to section one hundred ten of the executive law; or,</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics is new; matter in brackets [ ] is old law to be omitted.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations Law, §12 was amended on December 28, 2022 by Laws of 2022, Ch 798, §2, effective March 29, 2023 to read as follows:</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> § 12. Marriage, how solemnized. No particular form or ceremony is</span></p><p><span style="font-family: arial;"> required when a marriage is solemnized as herein provided by a clergyman</span></p><p><span style="font-family: arial;"> [or], magistrate, or one-day marriage officiant as designated by the</span></p><p><span style="font-family: arial;"> secretary of state pursuant to section one hundred ten of the executive</span></p><p><span style="font-family: arial;"> law but the parties must solemnly declare in the presence of a clergyman</span></p><p><span style="font-family: arial;"> [or], magistrate, or one-day marriage officiant and the attending</span></p><p><span style="font-family: arial;"> witness or witnesses that they take each other as [husband and wife]</span></p><p><span style="font-family: arial;"> spouses. In every case, at least one witness beside the clergyman [or],</span></p><p><span style="font-family: arial;"> magistrate, or one-day marriage officiant must be present at the ceremo-</span></p><p><span style="font-family: arial;"> ny.</span></p><p><span style="font-family: arial;"> The preceding provisions of this chapter, so far as they relate to the</span></p><p><span style="font-family: arial;"> manner of solemnizing marriages, shall not affect marriages among the</span></p><p><span style="font-family: arial;"> people called friends or quakers; nor marriages among the people of any</span></p><p><span style="font-family: arial;"> other denominations having as such any particular mode of solemnizing</span></p><p><span style="font-family: arial;"> marriages; but such marriages must be solemnized in the manner hereto-</span></p><p><span style="font-family: arial;"> fore used and practiced in their respective societies or denominations,</span></p><p><span style="font-family: arial;"> and marriages so solemnized shall be as valid as if this article had not</span></p><p><span style="font-family: arial;"> been enacted.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics is new; matter in brackets [ ] is old law to be omitted.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations Law, §13 was amended on December 28, 2022 by Laws of 2022, Ch 798, §3, effective March 29, 2023 to read as follows:</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> § 13. Marriage licenses. It shall be necessary for all persons</span></p><p><span style="font-family: arial;"> intended to be married in New York state to obtain a marriage license</span></p><p><span style="font-family: arial;"> from a town or city clerk in New York state and to deliver said license,</span></p><p><span style="font-family: arial;"> within sixty days, to the clergyman [or], magistrate, or one-day</span></p><p><span style="font-family: arial;"> marriage officiant as designated by the secretary of state pursuant to</span></p><p><span style="font-family: arial;"> section one hundred ten of the executive law who is to officiate before</span></p><p><span style="font-family: arial;"> the marriage ceremony may be performed. In case of a marriage contracted</span></p><p><span style="font-family: arial;"> pursuant to subdivision four of section eleven of this chapter, such</span></p><p><span style="font-family: arial;"> license shall be delivered to the judge of the court of record before</span></p><p><span style="font-family: arial;"> whom the acknowledgment is to be taken. If either party to the marriage</span></p><p><span style="font-family: arial;"> resides upon an island located not less than twenty-five miles from the</span></p><p><span style="font-family: arial;"> office or residence of the town clerk of the town of which such island</span></p><p><span style="font-family: arial;"> is a part, and if such office or residence is not on such island such</span></p><p><span style="font-family: arial;"> license may be obtained from any justice of the peace residing on such</span></p><p><span style="font-family: arial;"> island, and such justice, in respect to powers and duties relating to</span></p><p><span style="font-family: arial;"> marriage licenses, shall be subject to the provisions of this article</span></p><p><span style="font-family: arial;"> governing town clerks and shall file all statements or affidavits</span></p><p><span style="font-family: arial;"> received by him while acting under the provisions of this section with</span></p><p><span style="font-family: arial;"> the town clerk of such town. No application for a marriage license shall</span></p><p><span style="font-family: arial;"> be denied on the ground that the parties are of the same, or a differ-</span></p><p><span style="font-family: arial;"> ent, sex.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics is new; matter in brackets [ ] is old law to be omitted.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations Law, §13-b was amended on December 28, 2022 by Laws of 2022, Ch 798, §4, effective March 29, 2023 to read as follows:</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> § 13-b. Time within which marriage may be solemnized. A marriage shall</span></p><p><span style="font-family: arial;"> not be solemnized within twenty-four hours after the issuance of the</span></p><p><span style="font-family: arial;"> marriage license, unless authorized by an order of a court of record as</span></p><p><span style="font-family: arial;"> hereinafter provided, nor shall it be solemnized after sixty days from</span></p><p><span style="font-family: arial;"> the date of the issuance of the marriage license unless authorized</span></p><p><span style="font-family: arial;"> pursuant to section three hundred fifty-four-d of the executive law.</span></p><p><span style="font-family: arial;"> Every license to marry hereafter issued by a town or city clerk, in</span></p><p><span style="font-family: arial;"> addition to other requirements specified by this chapter, must contain a</span></p><p><span style="font-family: arial;"> statement of the day and the hour the license is issued and the period</span></p><p><span style="font-family: arial;"> during which the marriage may be solemnized. It shall be the duty of the</span></p><p><span style="font-family: arial;"> clergyman [or], magistrate, or one-day marriage officiant, as designated</span></p><p><span style="font-family: arial;"> by the secretary of state pursuant to section one hundred ten of the</span></p><p><span style="font-family: arial;"> executive law, performing the marriage ceremony, or if the marriage is</span></p><p><span style="font-family: arial;"> solemnized by written contract, of the judge before whom the contract is</span></p><p><span style="font-family: arial;"> acknowledged, to annex to or endorse upon the marriage license the date</span></p><p><span style="font-family: arial;"> and hour the marriage is solemnized. A judge or justice of the supreme</span></p><p><span style="font-family: arial;"> court of this state or the county judge of the county in which either</span></p><p><span style="font-family: arial;"> party to be married resides, or the judge of the family court of such</span></p><p><span style="font-family: arial;"> county, if it shall appear from an examination of the license and any</span></p><p><span style="font-family: arial;"> other proofs submitted by the parties that one of the parties is in</span></p><p><span style="font-family: arial;"> danger of imminent death, or by reason of other emergency public inter-</span></p><p><span style="font-family: arial;"> est will be promoted thereby, or that such delay will work irreparable</span></p><p><span style="font-family: arial;"> injury or great hardship upon the contracting parties, or one of them,</span></p><p><span style="font-family: arial;"> may, make an order authorizing the immediate solemnization of the</span></p><p><span style="font-family: arial;"> marriage and upon filing such order with the clergyman [or], magistrate,</span></p><p><span style="font-family: arial;"> or one-day marriage officiant performing the marriage ceremony, or if</span></p><p><span style="font-family: arial;"> the marriage is to be solemnized by written contract, with the judge</span></p><p><span style="font-family: arial;"> before whom the contract is acknowledged, such clergyman [or], magis-</span></p><p><span style="font-family: arial;"> trate or one-day marriage officiant may solemnize such marriage, or such</span></p><p><span style="font-family: arial;"> judge may take such acknowledgment as the case may be, without waiting</span></p><p><span style="font-family: arial;"> for such three day period and twenty-four hour period to elapse. The</span></p><p><span style="font-family: arial;"> clergyman, magistrate [or], judge, or one-day marriage officiant, as</span></p><p><span style="font-family: arial;"> designated by the secretary of state pursuant to section one hundred ten</span></p><p><span style="font-family: arial;"> of the executive law, must file such order with the town or city clerk</span></p><p><span style="font-family: arial;"> who issued the license within five days after the marriage is solem-</span></p><p><span style="font-family: arial;"> nized. Such town or city clerk must record and index the order in the</span></p><p><span style="font-family: arial;"> book required to be kept by him or her for recording affidavits, state-</span></p><p><span style="font-family: arial;"> ments, consents and licenses, and when so recorded the order shall</span></p><p><span style="font-family: arial;"> become a public record and available in any prosecution under this</span></p><p><span style="font-family: arial;"> section. A person who shall solemnize a marriage in violation of this</span></p><p><span style="font-family: arial;"> section shall be guilty of a misdemeanor and upon conviction thereof</span></p><p><span style="font-family: arial;"> shall be punished by a fine of fifty dollars for each offense, and in</span></p><p><span style="font-family: arial;"> addition thereto, his or her right to solemnize a marriage shall be</span></p><p><span style="font-family: arial;"> suspended for ninety days.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics is new; matter in brackets [ ] is old law to be omitted.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Executive Law was amended on December 28, 2022 by Laws of 2022, Ch 798, §5, effective March 29, 2023 to add a new section 110 to read as follows:</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> § 110. Designation of one-day marriage officiant. The secretary, or</span></p><p><span style="font-family: arial;"> his or her designee, shall issue one-day marriage officiant designations</span></p><p><span style="font-family: arial;"> to laypersons over the age of eighteen regardless of state residence who</span></p><p><span style="font-family: arial;"> intend to perform a marriage solemnization ceremony within the state.</span></p><p><span style="font-family: arial;"> Such designations shall only be issued after an applicant remits a</span></p><p><span style="font-family: arial;"> completed application form and fee, both to be determined by the secre-</span></p><p><span style="font-family: arial;"> tary. The application form shall require the following information and</span></p><p><span style="font-family: arial;"> be accompanied by legal proof of identification. From the applicant</span></p><p><span style="font-family: arial;"> requesting designation: applicant name, date of birth, legal address,</span></p><p><span style="font-family: arial;"> email address and telephone number. The application form shall also</span></p><p><span style="font-family: arial;"> require the names, addresses and birth dates of the parties to be</span></p><p><span style="font-family: arial;"> married as they appear on the application for a marriage license issued</span></p><p><span style="font-family: arial;"> by a town or city clerk in the state, the name of the city, town or</span></p><p><span style="font-family: arial;"> village in which such solemnization will be performed and the exact date</span></p><p><span style="font-family: arial;"> of the solemnization. The application and fee must be received by the</span></p><p><span style="font-family: arial;"> department at least thirty days before the date of the ceremony. The</span></p><p><span style="font-family: arial;"> department shall notify the applicant of approval of such designation no</span></p><p><span style="font-family: arial;"> later than seven days prior to the date of the marriage ceremony stated</span></p><p><span style="font-family: arial;"> on the application. Such designations shall only be valid for the cere-</span></p><p><span style="font-family: arial;"> mony stated on the application and shall expire upon completion of such</span></p><p><span style="font-family: arial;"> solemnization.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Matter in italics is new; matter in brackets [ ] is old law to be omitted.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations Law and the Social Services Law Amendments</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Domestic Relations Law and the Social Services Law were amended effective December30, 2022 to give full parental rights in adoption, surrender, and termination of parental rights proceedings to fathers of children in foster care who have been adjudicated or are in the process of being adjudicated a parent, have executed an unrevoked acknowledgement of parentage, or have filed an unrevoked notice of intent to claim parentage. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Adoption</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The requirement of notice of adoption proceedings to fathers of children in foster care who do not have full parental rights has been rescinded and relevant provisions of the Social Services Law and the Domestic Relations Law have been modified to make them consistent with the modifications. </span></span></p><p><span style="font-family: arial;"> <span style="white-space: pre;"> </span> </span></p><p><span style="font-family: arial;">In New York an adoption may take place in either of two ways. An adoption may be by means of a private transaction between individuals, which is referred to as a “private-placement” adoption. In a private placement adoption, the biological parents have voluntarily given up their parental rights and have placed the child with the agency for adoption. The adoption agency will place the child with prospective adoptive parents. </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In New York an adoption may also be arranged between an agency set up for the care, custody, and placement of children and prospective adoptive parents, which is referred to as an “authorized agency adoption.” “Authorized agency adoptions are adoptions of children who are already in the care of the state through a foster care agency or a private adoption agency. In a foster care adoption, when a child is in the care of the state and living with foster parents, the agency will usually file a petition to terminate the parental rights of the child's parents so that the child can be adopted. In authorized-agency adoptions, all preliminary procedures up to the petition for adoption are governed by the Social Services Law. Any adoption that is not an agency adoption is a private placement adoption</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Consent to an adoption in an agency adoption,</span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In an agency adoption, the foster care agency or the private adoption agency consents to the adoption of the child in its care and guardianship. If the child is 14 years old or older, the child must also consent to the adoption. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>Under the Domestic Relations Law, in cases of " agency adoptions, only certain fathers have the right to consent to or prevent the adoption of their child. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The only fathers who have "consent" rights if the child was placed for adoption at over six months of age are:</span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span> (1) those fathers who were married to the child's mother at the time of the child's birth; </span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>(2) those fathers of a child born out of wedlock who have maintained substantial and continuous or repeated contact with the child as manifested by: </span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>(i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either </span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>(ii) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or </span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>(iii) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child. </span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>(3) Those fathers of a child born out-of-wedlock, who openly lived with the child for a period of 6 months within the 1 year period immediately preceding the placement of the child for adoption and who during that period openly held himself out to be the father of the child. </span></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>Laws of 2022, Ch 798 broadens the definition of "consent" fathers in cases of agency adoptions, so that fathers who have been legally adjudicated to be the parent of the child or have timely executed a formal acknowledgment of parentage have full parental rights. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>This law does not affect "private-placement" adoptions. It applies only to adoptions that occur after a child has been involuntarily separated from their family by the state, and the state seeks to sever the parent-child relationship for an unmarried father. The state will still be able to terminate such an unmarried father's parental rights in appropriate cases on the grounds of abandonment, permanent neglect, mental illness, intellectual disability, and severe and repeated abuse, just as it would in the case of a mother or married father who failed to meet those obligations. The local child protective agencies will similarly still have the ability to seek child support from the parents of children in foster care, if they choose to do so. This legislation simply alters the potential consequence of an unmarried father's failure to comply with his obligation to pay support to a third party agency, so that his continued relation-ship to his child does not hinge on such payment alone. </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"> </span></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>Domestic Relations Law, §111, subd. 1 (d), (e), and (f) were amended by Laws of 2022, Ch 828, §1, effective December 30, 2022 to read as follows:</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> (d) Of any person or authorized agency having lawful custody or guar-</span></p><p><span style="font-family: arial;"> 7 dianship of the adoptive child;</span></p><p><span style="font-family: arial;"> 8 (e) In the case of the adoption of a child transferred to the custody</span></p><p><span style="font-family: arial;"> 9 and guardianship of an authorized agency, foster parent, or relative</span></p><p><span style="font-family: arial;"> 10 pursuant to section three hundred eighty-four-b of the social services</span></p><p><span style="font-family: arial;"> 11 law or a child transferred to the custody and guardianship of an author-</span></p><p><span style="font-family: arial;"> 12 ized agency pursuant to section three hundred eighty-three-c of the</span></p><p><span style="font-family: arial;"> 13 social services law:</span></p><p><span style="font-family: arial;"> 14 (i) Of any person adjudicated by a court of this state or a court of</span></p><p><span style="font-family: arial;"> 15 any other state or territory of the United States to be the father of</span></p><p><span style="font-family: arial;"> 16 the child prior to the filing of a petition to terminate parental rights</span></p><p><span style="font-family: arial;"> 17 to the child pursuant to section three hundred eighty-four-b of the</span></p><p><span style="font-family: arial;"> 18 social services law, an application to execute a judicial surrender of</span></p><p><span style="font-family: arial;"> 19 rights to the child pursuant to subdivision three of section three</span></p><p><span style="font-family: arial;"> 20 hundred eighty-three-c of the social services law, or an application for</span></p><p><span style="font-family: arial;"> 21 approval of an extra-judicial surrender pursuant to subdivision four of</span></p><p><span style="font-family: arial;"> 22 section three hundred eighty-three-c of the social services law;</span></p><p><span style="font-family: arial;"> 1 (ii) Of any person who filed a petition in a court in this state seek-</span></p><p><span style="font-family: arial;"> 2 ing to be adjudicated the father of the child prior to the filing of a</span></p><p><span style="font-family: arial;"> 3 petition to terminate parental rights to the child pursuant to section</span></p><p><span style="font-family: arial;"> 4 three hundred eighty-four-b of the social services law, an application</span></p><p><span style="font-family: arial;"> 5 to execute a judicial surrender of rights to the child pursuant to</span></p><p><span style="font-family: arial;"> 6 subdivision three of section three hundred eighty-three-c of the social</span></p><p><span style="font-family: arial;"> 7 services law, or an application for approval of an extra-judicial</span></p><p><span style="font-family: arial;"> 8 surrender pursuant to subdivision four of section three hundred eighty-</span></p><p><span style="font-family: arial;"> 9 three-c of the social services law, provided that the parentage petition</span></p><p><span style="font-family: arial;"> 10 has been resolved in the petitioner's favor or remains pending at the</span></p><p><span style="font-family: arial;"> 11 conclusion of the proceedings pursuant to section three hundred eighty-</span></p><p><span style="font-family: arial;"> 12 four-b, three hundred eighty-three-c, or three hundred eighty-four of</span></p><p><span style="font-family: arial;"> 13 the social services law;</span></p><p><span style="font-family: arial;"> 14 (iii) Of any person who has executed an acknowledgment of parentage</span></p><p><span style="font-family: arial;"> 15 pursuant to section one hundred eleven-k of the social services law,</span></p><p><span style="font-family: arial;"> 16 section five hundred sixteen-a of the family court act, or section</span></p><p><span style="font-family: arial;"> 17 forty-one hundred thirty-five-b of the public health law prior to the</span></p><p><span style="font-family: arial;"> 18 filing of a petition to terminate parental rights to the child pursuant</span></p><p><span style="font-family: arial;"> 19 to section three hundred eighty-four-b of the social services law, an</span></p><p><span style="font-family: arial;"> 20 application to execute a judicial surrender of rights to the child</span></p><p><span style="font-family: arial;"> 21 pursuant to subdivision three of section three hundred eighty-three-c of</span></p><p><span style="font-family: arial;"> 22 the social services law, or an application for approval of an extra-ju-</span></p><p><span style="font-family: arial;"> 23 dicial surrender pursuant to subdivision four of section three hundred</span></p><p><span style="font-family: arial;"> 24 eighty-three-c of the social services law, provided that such acknowl-</span></p><p><span style="font-family: arial;"> 25 edgement has not been vacated;</span></p><p><span style="font-family: arial;"> 26 (iv) Of any person who filed an unrevoked notice of intent to claim</span></p><p><span style="font-family: arial;"> 27 parentage of the child pursuant to section three hundred seventy-two-c</span></p><p><span style="font-family: arial;"> 28 of the social services law prior to the filing of a petition to termi-</span></p><p><span style="font-family: arial;"> 29 nate parental rights to the child pursuant to section three hundred</span></p><p><span style="font-family: arial;"> 30 eighty-four-b of the social services law, an application to execute a</span></p><p><span style="font-family: arial;"> 31 judicial surrender of rights to the child pursuant to subdivision three</span></p><p><span style="font-family: arial;"> 32 of section three hundred eighty-three-c of the social services law, or</span></p><p><span style="font-family: arial;"> 33 an application for approval of an extra-judicial surrender pursuant to</span></p><p><span style="font-family: arial;"> 34 subdivision four of section three hundred eighty-three-c of the social</span></p><p><span style="font-family: arial;"> 35 services law;</span></p><p><span style="font-family: arial;"> 36 (f) In any other adoption proceeding:</span></p><p><span style="font-family: arial;"> 37 (i) Of the father, whether adult or infant, of a child born out-of-</span></p><p><span style="font-family: arial;"> 38 wedlock and placed with the adoptive parents more than six months after</span></p><p><span style="font-family: arial;"> 39 birth, but only if such father shall have maintained substantial and</span></p><p><span style="font-family: arial;"> 40 continuous or repeated contact with the child as manifested by: [(i)]</span></p><p><span style="font-family: arial;"> 41 (A) the payment by the father toward the support of the child of a fair</span></p><p><span style="font-family: arial;"> 42 and reasonable sum, according to the father's means, and either [(ii)]</span></p><p><span style="font-family: arial;"> 43 (B) the father's visiting the child at least monthly when physically and</span></p><p><span style="font-family: arial;"> 44 financially able to do so and not prevented from doing so by the person</span></p><p><span style="font-family: arial;"> 45 or authorized agency having lawful custody of the child, or [(iii)] (C)</span></p><p><span style="font-family: arial;"> 46 the father's regular communication with the child or with the person or</span></p><p><span style="font-family: arial;"> 47 agency having the care or custody of the child, when physically and</span></p><p><span style="font-family: arial;"> 48 financially unable to visit the child or prevented from doing so by the</span></p><p><span style="font-family: arial;"> 49 person or authorized agency having lawful custody of the child. The</span></p><p><span style="font-family: arial;"> 50 subjective intent of the father, whether expressed or otherwise, unsup-</span></p><p><span style="font-family: arial;"> 51 ported by evidence of acts specified in this paragraph manifesting such</span></p><p><span style="font-family: arial;"> 52 intent, shall not preclude a determination that the father failed to</span></p><p><span style="font-family: arial;"> 53 maintain substantial and continuous or repeated contact with the child.</span></p><p><span style="font-family: arial;"> 54 In making such a determination, the court shall not require a showing of</span></p><p><span style="font-family: arial;"> 55 diligent efforts by any person or agency to encourage the father to</span></p><p><span style="font-family: arial;"> 56 perform the acts specified in this paragraph. A father, whether adult or</span></p><p><span style="font-family: arial;"> 1 infant, of a child born out-of-wedlock, who openly lived with the child</span></p><p><span style="font-family: arial;"> 2 for a period of six months within the one year period immediately</span></p><p><span style="font-family: arial;"> 3 preceding the placement of the child for adoption and who during such</span></p><p><span style="font-family: arial;"> 4 period openly held himself out to be the father of such child shall be</span></p><p><span style="font-family: arial;"> 5 deemed to have maintained substantial and continuous contact with the</span></p><p><span style="font-family: arial;"> 6 child for the purpose of this subdivision[.];</span></p><p><span style="font-family: arial;"> 7 [(e)] (ii) Of the father, whether adult or infant, of a child born</span></p><p><span style="font-family: arial;"> 8 out-of-wedlock who is under the age of six months at the time he is</span></p><p><span style="font-family: arial;"> 9 placed for adoption, but only if: [(i)] (A) such father openly lived</span></p><p><span style="font-family: arial;"> 10 with the child or the child's mother for a continuous period of six</span></p><p><span style="font-family: arial;"> 11 months immediately preceding the placement of the child for adoption;</span></p><p><span style="font-family: arial;"> 12 and [(ii)] (B) such father openly held himself out to be the father of</span></p><p><span style="font-family: arial;"> 13 such child during such period; and [(iii)] (C) such father paid a fair</span></p><p><span style="font-family: arial;"> 14 and reasonable sum, in accordance with his means, for the medical,</span></p><p><span style="font-family: arial;"> 15 hospital and nursing expenses incurred in connection with the mother's</span></p><p><span style="font-family: arial;"> 16 pregnancy or with the birth of the child.</span></p><p><span style="font-family: arial;"> 17 [(f) Of any person or authorized agency having lawful custody of the</span></p><p><span style="font-family: arial;"> 18 adoptive child.]</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Domestic Relations Law, §111-a, subd. 1 was amended by Laws of 2022, Ch 828, §2, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> 22 1. Notwithstanding any inconsistent provisions of this or any other</span></p><p><span style="font-family: arial;"> 23 law, and in addition to the notice requirements of any law pertaining to</span></p><p><span style="font-family: arial;"> 24 persons other than those specified in subdivision two of this section,</span></p><p><span style="font-family: arial;"> 25 notice as provided herein shall be given to the persons specified in</span></p><p><span style="font-family: arial;"> 26 subdivision two of this section of any adoption proceeding initiated</span></p><p><span style="font-family: arial;"> 27 pursuant to this article or of any proceeding initiated pursuant to</span></p><p><span style="font-family: arial;"> 28 section one hundred fifteen-b of this article relating to the revocation</span></p><p><span style="font-family: arial;"> 29 of an adoption consent, when such proceeding involves a child born out-</span></p><p><span style="font-family: arial;"> 30 of-wedlock provided, however, that such notice shall not be required to</span></p><p><span style="font-family: arial;"> 31 be given [to any person who previously has been given notice of any</span></p><p><span style="font-family: arial;"> 32 proceeding involving the child, pursuant to section three hundred eight-</span></p><p><span style="font-family: arial;"> 33 y-four-c of the social services law, and provided further that notice in</span></p><p><span style="font-family: arial;"> 34 an adoption proceeding, pursuant to this section shall not be required</span></p><p><span style="font-family: arial;"> 35 to be given]: (a) in the case of the adoption of a child transferred to</span></p><p><span style="font-family: arial;"> 36 the custody and guardianship of an authorized agency, foster parent, or</span></p><p><span style="font-family: arial;"> 37 relative pursuant to section three hundred eighty-four-b of the social</span></p><p><span style="font-family: arial;"> 38 services law or a child transferred to the custody and guardianship of</span></p><p><span style="font-family: arial;"> 39 an authorized agency pursuant to section three hundred eighty-three-c of</span></p><p><span style="font-family: arial;"> 40 the social services law; or (b) to any person who has previously</span></p><p><span style="font-family: arial;"> 41 received notice of any proceeding pursuant to section one hundred</span></p><p><span style="font-family: arial;"> 42 fifteen-b of this article. In addition to such other requirements as may</span></p><p><span style="font-family: arial;"> 43 be applicable to the petition in any proceeding in which notice must be</span></p><p><span style="font-family: arial;"> 44 given pursuant to this section, the petition shall set forth the names</span></p><p><span style="font-family: arial;"> 45 and last known addresses of all persons required to be given notice of</span></p><p><span style="font-family: arial;"> 46 the proceeding, pursuant to this section, and there shall be shown by</span></p><p><span style="font-family: arial;"> 47 the petition or by affidavit or other proof satisfactory to the court</span></p><p><span style="font-family: arial;"> 48 that there are no persons other than those set forth in the petition who</span></p><p><span style="font-family: arial;"> 49 are entitled to notice. For the purpose of determining persons entitled</span></p><p><span style="font-family: arial;"> 50 to notice of adoption proceedings initiated pursuant to this article,</span></p><p><span style="font-family: arial;"> 51 persons specified in subdivision two of this section shall not include</span></p><p><span style="font-family: arial;"> 52 any person who has been convicted of one or more of the following sexual</span></p><p><span style="font-family: arial;"> 53 offenses in this state or convicted of one or more offenses in another</span></p><p><span style="font-family: arial;"> 54 jurisdiction which, if committed in this state, would constitute one or</span></p><p><span style="font-family: arial;"> 55 more of the following offenses, when the child who is the subject of the</span></p><p><span style="font-family: arial;"> 56 proceeding was conceived as a result: (A) rape in first or second</span></p><p><span style="font-family: arial;"> 1 degree; (B) course of sexual conduct against a child in the first</span></p><p><span style="font-family: arial;"> 2 degree; (C) predatory sexual assault; or (D) predatory sexual assault</span></p><p><span style="font-family: arial;"> 3 against a child.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §383-c, subd. 4, (b) was amended by Laws of 2022, Ch 828, §3, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> 7 (b) Before a judge or surrogate approves a judicial surrender, the</span></p><p><span style="font-family: arial;"> 8 judge or surrogate [shall] may order that notice of the surrender</span></p><p><span style="font-family: arial;"> 9 proceeding be given to [persons identified in subdivision two of section</span></p><p><span style="font-family: arial;"> 10 three hundred eighty-four-c of this title and to] such [other] persons</span></p><p><span style="font-family: arial;"> 11 as the judge or surrogate may, in his or her discretion, prescribe. At</span></p><p><span style="font-family: arial;"> 12 the time that a parent appears before a judge or surrogate to execute</span></p><p><span style="font-family: arial;"> 13 and acknowledge a surrender, the judge or surrogate shall inform such</span></p><p><span style="font-family: arial;"> 14 parent of the right to be represented by legal counsel of the parent's</span></p><p><span style="font-family: arial;"> 15 own choosing and of the right to obtain supportive counseling and of any</span></p><p><span style="font-family: arial;"> 16 right to have counsel assigned pursuant to section two hundred sixty-two</span></p><p><span style="font-family: arial;"> 17 of the family court act, section four hundred seven of the surrogate's</span></p><p><span style="font-family: arial;"> 18 court procedure act, or section thirty-five of the judiciary law. The</span></p><p><span style="font-family: arial;"> 19 judge or surrogate also shall inform the parent of the consequences of</span></p><p><span style="font-family: arial;"> 20 such surrender, including informing such parent that the parent is</span></p><p><span style="font-family: arial;"> 21 giving up all rights to have custody, visit with, speak with, write to</span></p><p><span style="font-family: arial;"> 22 or learn about the child, forever, unless the parties have agreed to</span></p><p><span style="font-family: arial;"> 23 different terms pursuant to subdivision two of this section, or, if the</span></p><p><span style="font-family: arial;"> 24 parent registers with the adoption information register, as specified in</span></p><p><span style="font-family: arial;"> 25 section forty-one hundred thirty-eight-d of the public health law, that</span></p><p><span style="font-family: arial;"> 26 the parent may be contacted at any time after the child reaches the age</span></p><p><span style="font-family: arial;"> 27 of eighteen years, but only if both the parent and the adult child so</span></p><p><span style="font-family: arial;"> 28 choose. The court shall determine whether the terms and conditions</span></p><p><span style="font-family: arial;"> 29 agreed to by the parties pursuant to subdivision two of this section are</span></p><p><span style="font-family: arial;"> 30 in the child's best interests before approving the surrender. The judge</span></p><p><span style="font-family: arial;"> 31 or surrogate shall inform the parent that where a surrender containing</span></p><p><span style="font-family: arial;"> 32 conditions has been executed, the parent is obligated to provide the</span></p><p><span style="font-family: arial;"> 33 authorized agency with a designated mailing address, as well as any</span></p><p><span style="font-family: arial;"> 34 subsequent changes in such address, at which the parent may receive</span></p><p><span style="font-family: arial;"> 35 notices regarding any substantial failure of a material condition,</span></p><p><span style="font-family: arial;"> 36 unless such notification is expressly waived by a statement written by</span></p><p><span style="font-family: arial;"> 37 the parent and appended to or included in such instrument. The judge or</span></p><p><span style="font-family: arial;"> 38 surrogate also shall inform the parent that the surrender shall become</span></p><p><span style="font-family: arial;"> 39 final and irrevocable immediately upon its execution and acknowledgment.</span></p><p><span style="font-family: arial;"> 40 The judge or surrogate shall give the parent a copy of such surrender</span></p><p><span style="font-family: arial;"> 41 upon the execution thereof.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §383-c, subd. 4 (d) was amended by Laws of 2022, Ch 828, §4, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> 45 (d) Before a judge or surrogate approves an extra-judicial surrender,</span></p><p><span style="font-family: arial;"> 46 the judge or surrogate shall order notice to be given to the person who</span></p><p><span style="font-family: arial;"> 47 executed the surrender[, to persons identified in subdivision two of</span></p><p><span style="font-family: arial;"> 48 section three hundred eighty-four-c of this title] and to such other</span></p><p><span style="font-family: arial;"> 49 persons as the judge or surrogate may, in his or her discretion,</span></p><p><span style="font-family: arial;"> 50 prescribe. [The petition shall set forth the names and last known</span></p><p><span style="font-family: arial;"> 51 addresses of all persons required to be given notice of the proceeding,</span></p><p><span style="font-family: arial;"> 52 pursuant to section three hundred eighty-four-c, and there shall be</span></p><p><span style="font-family: arial;"> 53 shown by the petition or by affidavit or other proof satisfactory to the</span></p><p><span style="font-family: arial;"> 54 court that there are no persons other than those set forth in the peti-</span></p><p><span style="font-family: arial;"> 55 tion who are entitled to notice pursuant to such section.] No person who</span></p><p><span style="font-family: arial;"> 56 has received such notice and been afforded an opportunity to be heard</span></p><p><span style="font-family: arial;"> 1 may challenge the validity of a surrender approved pursuant to this</span></p><p><span style="font-family: arial;"> 2 subdivision in any other proceeding. Nothing in this section shall be</span></p><p><span style="font-family: arial;"> 3 deemed to dispense with the consent to adopt if otherwise required of</span></p><p><span style="font-family: arial;"> 4 any person who has not executed the surrender.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §383-c, subd. 5 (h) was amended by Laws of 2022, Ch 828, §5, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> 9 (h) Upon execution of a surrender instrument, the parent executing the</span></p><p><span style="font-family: arial;"> 10 surrender shall provide information to the extent known regarding the</span></p><p><span style="font-family: arial;"> 11 other parent, any person to whom the surrendering parent had been</span></p><p><span style="font-family: arial;"> 12 married at the time of the conception or birth of the child and any</span></p><p><span style="font-family: arial;"> 13 other person who would be entitled to [notice of a proceeding to termi-</span></p><p><span style="font-family: arial;"> 14 nate parental rights pursuant to section three hundred eighty-four-c of</span></p><p><span style="font-family: arial;"> 15 this title] consent to the adoption of the child pursuant to subdivision</span></p><p><span style="font-family: arial;"> 16 one of section one hundred eleven of the domestic relations law. Such</span></p><p><span style="font-family: arial;"> 17 information shall include, but not be limited to, such parent's or</span></p><p><span style="font-family: arial;"> 18 person's name, last-known address, social security number, employer's</span></p><p><span style="font-family: arial;"> 19 address and any other identifying information. Any information provided</span></p><p><span style="font-family: arial;"> 20 pursuant to this paragraph shall be recorded in the uniform case record</span></p><p><span style="font-family: arial;"> 21 maintained pursuant to section four hundred nine-f of this article;</span></p><p><span style="font-family: arial;"> 22 provided, however, that the failure to provide such information shall</span></p><p><span style="font-family: arial;"> 23 not invalidate the surrender.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §384, subd. 8 was amended by Laws of 2022, Ch 828, §6, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> 27 8. Upon execution of a surrender instrument, the parent executing the</span></p><p><span style="font-family: arial;"> 28 surrender shall provide information to the extent known regarding the</span></p><p><span style="font-family: arial;"> 29 other parent, any person to whom the surrendering parent had been</span></p><p><span style="font-family: arial;"> 30 married at the time of the conception or birth of the child and any</span></p><p><span style="font-family: arial;"> 31 other person [who would be entitled to notice of a proceeding to termi-</span></p><p><span style="font-family: arial;"> 32 nate parental rights pursuant to] listed in subdivision two of section</span></p><p><span style="font-family: arial;"> 33 three hundred eighty-four-c of this title. Such information shall</span></p><p><span style="font-family: arial;"> 34 include, but not be limited to, such parent's or person's name, last-</span></p><p><span style="font-family: arial;"> 35 known address, social security number, employer's address and any other</span></p><p><span style="font-family: arial;"> 36 identifying information. Any information provided pursuant to this</span></p><p><span style="font-family: arial;"> 37 subdivision shall be recorded in the uniform case record maintained</span></p><p><span style="font-family: arial;"> 38 pursuant to section four hundred nine-f of this article; provided,</span></p><p><span style="font-family: arial;"> 39 however, that the failure to provide such information shall not invali-</span></p><p><span style="font-family: arial;"> 40 date the surrender.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §384-a, subd. 1-b was amended by Laws of 2022, Ch 828, §7, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> 44 1-b. Upon accepting the transfer of care and custody of a child from</span></p><p><span style="font-family: arial;"> 45 the parent, guardian or other person to whom care of the child has been</span></p><p><span style="font-family: arial;"> 46 entrusted, a local social services official shall obtain information to</span></p><p><span style="font-family: arial;"> 47 the extent known from such person regarding the other parent, any person</span></p><p><span style="font-family: arial;"> 48 to whom the parent transferring care and custody had been married at the</span></p><p><span style="font-family: arial;"> 49 time of the conception or birth of the child, any person who would be</span></p><p><span style="font-family: arial;"> 50 entitled to consent to the adoption of the child pursuant to subdivision</span></p><p><span style="font-family: arial;"> 51 one of section one hundred eleven of the domestic relations law, and any</span></p><p><span style="font-family: arial;"> 52 other person [who would be entitled to notice of a proceeding to termi-</span></p><p><span style="font-family: arial;"> 53 nate parental rights pursuant to] listed in subdivision two of section</span></p><p><span style="font-family: arial;"> 54 three hundred eighty-four-c of this title. Such information shall</span></p><p><span style="font-family: arial;"> 55 include, but not be limited to, such parent's or person's name, last-</span></p><p><span style="font-family: arial;"> 56 known address, social security number, employer's address and any other</span></p><p><span style="font-family: arial;"> 1 identifying information. Any information provided pursuant to this</span></p><p><span style="font-family: arial;"> 2 subdivision shall be recorded in the uniform case record maintained</span></p><p><span style="font-family: arial;"> 3 pursuant to section four hundred nine-f of this article; provided,</span></p><p><span style="font-family: arial;"> 4 however, that the failure to provide such information shall not invali-</span></p><p><span style="font-family: arial;"> 5 date the transfer of care and custody.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §384-b, subd. 3 was amended by Laws of 2022, Ch 828, §8, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> 9 (e) A proceeding under this section is originated by a petition on</span></p><p><span style="font-family: arial;"> 10 notice served upon the child's parent or parents, the attorney for the</span></p><p><span style="font-family: arial;"> 11 child's parent or parents and upon such other persons as the court may</span></p><p><span style="font-family: arial;"> 12 in its discretion prescribe. Such notice shall inform the parents and</span></p><p><span style="font-family: arial;"> 13 such other persons that the proceeding may result in an order freeing</span></p><p><span style="font-family: arial;"> 14 the child for adoption without the consent of or notice to the parents</span></p><p><span style="font-family: arial;"> 15 or such other persons. Such notice also shall inform the parents and</span></p><p><span style="font-family: arial;"> 16 such other persons of their right to the assistance of counsel, includ-</span></p><p><span style="font-family: arial;"> 17 ing any right they may have to have counsel assigned by the court in any</span></p><p><span style="font-family: arial;"> 18 case where they are financially unable to obtain counsel. [The petition</span></p><p><span style="font-family: arial;"> 19 shall set forth the names and last known addresses of all persons</span></p><p><span style="font-family: arial;"> 20 required to be given notice of the proceeding, pursuant to this section</span></p><p><span style="font-family: arial;"> 21 and section three hundred eighty-four-c of this title, and there shall</span></p><p><span style="font-family: arial;"> 22 be shown by the petition or by affidavit or other proof satisfactory to</span></p><p><span style="font-family: arial;"> 23 the court that there are no persons other than those set forth in the</span></p><p><span style="font-family: arial;"> 24 petition who are entitled to notice pursuant to the provisions of this</span></p><p><span style="font-family: arial;"> 25 section or of section three hundred eighty-four-c of this title.] When</span></p><p><span style="font-family: arial;"> 26 the proceeding is initiated in family court service of the petition and</span></p><p><span style="font-family: arial;"> 27 other process shall be made in accordance with the provisions of section</span></p><p><span style="font-family: arial;"> 28 six hundred seventeen of the family court act, and when the proceeding</span></p><p><span style="font-family: arial;"> 29 is initiated in surrogate's court, service shall be made in accordance</span></p><p><span style="font-family: arial;"> 30 with the provisions of section three hundred seven of the surrogate's</span></p><p><span style="font-family: arial;"> 31 court procedure act. When the proceeding is initiated on the grounds of</span></p><p><span style="font-family: arial;"> 32 abandonment of a child less than one year of age at the time of the</span></p><p><span style="font-family: arial;"> 33 transfer of the care and custody of such child to a local social</span></p><p><span style="font-family: arial;"> 34 services official, the court shall take judicial notice of efforts to</span></p><p><span style="font-family: arial;"> 35 locate the child's parents or other known relatives or other persons</span></p><p><span style="font-family: arial;"> 36 legally responsible pursuant to paragraph (ii) of subdivision (b) of</span></p><p><span style="font-family: arial;"> 37 section one thousand fifty-five of the family court act.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §384-a, subd. 12 was repealed by Laws of 2022, Ch 828, §9, effective December 30, 2022. It formerly provided:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">12. If the court determines to commit the custody and guardianship of the child pursuant to this section, or if the court determines to suspend judgement pursuant to section six hundred thirty-three of the family court act, the court in its order shall determine if there is any parent to whom notice of an adoption would be required pursuant to section one hundred eleven-a of the domestic relations law. In its order the court shall indicate whether such person or persons were given notice of the proceeding and whether such person or persons appeared. Such determinations shall be conclusive in all subsequent proceedings relating to the custody, guardianship or adoption of the child.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §384-c, subd. 1 was amended by Laws of 2022, Ch 828, §10, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> 43 1. Notwithstanding any inconsistent provision of this or any other</span></p><p><span style="font-family: arial;"> 44 law, and in addition to the notice requirements of any law pertaining to</span></p><p><span style="font-family: arial;"> 45 persons other than those specified in subdivision two of this section,</span></p><p><span style="font-family: arial;"> 46 notice as provided herein shall be given to the persons specified in</span></p><p><span style="font-family: arial;"> 47 subdivision two of this section of any proceeding initiated pursuant to</span></p><p><span style="font-family: arial;"> 48 sections three hundred fifty-eight-a[,] and three hundred eighty-four[,</span></p><p><span style="font-family: arial;"> 49 and three hundred eighty-four-b] of this [chapter] title, involving a</span></p><p><span style="font-family: arial;"> 50 child born out-of-wedlock. Persons specified in subdivision two of this</span></p><p><span style="font-family: arial;"> 51 section shall not include any person who has been convicted of one or</span></p><p><span style="font-family: arial;"> 52 more of the following sexual offenses in this state or convicted of one</span></p><p><span style="font-family: arial;"> 53 or more offenses in another jurisdiction which, if committed in this</span></p><p><span style="font-family: arial;"> 54 state, would constitute one or more of the following offenses, when the</span></p><p><span style="font-family: arial;"> 55 child who is the subject of the proceeding was conceived as a result:</span></p><p><span style="font-family: arial;"> 56 [(A)] (a) rape in first or second degree; [(B)] (b) course of sexual</span></p><p><span style="font-family: arial;"> 1 conduct against a child in the first degree; [(C)] (c) predatory sexual</span></p><p><span style="font-family: arial;"> 2 assault; or [(D)] (d) predatory sexual assault against a child.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §384-c, subd. 3 was amended by Laws of 2022, Ch 828, §11, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> 6 3. The provisions of this section shall not apply to persons entitled</span></p><p><span style="font-family: arial;"> 7 to notice pursuant to section one hundred eleven of the domestic</span></p><p><span style="font-family: arial;"> 8 relations law. The sole purpose of notice under this section shall be to</span></p><p><span style="font-family: arial;"> 9 enable the person served pursuant to subdivision two of this section to</span></p><p><span style="font-family: arial;"> 10 present evidence to the court relevant to the best interests of the</span></p><p><span style="font-family: arial;"> 11 child. [In any proceeding brought upon the ground specified in paragraph</span></p><p><span style="font-family: arial;"> 12 (d) of subdivision four of section three hundred eighty-four-b, a person</span></p><p><span style="font-family: arial;"> 13 served pursuant to this section may appear and present evidence only in</span></p><p><span style="font-family: arial;"> 14 the dispositional hearing.]</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Social Services Law §384-c, subd. 7 was amended by Laws of 2022, Ch 828, §12, effective December 30, 2022 to read as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> 17 7. No order of the court in any proceeding pursuant to section three</span></p><p><span style="font-family: arial;"> 18 hundred fifty-eight-a[,] or three hundred eighty-four [or three hundred</span></p><p><span style="font-family: arial;"> 19 eighty-four-b] of this [chapter] title or in any subsequent proceeding</span></p><p><span style="font-family: arial;"> 20 involving the child's custody, guardianship or adoption shall be</span></p><p><span style="font-family: arial;"> 21 vacated, annulled or reversed upon the application of any person who was</span></p><p><span style="font-family: arial;"> 22 properly served with notice in accordance with this section but failed</span></p><p><span style="font-family: arial;"> 23 to appear, or who waived notice pursuant to subdivision five of this</span></p><p><span style="font-family: arial;"> 24 section. Nor shall any order of the court in any proceeding involving</span></p><p><span style="font-family: arial;"> 26 reversed upon the application of any person who was properly served with</span></p><p><span style="font-family: arial;"> 27 notice in accordance with this section in any previous proceeding in</span></p><p><span style="font-family: arial;"> 28 which the court determined that the transfer or commitment of the</span></p><p><span style="font-family: arial;"> 29 child's care, custody or guardianship to an authorized agency was in the</span></p><p><span style="font-family: arial;"> 30 child's best interests.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">December 28, 2022</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Second Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce where the amendment proposed by the defendant was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Ferrigan v Ferrigan, --- N.Y.S.3d ----, 2022 WL 17660436, 2022 N.Y. Slip Op. 07058 (2d Dept.,2022) the parties were married in March 1996. Their judgment of divorced entered August 12, 2003 included a stipulation of settlement dated February 27, 2003 which was incorporated but not merged into the judgment. In August 2018, the defendant moved, inter alia, pursuant to CPLR 5019(a) to resettle the judgment of divorce on the ground that a provision in the judgment of divorce requiring him to provide health insurance for the parties’ children was inconsistent with the provision in the stipulation which provided that the plaintiff would provide health insurance for the children through her employer, but if she were unemployed, the defendant would do so through his employer. In an order dated April 1, 2019, the Supreme Court, inter alia, granted the defendant’s motion so as to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to provide health insurance for the parties’ children..</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division modified. It held that the defense of laches is not a basis to preclude the resettlement of the judgment of divorce as the plaintiff failed to show that she was prejudiced by the defendant’s delay in seeking to correct the error. Since the plaintiff failed to show a change in circumstances making it inequitable to grant the requested relief, t]he mere lapse of time without a showing of prejudice will not sustain a defense of laches. Resettlement of a judgment of divorce pursuant to CPLR 5019(a) is an appropriate remedy when the judgment does not accurately incorporate the terms of a stipulation of settlement. Although the judgment of divorce provided that the defendant was responsible for providing health insurance for the parties’ children, that provision was inconsistent with the terms of the stipulation which contained a provision which set forth that the plaintiff was responsible for providing health insurance for the parties’ children through her employer unless she became unemployed, and then the defendant would be responsible for providing health insurance for them through his employer. Supreme Court properly granted defendant’s motion to resettle the judgment of divorce to the extent that it was inconsistent with the stipulation. However, the Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce to the extent it sought to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to be solely responsible to provide health insurance for the parties’ children. The amendment proposed by the defendant failed to comport with the terms of the stipulation regarding the responsibility of the parties as to the health insurance for their children and was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Third Department</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Argument that his change in residence constituted a change in circumstances was unpreserved for appellate review “absent a motion to conform the pleadings to the proof” </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Anthony JJ, v Angelin JJ, --- N.Y.S.3d ----, 2022 WL 17835304 (3d Dept.,2022) Family Court dismissed the father’s custody modification petition, finding that the father had failed to demonstrate a change in circumstances warranting a best interests analysis. The Appellate Division affirmed. It held that the required change in circumstances may be found to exist where the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the children. Here, the record as a whole reflected a level of hostility and mutual distrust between the parties that demonstrated that the parties were incapable of working together in a cooperative fashion for the good of their children. However, as Family Court found, this hostility and failure to cooperate existed at the time of the prior order – serving as the basis, at least in part, for awarding the mother sole legal and primary physical custody of the children, and was therefore not a new development. The father’s argument that his change in residence constituted a change in circumstances was unpreserved for appellate review “absent a motion to conform the pleadings to the proof” before Family Court.</span></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Condition in dispositional neglect order requiring Respondent to “maintain and provide documentation of legal income source(s) sufficient to support the child” did not violate her constitutional rights where Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Y. SS.,--- N.Y.S.3d ----, 2022 WL 17835259(3d Dept.,2022) after a hearing Family Court issued a decision finding the subject child to be a neglected child. A dispositional hearing was held, after which Family Court issued a dispositional order indicating that respondent has yet to achieve any insight that she engaged in any wrongful and neglectful behavior and ordering that the subject child remain in petitioner’s custody. The Appellate Division affirmed. It was established that respondent had a friend with whom she sometimes performed sexual services for money. At some point, in text messages, the friend began asking for things involving the subject child. Respondent testified that she “knew he wanted something with my daughter, but he wasn’t getting it.” On one occasion, respondent sent a naked photograph of the subject child to the friend. On another occasion, during a telephone call with the friend, respondent offered to perform oral sex on him while allowing him to look at the subject child naked while she slept. In text messages, respondent provided her address to the friend. The Appellate Division held that the willingness of respondent to involve the subject child in the performance of her sexual services for money put the subject child’s physical, emotional and mental health in imminent danger and we cannot say that “a reasonable and prudent parent [would] have so acted ... under the circumstances” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]). Although respondent testified that she took the photograph to send to the child’s doctor, Family Court found respondent’s testimony incredible. Family Court properly adjudicated the subject child to be neglected. The Appellate Division rejected Respondents argument that some of the conditions of Family Court’s dispositional order were unconstitutional. Respondent challenged the condition that she “maintain and provide documentation of legal income source(s) sufficient to support the child.” Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way. It was unclear how this condition, which encouraged her not to engage in prostitution as a means of income, violated her constitutional rights. Respondent also challenged the condition that she “acknowledge and demonstrate an understanding of her role in the neglect of the subject child ..., specifically how her prostitution and involvement of [the subject child] in that prostitution as sexual bait for a pedophile harmed [the subject child] and placed [her] at risk of further harm.” Contrary to respondent’s argument, this condition did not require her to admit to a finding of neglect, but rather that she recognize and understand how involving the subject child in her prostitution put the child at risk. A demonstration of understanding would decrease the chance of such behavior recurring. It did not find that this condition implicated respondent’s right to due process of law.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Appellate Division, Fourth Department </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;">Although the burden of proof in a Neglect proceeding rests with the petitioner, once the petitioner has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Mea V, 210 A.D.3d 1408 (4th Dept, 2022) a neglect proceeding, the Appellate Division observed that a prima facie case of child abuse or neglect may be established by evidence that a child sustained an injury that would ordinarily not occur absent an act or omission of respondents and that respondents were the caretakers of the child at the time the injury occurred (Family Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40 [1993]). Although the burden of proof rests with the petitioner, once the petitioner “has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability. To rebut the presumption of parental culpability, the respondents may present evidence to (1) establish that during the time period when the child was injured, the child was not in respondents care; (2) demonstrate that the injury or condition could reasonably have occurred accidentally, without the acts or omission of respondents; or (3) counter the evidence that the child had the condition which was the basis for the finding of injury . In determining whether to rely on the presumption, the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretakers explanation in light of all the circumstances. The Appellate Division rejected respondents contention that, inter alia, they rebutted the presumption of parental culpability by providing a reasonable explanation for how the child’s injuries could have occurred without any act or omission on their part. Respondents originally claimed to the pediatrician and the Child Protective Services caseworker that the child’s injuries, which included 28 rib fractures and an injured lung, were accidental, but none of the medical evidence supported that claim. It concluded that Family Court properly rejected respondents’ subsequent claim at trial that the injuries were due to an underlying medical condition: the testimony of respondents’ expert witnesses was incredible and their conclusions were not consistent with the other evidence.</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Family Court<span style="white-space: pre;"> </span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Where, no other State could properly assume custody jurisdiction it was appropriate for New York to assume “vacuum jurisdiction” </span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="white-space: normal;"><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Olaide O v Oluseun O, 2022 WL 17727139 (unreported disposition) (Fam Ct, 2022) the child F. had resided in Nigeria with relatives for his entire life. During the custody hearing, Ms. O., who resided in New York testified that she and her husband had resided in Nigeria and that Mr. O. left Nigeria in 2016 with the intention that she and the children would follow as soon as possible. Based on testimony presented at the hearing, the Court found that Ms. O. never consented to the child’s permanent residence in Nigeria, that the relatives caring for the child in Nigeria were not persons acting as a parent and that it was the intention of both parties to bring the child to the United States. Therefore, the Court held that: “Here, no other State can properly assume jurisdiction. Nor can jurisdiction properly lie in Nigeria when both parents, who have a superior right to custody, reside in New York. Additionally, the Children who reside here in NY have rights to visit with their sibling that cannot be effectuated without the court assuming jurisdiction. Therefore, it was appropriate for New York to assume “vacuum jurisdiction” in this case. Nusrat C. v. Muhammed R., 67 AD3d 419 (1st Dept 2009) (finding that subject matter jurisdiction existed under both DRL § 70 (a) and DRL 76(1)(d) even though the child lived abroad, because both parents lived in the state and were personally before the court). Pursuant to DRL 76(1)(d), this Court has jurisdiction over the child F. O.”</span></span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;">Domestic Relations Law § 240, subd.1 (a-3)</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> Laws of 2022, Chapter 740, § 1 enacted on December 23, 2022 amended Domestic Relations Law § 240 Subdivision 1 by adding a new paragraph (a-3), effective as provided in § 4 on the 180th day after it shall have become a law (June 25, 2023). It provides as follows:</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> (a-3) Court ordered forensic evaluations involving child custody and</span></p><p><span style="font-family: arial;"> visitation. (1) The court may appoint a forensic evaluator on behalf of</span></p><p><span style="font-family: arial;"> the court to evaluate and investigate the parties and a child or chil-</span></p><p><span style="font-family: arial;"> dren in a proceeding involving child custody and visitation provided</span></p><p><span style="font-family: arial;"> that the child custody forensic evaluator is a psychologist, social</span></p><p><span style="font-family: arial;"> worker or psychiatrist who is licensed in the state of New York and has</span></p><p><span style="font-family: arial;"> received within the last two years, a certification of completion for</span></p><p><span style="font-family: arial;"> completing the training program pursuant to paragraph (o) of subdivision</span></p><p><span style="font-family: arial;"> three of section five hundred seventy-five of the executive law.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> (2) Notwithstanding any provision of law to the contrary, no individ-</span></p><p><span style="font-family: arial;"> ual shall be appointed by a court to conduct a forensic evaluation in a</span></p><p><span style="font-family: arial;"> proceeding involving child custody and visitation pursuant to this para-</span></p><p><span style="font-family: arial;"> graph unless such individual has received within the last two years, a</span></p><p><span style="font-family: arial;"> certification of completion for completing the training program pursuant</span></p><p><span style="font-family: arial;"> to paragraph (o) of subdivision three of section five hundred seventy-</span></p><p><span style="font-family: arial;"> five of the executive law.</span></p><p><span style="font-family: arial;"> </span></p><p><span style="font-family: arial;"> (3) A psychologist, social worker or psychiatrist authorized to</span></p><p><span style="font-family: arial;"> conduct court ordered child custody forensic evaluations pursuant to</span></p><p><span style="font-family: arial;"> this section shall notify the court in which such individual requests to</span></p><p><span style="font-family: arial;"> be considered for such court ordered evaluations. Any psychologist,</span></p><p><span style="font-family: arial;"> social worker or psychiatrist who no longer meets the requirements of</span></p><p><span style="font-family: arial;"> this section in regards to completing within the last two years the</span></p><p><span style="font-family: arial;"> training program pursuant to paragraph (o) of subdivision three of</span></p><p><span style="font-family: arial;"> section five hundred seventy-five of the executive law shall be obli-</span></p><p><span style="font-family: arial;"> gated to inform such courts within seventy-two hours of noncompliance so</span></p><p><span style="font-family: arial;"> as to be removed from consideration for court ordered evaluations.</span></p><p><span style="font-family: arial;"><br /></span></p><p><span style="font-family: arial;"> (4) Upon appointment, the court shall require such child custody</span></p><p><span style="font-family: arial;"> forensic evaluator to show proof of certification for completing within</span></p><p><span style="font-family: arial;"> the last two years the training program pursuant to paragraph (o) of</span></p><p><span style="font-family: arial;"> subdivision three of section five hundred seventy-five of the executive</span></p><p><span style="font-family: arial;"> law.</span></p><p><br /></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-52948391015191950642022-12-24T11:10:00.004-05:002022-12-24T11:15:41.908-05:00Recent Decisions and Legislation December 14, 2022<p><span style="font-family: arial;"><b> </b></span><span style="font-family: arial;"><b>December 14, 2022</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Pendente lite child support award will not be disturbed absent exigent circumstances or failure to consider appropriate factors.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Murray v Rashid, --- N.Y.S.3d ----, 2022 WL 17490799, 2022 N.Y. Slip Op. 07001 (First Dept., 2022) the Appellate Division declined to disturb the pendente lite child support award where the husband had not shown that there were exigent circumstances necessitating a different award, nor that Supreme Court failed to consider the appropriate factors when it determined the award, which was derived from the parties’ imputed incomes.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Even if the judgment of divorce included terms that were not expressly agreed to by the parties, the parties agreement in their oral stipulation upon the essential elements created an enforceable contract and court was entitled to fill in the gaps based on objective criteria</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b> <span style="white-space: pre;"> </span>In Bradley v Bakal, --- N.Y.S.3d ----, 2022 WL 17490833, 2022 N.Y. Slip Op. 06988(1st Dept.,2022) the Appellate Division, inter alia, rejected defendant’s contention that the judgment of divorce should be vacated in its entirety because the parties had not yet agreed to all the ancillary issues to the divorce, and the judgment did not reflect the parties’ in-court oral stipulation. The record made clear that the parties’ in-court oral stipulation was intended to resolve all ancillary issues of the divorce. Even if the judgment of divorce included terms that were not expressly agreed to by the parties, upon review of the oral stipulation, it concluded that the parties agreed upon the essential elements to create an enforceable contract, notwithstanding that certain discrete issues were left open to future negotiation. Since the parties were unable to reach an agreement on these remaining issues, the court was entitled to fill in the gaps based on objective criteria (see Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 317–318, 515 N.Y.S.2d 1 [1st Dept. 1987]). It remanded the matter to the court for a determination that the terms of the judgment of divorce not expressly agreed to by the parties comport with some objective criteria.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Appellate Division, Second Department<span style="white-space: pre;"> </span></b></span></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b>Family Court has the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b) in a contempt proceeding based upon its determination, in effect, that the mother had engaged in frivolous conduct. A hearing was not necessary since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Matter of Coward v Biddle, 2022 WL 17332496 (2d Dept.,2022) the father’s counsel moved, inter alia, to hold the mother in civil contempt for her failure to comply with a prior order of the Family Court which had directed the mother to pay attorneys’ fees directly to the father’s counsel of $3,000. Family Court found the mother in civil contempt of the order, and awarded the father’s counsel additional attorneys’ fees totaling $4,500. The Appellate Division affirmed both orders. It held that the Family Court had the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b). The court did not improvidently award the father’s counsel attorneys’ fees based upon its determination, in effect, that the mother had engaged in frivolous conduct (see 22 NYCRR 130–1.1[a]). Despite the mother’s contention to the contrary, a hearing with respect to the award of attorneys’ fees was not necessary under the circumstances, since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Matter of Sydelle P. --- N.Y.S.3d ----, 2022 WL 17332493, 2022 N.Y. Slip Op. 06809 (2d Dept.,2022) the Appellate Division, held that a finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence. Even a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding. Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b> <span style="white-space: pre;"> </span>In Matter of Karen P. v. Alvin P., --- N.Y.S.3d ----, 2022 WL 17332553 (Mem), 2022 N.Y. Slip Op. 06808 (2d Dept.,2022) a family offense proceeding the Appellate Division held that where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.</b></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"><b> </b></span></span></p><p><span style="font-family: arial;"><b>Supreme Court did not improvidently exercise its discretion in awarding the monied spouse attorney’s fees where, among other things, plaintiff’s conduct resulted in unnecessary litigation</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b> <span style="white-space: pre;"> </span>In Forman v Forman, --- N.Y.S.3d ----, 2022 WL 17480735, 2022 N.Y. Slip Op. 06913 (2d Dept.,2022) the parties stipulation of settlement was incorporated but not merged into a judgment of divorce dated April 2, 2019. In June 2019, the plaintiff moved to vacate the judgment of divorce and to set aside the stipulation. The Supreme Court, denied the plaintiff’s motion and awarded the defendant attorney’s fees of $6,987.50. The Appellate Division affirmed. It held that Supreme Court did not improvidently exercise its discretion in awarding the defendant attorney’s fees. The award of reasonable attorney’s fees is a matter in the court’s sound discretion, and the court may consider, inter alia, a party’s tactics that unnecessarily prolonged the litigation. While the plaintiff was the less monied spouse, the court’s award reflected consideration of the relevant factors, including that the plaintiff’s conduct resulted in unnecessary litigation. Thus, the court did not improvidently exercise its discretion in granting the defendant’s cross motion for an award of attorney’s fees.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Family Court properly included the children as protected persons on the order of protection, where he evidence demonstrated that doing so was necessary to further the purposes of protection</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Matter of Cook v Berehowsky, --- N.Y.S.3d ----, 2022 WL 17480744, 2022 N.Y. Slip Op. 06925 (2d Dept.,2022) the Appellate Divison observed that a person commits harassment in the second degree when that person, “with intent to harass, annoy or alarm another person ... strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26[1]). The intent element may be inferred from the surrounding circumstances. It held that the mother established by a fair preponderance of the evidence that the father had committed the family offense of harassment in the second degree. The mother’s testimony, which the Family Court credited, established that the father pulled a rug out from under her, causing her to fall. The father committed this act in the presence of the children, and the mother’s hand hit one of the subject children as she fell. The father’s intent to harass and alarm the mother could be inferred from the circumstances here, including his screaming before the incident and the lack of a legitimate reason for the father to pull the rug on which the mother was standing, particularly when the mother was in such close proximity to the subject children. Additionally, the Family Court properly included the children as protected persons on the order of protection, as the evidence demonstrated that doing so was “necessary to further the purposes of protection” (Family Ct Act § 842[l]; see Matter of Lengiewicz v. Lengiewicz, 167 A.D.3d 608, 609, 89 N.Y.S.3d 241; Matter of Shank v. Shank, 155 A.D.3d 875, 877, 63 N.Y.S.3d 719).</b></span></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>March 31, 2021 amendment to Family Court Act § 1046(a)(iii) which provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b> <span style="white-space: pre;"> </span>In Matter of Mia S v Michelle C,, --- N.Y.S.3d ----, 2022 WL 17480834, 2022 N.Y. Slip Op. 06932 (2d Dept.,2022) the Appellate Division observed that on March 31, 2021, Family Court Act § 1046(a)(iii) was amended to provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect. It held that the March 31, 2021 amendment to Family Court Act § 1046(a)(iii) should be retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021. It observed that pursuant to Family Court Act § 1046(a)(iii), “proof that a person repeatedly misuses a drug,” under certain circumstances, constitutes “prima facie evidence that a child of ... such person is a neglected child.” Where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm.” Family Court Act § 1046(a)(iii), as amended (L 2021, ch 92, § 58), provides as follows: “(a) In any hearing under this article and article ten-A of this act: ... “(iii) proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug, or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program. Provided however, the sole fact that an individual consumes cannabis, without a separate finding that the child’s physical mental or emotional condition was impaired or is in imminent danger of becoming impaired established by a fair preponderance of the evidence shall not be sufficient to establish prima facie evidence of neglect.”</b></span></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>The Appellate Division concluded that Family Court’s finding of neglect was proper under Family Court Act § 1046(a)(iii), as amended in March 2021 was proper. In determining that the child was neglected, the Family Court did not make a finding as to whether the child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” (FCA § 1012[f][i]). Such a finding was obviated because the court relied on the presumption set forth in Family Court Act § 1046, under which “proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child” (id. § 1046[a][iii]). Thus, the order appealed from should be affirmed only if the statutory presumption was properly applied. It held that the 2021 amendment did not preclude a determination that the petitioner established a prima facie case of neglect. The 2021 amendment should not be interpreted as preventing any reliance on the misuse of marihuana, no matter how extensive or debilitating, to establish a prima facie case of neglect. The statute still encompasses the misuse of other legal substances, such as alcoholic beverages and prescription drugs. It held that based on the plain language of the statute, the 2021 amendment does not prevent a court from finding that there has been a prima facie showing of neglect where the evidence establishes that the subject parent has, in fact, repeatedly misused marihuana in a manner that “has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality”. Such a finding is not based on “the sole fact” that the parent “consumes cannabis”.</b></span></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>The evidence presented at the fact-finding hearing, which included the testimony of the mother and her boyfriend, hospital treatment records, and other medical records, supported the Family Court’s determination that the petitioner met its burden of proving that the mother neglected the child by her misuse of marihuana in a manner and to the extent contemplated by Family Court Act § 1046(a)(iii). In its order, the Family Court expressly determined that the mother had misused marihuana and “clearly had a substantial impairment of judgment, and/or substantial manifestation of irrationality and was disoriented and/or incompetent.” Since this finding was not based on “the sole fact” that the mother “consumes cannabis” (Family Ct Act § 1046[a][iii]), it provided a sufficient basis on which to apply the presumption of neglect arising from repeated misuse of drugs that is articulated in the statute, as amended.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Appellate Division, Third Department</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Supreme Court properly denied pretrial motion for classification of assets, as separate property where the motion lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Belmonte v Belmonte, --- N.Y.S.3d ----, 2022 WL 17347194, 2022 N.Y. Slip Op. 06844 (3d Dept.,2022) an action for a divorce, the husband cross-moved for, among other things, a declaration that certain real property was separate property. Supreme Court denied the husband’s cross motion. In support of his motion, the husband submitted his own affidavit, various deeds and titles showing the titled owners of each property, and an expenditures list showing sums but lacking any detail as to how or where each sum was expended. The Appellate Division observed that the appeal lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage. It held that while it generally encourages pretrial classification of assets, under these circumstances, Supreme Court did not abuse its discretion in denying the husband’s cross motion to classify assets as separate property pretrial as additional discovery would place the motion court in a far better position to determine this legally dispositive issue, namely, what, if any, appreciation in the value of the real property can be considered marital property.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Supreme Court</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Supreme Court grants Defendants motion to re-open the trial pursuant to CPLR 4404(b), after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception<span style="white-space: pre;"> </span></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Gary G. v Elena A.G. ,--- N.Y.S.3d ----, 2022 WL 17482396, 2022 N.Y. Slip Op. 22373 (Sup Ct., 2022) Supreme Court granted defendants motion to re-open the trial pursuant to CPLR 4404(b),after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception. It rejected plaintiff argument that defendant’s reliance on CPLR §4404(b) was inapplicable here because the Court had not issued a decision or judgment. In support of the motion Defendant’s counsel affirmed that, his law firm e-mailed plaintiff’s counsel that defendant intended to offer certain charts pursuant to the voluminous writing exception into evidence the following day in support of her testimony regarding alleged marital debt incurred prior to commencement on her credit cards; that his law firm included a link to the proposed charts together with copies of the underlying credit card statements in said e-mail for plaintiff’s counsel’s review. Defendant’ counsel affirmed that he “inadvertently forgot” to offer “certain business records, reflecting the Defendant-Wife’s credit card debts and the parties’ marital expenditures, into evidence” on September 13, 2022.. The parties rested on September 14, 2022. </b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>Supreme Court observed that CPLR 4404(b) provides: (b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue. It pointed out that it is well-established that a motion pursuant to CPLR 4404(b) “must be made within 15 days after the submission of the court’s decision”. Where a CPLR 4404(b) motion is submitted more than 15 days after the court’s decision, the movant must demonstrate good cause for the delay. The standard in reviewing these applications includes the moving party demonstrating that they could not have previously discovered this evidence or that the evidence was previously inaccessible. The Court rejected plaintiff’s contention that defendant’s application pursuant to CPLR 4404(b) was fatal because no judgment or order has been issued. The unique facts and circumstances presented here clearly fell within the contemplation of CPLR 2005 relating to law office failure which provides: …the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure. Moreover, it is well-established that “[t]rial courts have the power to permit a litigant to reopen a case under appropriate circumstances” and in doing so the Court must consider “whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted.” The Court found that it was appropriate under the unique facts and circumstances presented, re-opening the trial on the limited issue of offering the credit cards and any related direct and cross-examination related to any such exhibits which may be accepted into evidence after the Court hears any relevant evidentiary objections based upon law office failure.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>The court pointed out that the best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven”. CPLR 4518(a) (the “business record exception”) provides that: (a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. The voluminous writing exception (also referred to as the “Voluminous Record Rule”) “permits the admission of summaries of voluminous records or entries where, if requested, the party against whom it is offered can have access to the original data”. The voluminous writing exception is not a new principal. In Public Operating Corp. v. Weingart, the Appellate Division, First Department in 1939 wrote that:[w]hen documents introduced in evidence at a trial are voluminous and of such a character as to render it difficult for the jury to comprehend material facts without schedules containing abstracts thereof, it is within the discretion of the judge to admit such schedules provided they are based on facts in evidence, verified by the testimony of the person by whom they were prepared, and provided that the adverse party is permitted to examine them to test their correctness and to cross examine upon them before the case is submitted to the jury (257 AD 379, 382 [1 Dept.,1939]).</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"><b> </b></span></span></p><p><span style="font-family: arial;"><b>Family Court<span style="white-space: pre;"> </span></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Family Court holds that FCA § 1015-a allows the court to order a social services official to transport the children in its Temporary Custody to a supervised visit, before a final order of disposition is entered</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In the Matter of D.G., G.C., G.L., I.C., I.L., K.C., L.C., M.C., S.C., --- N.Y.S.3d ----, 2022 WL 17589740, 2022 N.Y. Slip Op. 22379 (Fam Ct, 2022) the Family Court observed that the Court may order a social services official, such as the Commissioner, to provide a child placed in his care with authorized services pursuant to Family Ct Act §§ 255, 1015-a and 18 NYCRR §§ 427.3(c)(1); 441.15. State regulations authorize the Petitioning Agency to make special payments on behalf of foster children for items, costs, or services that are necessary for the child but are not included in the rate for board, care, and clothing. Such payments can include expenses necessary for family visits. 18 NYCRR § 427.3(c)(1). FCA § 1015-a allows the court to order a social services official to provide or arrange for services and help in order to protect the family, rehabilitate the family, or discharge the child from foster care including visitation services. FCA § 1030 applies to cases in which subject children are in the temporary custody of the local social services district before a final order of disposition places the subject children in foster care; it provides that a parent has a right to reasonable and regularly scheduled visits and allows a parent to apply to the court for such visits. When children are placed in foster care, visitation is the most critical way for families to stay connected and to achieve family reunification. State regulations require that parents receive at least bi-weekly visits. The Family Court rejected the argument of the Petitioning Agency that an order requiring the agency to transport the children I.C. and S.C. to the second weekly supervised visit would encroach on the agency’s administrative discretion to allocate its scarce resources. The Court granted the Respondent Mother’s application to the extent that the foster care agency, Catholic Guardian Services, was directed to transport the subject children I.C. and S.C. to the second weekly supervised visit.</b></span></p><div><br /></div><p class="MsoNormal"><b><u><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">November
30, 2022<o:p></o:p></span></span></u></b></p>
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<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><br /></p>
<h1 style="line-height: normal;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Navy pension credits earned prior to the marriage,
but acquired during the marriage, with marital funds, were deferred
compensation which was defendants separate property. However, as marital funds
were utilized to purchase the pension credits, those funds were subject to
equitable distribution<o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
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<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Szypula v Szypula, --- N.Y.S.3d ----, 2022 WL
17168939, 2022 N.Y. Slip Op. 06664 (3d Dept.,2022) Plaintiff (wife) and
defendant ( husband) were married in 1996 and had two unemancipated children.
The husband was employed by the United States Navy from 1987 until 1998,
earning 11 years of unvested pension credits. In 2012, the husband began
employment with the United States Department of State and was given the option
of “buy[ing] back” the pension benefit credits earned for his previous military
service. He did so, utilizing marital funds for the purchase. In 2019, the wife
commenced the action for divorce. The Supreme Court held that the Navy pension
credits earned prior to the marriage, but acquired during the marriage, were
marital in nature and included them in its calculation of the wife’s award of
the husband’s pension. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that Supreme Court erred in
classifying that portion of the Navy pension credits earned prior to the
marriage as marital property. Domestic Relations Law § 236 creates a statutory
presumption that all property acquired during the marriage is marital. The
burden then rests with the party asserting the separate property claim to rebut
the presumption. A pension benefit is, in essence, a form of deferred
compensation derived from employment and an asset of the marriage that both
spouses expect to enjoy at a future date. Even though workers are unable to
gain access to the money until retirement, their right to it accrues
incrementally during the years of employment. An employee’s interest in such a
plan, except to the extent that it is earned before marriage or after
commencement of a matrimonial action, is marital property.<span style="mso-spacerun: yes;"> </span>Whether and to what extent a pension benefit
is marital or separate property is determined by the time period in which the
credit for the pension was earned. Here, as nine of the 11 years of credits
purchased were admittedly earned prior to the marriage, they remained defendant’s
separate property. The Court noted that compensation for past services earned
prior to the marriage is separate property. The nine years of premarriage Navy
credits were earned outside the marriage and were<span style="mso-spacerun: yes;"> </span>based on the fruit of the titled spouse’s sole
labors. As they were not due in any way to the indirect contributions of the
non-titled spouse, the wife’s contention that she was entitled to an equitable
share of any “appreciation” in the value of credits that had been classified as
the husband’s separate property was unpersuasive. The acquisition of the
separate pension credits could not serve to transform such property into a
marital asset (see Ceravolo v. DeSantis, 125 A.D.3d 113, 116, 1 N.Y.S.3d 468
[3d Dept. 2015]; Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769 [3d
Dept. 2000]). However, as marital funds were utilized to purchase the pension
credits, those funds were subject to equitable distribution. It remitted the
matter to Supreme Court to amend the QDRO to reflect that the nine years of
premarriage credit for military service from 1987 to 1996 was the husband’s
separate property and to equitably distribute the marital funds utilized to
purchase the credits <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="font-family: arial;">Where the conduct at issue is alleged to have
occurred in a private residence, in order to establish the family offense of
disorderly conduct, there must be a prima facie showing that the conduct was
either intended to cause, or recklessly created a risk of causing, public
inconvenience, annoyance, or alarm. <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Kilts v Kilts 2022 WL 17168983 (3d
Dept.,2022) the Appellate Division reversed an order of the family court which
found that respondent had committed the family offense of disorderly conduct
and issued a six-month order of protection on petitioner’s behalf. It pointed
out that , “[a] person is guilty of disorderly conduct when, with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof[,] ... [h]e [or she] engages in fighting or in violent, tumultuous or
threatening behavior” (Penal Law § 240.20[1]). Pursuant to both CPL 530.11(1)
and Family Court Act § 812(1), disorderly conduct’ includes disorderly conduct
not in a public place.<span style="mso-spacerun: yes;"> </span>Yet, even where the
conduct at issue is alleged to have occurred in a private residence, in order
for a petitioner to meet his or her burden of establishing the family offense
of disorderly conduct, there must be a prima facie showing that the conduct was
either intended to cause, or recklessly created a risk of causing, public
inconvenience, annoyance, or alarm. The intent to cause, or recklessness in
causing, public harm, is the mens rea of the offense of disorderly conduct . At
the fact-finding hearing, petitioner testified that she had called the police
on respondent a couple of times, and in the morning of the day respondent
threatened her life, she believed she spoke with “Officer Morrison” or another
sheriff’s deputy but did not have an accompanying police report. Petitioner at
first stated that she never told anyone about respondent’s threat, but then
stated that she told two friends about it, as well as her son-in-law. Here,
petitioner failed to meet her burden of making a prima facie showing that
respondent had the requisite intent to create public inconvenience, annoyance
or alarm, or recklessly causing a risk of the same. Petitioner’s evidence did
not establish that respondent’s actions were public in a manner that would
support such a finding. Respondent’s threat against petitioner’s life would
have undoubtedly caused public disorder if others had heard the threat.
However, the record revealed that respondent appeared to have threatened
petitioner’s life in only their company, and without having drawn the attention
of others to the scene. Although the police were called on one instance,
without a police report in evidence, it was impossible to determine which one
of the parties – or if, in fact, a neighbor – had called the police to
therefore permit a finding that respondent’s conduct rose to the level of
creating a public disturbance.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none;">T</span><span style="font-size: 11pt; text-decoration: none; text-underline: none;">he law is well established that
hearsay evidence as to allegations of abuse or neglect can be admitted into
evidence during a custody proceeding if corroborated by other evidence</span><span style="font-size: 11pt; text-decoration: none;">.</span><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Sarah QQ v Raymond PP, --- N.Y.S.3d ----,
2022 WL 17168630, 2022 N.Y. Slip Op. 06659 (3d Dept.,2022) after a fact-finding
hearing and a Lincoln hearing, Family Court dismissed the father’s custody
modification petitions and granted the mother’s petitions, awarding her sole
legal and primary physical custody of the child. On appeal the father contended
that Family Court improperly excluded CPS records regarding indicated findings
against the mother concerning her abuse and/or neglect of another child, which
included statements by the subject child. The Appellate Division observed that
although hearsay is generally not permitted, “[t]his Court has carved out an
exception to the hearsay rule in custody cases involving allegations of abuse
and neglect of a child, based on the Legislature’s intent to protect children
from abuse and neglect as evidenced in Family Ct Act § 1046(a)(vi)” (Matter of
Rosario WW. v. Ellen WW., 309 A.D.2d 984, 987, 765 N.Y.S.2d 710 [3d Dept.
2003]). Such testimony requires corroboration, though a<span style="mso-spacerun: yes;"> </span>relatively low degree of corroboration is
sufficient, and the requirement may be satisfied by any other evidence tending
to support the reliability of the child’s statements.<span style="mso-spacerun: yes;"> </span>At the fact-finding hearing, Family Court
permitted the father to testify as to receiving notifications from CPS that the
mother “has been indicated in some cases regarding her other children.” The
mother then objected, stating that this was “irrelevant and immaterial” because
it did not involve the subject child and was hearsay. The court overruled the
objection on the basis that the other children resided in the same home as the
subject child. Later during the fact-finding hearing, the father sought to
admit certified records of Saratoga County Department of Social Services
“pertaining to the parties and/or the child relative to these proceedings.” The
mother objected on the basis of hearsay. The father contended that these
records were admissible as business records or alternatively, under an
exception based on indicated abuse and neglect findings. The attorney for the
child also argued that the records fell within “the hearsay exception for them
to be admitted.” Family Court did not allow the records into evidence on the
basis of hearsay, remarking that “we aren’t here on a neglect proceeding. We’re
here on a custody proceeding.... [N]o hearsay is permitted unless there’s an
exception otherwise. And ... the fact that it may deal with abuse or neglect is
not an exception to the hearsay rule.” The agency records that the father
sought to admit were not in the record. A review of the father’s modification
petition revealed that he noted CPS’s involvement with the mother and cited to
such as establishing a change in circumstances. Specifically, he alleged there
had been “ongoing child protective involvement in the mother’s home, that the
subject child had indicated there was domestic abuse taking place in the home
and that the child has reported that he is being neglected by the mother. The
petition stated that “it was revealed through the CPS open investigation that
the child is reporting that there is no food at the mother’s home and that he
goes without meals.” Based on the foregoing, the Appellate Division held that
Family Court erred in refusing to allow the CPS records into evidence based
upon the rationale that no hearsay exception existed for abuse and neglect
allegations in a Family Ct Act article 6 proceeding. Although this was not a
Family Ct Act article 10 proceeding, the law is well established that hearsay
evidence as to allegations of abuse or neglect can be admitted into evidence
during a custody proceeding if corroborated by other evidence. The matter was
reversed and remitted to Family Court for the admission of such evidence at a
new fact-finding hearing on the parties’ modification petitions.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Dismissal of custody modification petition reversed
and matter remitted to a different judge where<span style="mso-spacerun: yes;">
</span>Family Court demonstrated an inability to be fair.<span style="mso-spacerun: yes;"> </span>Based on its comments regarding its predispositions
and its inappropriate comment regarding the mother’s credibility, Family Court
appeared to have prejudged the case.<br />
</span><span style="font-size: 11pt; text-decoration: none;"><br />
</span><span style="color: black; font-size: 11pt; mso-themecolor: text1; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span>In
Matter of Nicole B. v Franklin A , --- N.Y.S.3d ----, 2022 WL 17168800, 2022
N.Y. Slip Op. 06672 (3d Dept.,2022) the Appellate Division held that accepting
the mother’s proof as true and according her the benefit of every possible
favorable inference, Family Court erred in dismissing the mother’s amended
custody modification petition. It found that the mother’s proof regarding
injuries suffered by the child during the father’s parenting time, taken
together with the mother’s improved parenting abilities and living conditions,
demonstrated a change in circumstances sufficient to overcome a motion to
dismiss. It agreed with the mother and the appellate attorney for the child
that the matter should be remitted to a different judge. It found that Family
Court demonstrated an inability to be fair at various stages of the proceeding,
starting with the first appearance, where the court indicated that it was
inclined to dismiss the mother’s modification petition without a hearing, and
the order on appeal made clear that the court had, sua sponte, earlier
dismissed several petitions filed by the mother. At the next appearance, the court
again indicated that it was disinclined to modify the custody order and later,
referring to the mother, stated that “the boy who cried wolf is very large and
in charge of this case.” At the opening of the fact-finding hearing, after
noting that it had already held several hearings regarding this child, the
court stated that if it “g[o]t the feeling as we go through that the burden of
that change [in circumstances] is not going to happen ... [the court is] going
to cut things off.” Then, at the close of the mother’s proof, Family Court
prompted the father to make a motion to dismiss the mother’s petition, which
motion the court granted. Based on Family Court’s comments regarding its
predispositions and its inappropriate comment regarding the mother’s credibility,
Family Court appeared to have prejudged the case. The </span><span style="color: black; font-size: 11pt; text-decoration: none;">matter </span><span style="color: black; font-size: 11pt; mso-themecolor: text1; text-decoration: none; text-underline: none;">was remitted for a new hearing before a different judge</span><span style="font-size: 11pt; text-decoration: none; text-underline: none;">.</span><span style="font-size: 11pt; text-decoration: none;"><br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--><span style="mso-no-proof: yes;"><o:p></o:p></span></span></span></h1>
<p class="MsoNormal"><b><u><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">November
23, 2022<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><u><span style="color: red; font-size: 11pt;">Appellate
Division, Second Department</span></u><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span> SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="mso-tab-count: 1;"> </span> <o:p></o:p></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc120083657"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Repeated and unfounded
allegations of sexual abuse are a sufficient change of circumstances to warrant
a best interest hearing to determine whether to modify an existing custody
arrangement</span></a><span style="mso-bookmark: _Toc120083657;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In Matter of McDowell v Marshall, --- N.Y.S.3d ----,
2022 WL 16827201, 2022 N.Y. Slip Op. 06248 (2d Dept.,2022) the Appellate
Division observed that in order to modify an existing custody arrangement,
there must be a showing of a subsequent change of circumstances so that
modification is required to protect the best interests of the child. The best
interests of the child must be determined by a review of the totality of the
circumstances. Repeated and unfounded allegations of sexual abuse are a
sufficient change of circumstances.<span style="mso-spacerun: yes;">
</span>Further, where the initial custody arrangement is based upon an
agreement between the parties, it is entitled to less weight than the
determination by a court. The Family Court properly found that there was a
change of circumstances sufficient to change the parties’ custodial
arrangement, based upon, inter alia, the mother’s repetition of sexual abuse
allegations when she sought medical treatment for the child in October 2019,
after those allegations had been determined to be unfounded. Further, the
evidence of a hostile relationship between the mother and the father indicated
that joint decision-making was untenable, which was also a change of
circumstances. It found that Family Court’s determination that there had been a
change in circumstances requiring a transfer of primary physical custody and
final decision-making authority to the father to ensure the best interests of
the child had a sound and substantial basis in the record.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc120083658"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">A parent’s right to be present
for fact-finding and dispositional hearings in termination of parental rights
cases is not absolute</span></a><span style="mso-bookmark: _Toc120083658;"></span><span style="mso-ansi-language: EN-CA; text-decoration: none; text-underline: none;"> <span lang="EN-CA"><o:p></o:p></span></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><o:p></o:p></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In Matter of Briana S.-S.--- N.Y.S.3d ----, 2022 WL
16847920, 2022 N.Y. Slip Op. 06337 ( 4<sup>th</sup> Dept., 2022) the Appellate
Division rejected the fathers contention that the court abused its discretion
in denying his attorney’s request for an adjournment when the father was not
transported from the facility where he was incarcerated to the courthouse on
the first day of the fact-finding hearing. It held that a parent’s right to be
present for fact-finding and dispositional hearings in termination cases is not
absolute. When faced with the unavoidable absence of a parent, a court must
balance the respective rights and interests of both the parent and the
child[ren] in determining whether to proceed.<span style="mso-spacerun: yes;">
</span>Here, the court properly proceeded in the father’s absence in order to
provide the children with a prompt and permanent adjudication. Although the
father was not present on the first day of the hearing, he was able to assist
his attorney in cross-examining the mother after she testified during her
case-in-chief, and in cross-examining a caseworker during her continued
testimony on the second day of the hearing; the court balanced the need for a
prompt adjudication with the father’s interests in its evidentiary rulings by,
inter alia, denying petitioner’s application to play an exhibit on the first
day of the hearing when the father was not present; and the father’s attorney
represented his interests at the hearing. Thus, the father failed to
demonstrate that he suffered any prejudice as a result of his absence.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc120083659"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">A direct appeal from a summary
criminal contempt adjudication is appropriately entertained where there exists
an adequate record for appellate review.</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;">
</span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In S.P., v. M.P.,.--- N.Y.S.3d ----, 2022 WL 16847699
(Mem), 2022 N.Y. Slip Op. 06377 (4<sup>th</sup> Dept.,2022) the Appellate
Division reversed and vacated an<span style="mso-spacerun: yes;"> </span>order
in this<span style="mso-spacerun: yes;"> </span>post-divorce child custody action,
that fined the mother $1,000 upon findings adjudicating her in criminal
contempt pursuant to Judiciary Law § 750 (A) (3). Preliminarily, it<span style="mso-spacerun: yes;"> </span>concluded that the mother’s challenge to the
summary contempt adjudications was properly raised via direct appeal from the
order under the circumstances of this case. Although a direct appeal from an
order punishing a person summarily for contempt committed in the immediate view
and presence of the court ordinarily does not lie and a challenge must
generally be brought pursuant to CPLR article 78 to allow for development of
the record an appeal from such an order is appropriately entertained where, as
here, there exists an adequate record for appellate review. With respect to the
merits it observed that because contempt is a drastic remedy, strict adherence
to procedural requirements is mandated. It found that the court committed
reversible error by failing to afford the mother the requisite opportunity,
after being advised that she was in peril of being adjudged in contempt, to
offer any reason in law or fact why that judgment should not be pronounced.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc120083660"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">“House
Rules” imposed by the Supreme Court in a custody case were misguided and
erroneous even assuming, arguendo, that the court had the authority to impose
such rules</span></a><span style="mso-bookmark: _Toc120083660;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Burns v Greenjan, --- N.Y.S.3d ----, 2022 WL 17075145, 2022 N.Y. Slip Op.
06577(4<sup>th</sup> Dept.,2022) a custody modification and enforcement
proceeding, at an early appearance, the court suggested imposing its “house
rules” on the children and the mother until the children complied with
visitation. Those rules barred the children from many activities, including
leaving the mother’s home except for school and church, using cell phones and
other electronic devices, engaging in any extracurricular activities, and
conversing with, socializing with, or visiting family and friends. Without
holding a hearing, the court issued temporary orders that increased the
father’s visitation time, directed the mother to enforce that visitation, and imposed
the house rules. The mother and the Attorney for the Children (AFC)
subsequently requested that the court remove the house rules and hold a hearing
to evaluate whether the rules and the visitation schedule were in the
children’s best interests. The Appellate Division held, inter alia, that the
court erred in altering the terms of the parties’ custody and visitation
arrangement and in imposing its house rules without conducting a hearing to
determine the children’s best interests. It reinstated the provisions of the
parties agreement and remitted the matter to Supreme Court for a hearing,
including a Lincoln hearing, to determine whether modification of the parties’
custody and visitation arrangement was the children’s best interests. With
respect to the imposition of the court’s house rules on the mother and the
children, it stated that even assuming, arguendo, that the court had the
authority to impose such rules (cf. Ritchie v Ritchie, 184 AD3d 1113, 1115 [4th
Dept 2020]), the record failed to demonstrate that the imposition of the house
rules in this case was in the children’s best interests. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that the court erred in
refusing the AFC’s repeated requests for a Lincoln hearing and in otherwise
declining to consider the children’s views in determining visitation. One of
the parties’ children was a teenager throughout these proceedings, and another
entered his teenage years while this matter was being litigated. Although “
‘the express wishes of children are not controlling, they are entitled to great
weight, particularly where[, as here,] their age and maturity ... make[s] their
input particularly meaningful’ ” With respect to the merits, it is well settled
that “[a] Lincoln hearing serves the vital purpose of allowing a court to
ascertain a child’s preference and concerns, as well as corroborating
information obtained during the fact-finding hearing” .<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected<span style="mso-spacerun: yes;"> </span>the mother’s contention that the findings of
contempt in appeal Nos. 2 and 5 had to be vacated because they were based on
violations of the house rules. It is well settled that an appeal from a
contempt order that is jurisdictionally valid does not bring up for review the
prior order” (Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d
1537, 1538 [4th Dept 2012]). Thus, <span style="mso-spacerun: yes;"> </span>the
mother was bound to adhere to the orders imposing those rules “[however
misguided and erroneous [they] may have been.”<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc120083661"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Service
of orders by the Family Court via email only, which is not a method of service
provided for in Family Court Act § 1113, does not start the time to appeal to
run</span></a><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Bukowski v Florentino, --- N.Y.S.3d ----,
2022 WL 17075465 (Mem), 2022 N.Y. Slip Op. 06606(4<sup>th</sup> Dept.,2022) a
proceeding to modify visitation,<span style="mso-spacerun: yes;"> </span>the
Appellate Division stated that inasmuch as the orders in appeal Nos. 1 and 2
indicated that the grandmother may have been served the orders by the court via
email only, which is not a method of service provided for in Family Court Act §
1113, and the record did not otherwise demonstrate that she was served by any
of the methods authorized by the statute, it could not determine when, if ever,
the time to take the appeals began to run, and thus it could not be said that
the grandmother’s appeals were untimely Similarly, it could not be said that
the grandmother’s appeal in appeal No. 3 was untimely inasmuch as there was no
evidence in the record that the grandmother was served with the order by a
party or the child’s attorney, that she received the order in court, or that
the Family Court mailed the order to her.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc120083662"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Parties
to an appeal are entitled to have the record show the facts as they really
happened at trial, and should not be prejudiced by an error or omission of the
stenographer or the audio recording device</span></a><span style="mso-bookmark: _Toc120083662;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Wagner v Wagner, --- N.Y.S.3d ----, 2022 WL 17075272
(Mem), 2022 N.Y. Slip Op. 06600 (4<sup>th</sup> Dept.,2022), matrimonial
action,<span style="mso-spacerun: yes;"> </span>the Appellate Division reversed
an order denying plaintiffs motion for a reconstruction hearing to reconstruct
portions of the testimony of plaintiff and defendant that could not be
transcribed due to malfunctions of the audio recording system. It held that
parties to an appeal are entitled to have that record show the facts as they
really happened at trial, and should not be prejudiced by an error or omission
of the stenographer or the audio recording device. Here, significant portions
of the testimony of plaintiff and defendant, including testimony related to
child custody and certain other issues, could not be transcribed due to
malfunctions of the audio recording system, which would preclude meaningful
appellate review of those issues. It remitted the matter to Supreme Court to
hold a reconstruction hearing with the parties and any witnesses or evidence
the court deems helpful in reconstructing, if possible, those portions of the
testimony of plaintiff and defendant that could not be transcribed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">November
16, 2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Court deviating from the presumptive amount of
temporary maintenance must explain the reasons for any deviation</span><span lang="EN-CA" style="text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Severny v Severny, --- N.Y.S.3d ----, 2022 WL 16557211
(Mem), 2022 N.Y. Slip Op. 06094 (1st Dept.,2022) the Appellate Division, inter
alia, modified the award of temporary maintenance and remanded for
reconsideration where the court<span style="mso-spacerun: yes;"> </span>followed
the calculations provided in Domestic Relations Law § 236(B)(5–a) to arrive at
a presumptive award of temporary maintenance, but deviated from the presumptive
amount without explaining the reasons for any deviation from the result reached
by the formula factors.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Appellate
Division, Second Department</span><!--[if supportFields]><span lang=EN-CA
style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span> SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="mso-tab-count: 1;"> </span> <o:p></o:p></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">An application for interim counsel fees by the
nonmonied spouse should not be denied or deferred until after the trial,
without good cause, articulated by the court in a written decision. Plaintiff
waived her objections to the defendant’s failure to meet his disclosure
obligations by failing to move for sanctions under CPLR 3126 before filing the
note of issue. </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Fugazy v Fugazy, --- N.Y.S.3d ----, 2022 WL 16626149,
2022 N.Y. Slip Op. 06115 (2d Dept.,2022) in March 2017, the plaintiff commenced
an action for a divorce and filed a note of issue and certificate of readiness
on June 20, 2018. In August 2018, after the defendant moved, inter alia, to
compel the defendant to appear for a further deposition and to produce certain
documents, and for an award of interim counsel fees In an order dated October
3, 2018, the court, inter alia, denied plaintiff’s cross motion to compel
discovery and referred to the trial court her cross motion which was for an
award of interim counsel fees. In November 2018, the defendant moved, inter
alia, to quash subpoenas served by the plaintiff and for a protective order. In
an order dated December 13, 2018, the Supreme Court, among other things,
granted the defendant’s motion. The plaintiff appealed from, inter alia, each
of these orders.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that taking into account all
of the relevant circumstances, the Supreme Court improperly referred to the
trial court that branch of the plaintiff’s cross motion which was for an award
of interim counsel fees (see Domestic Relations Law § 237[a];“Because of the
importance of such awards to the fundamental fairness of the proceedings, ...
an application for interim counsel fees by the nonmonied spouse in a divorce
action should not be denied—or deferred until after the trial, which functions
as a denial—without good cause, articulated by the court in a written
decision”. Here, the court erred in summarily referring that branch of the
plaintiff’s cross motion which was for an award of interim counsel fees to the
trial court, which functioned as a denial of that relief, and failed to
articulate any reasons, much less good cause, for that determination. The
evidence submitted by the plaintiff demonstrated that she was the nonmonied
spouse, as the defendant earned five to seven times more income than the
plaintiff in recent years. While the defendant argues that the plaintiff has
funds available to her, the plaintiff “cannot be expected to exhaust all, or a
large portion, of the finite resources available to her in order to pay her
attorneys, particularly when the [defendant] is able to pay his own legal fees
without any substantial impact upon his lifestyle. In the exercise of
discretion, it awarded interim counsel fees of $75,000 subject to reallocation
at trial if deemed appropriate by the court. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that Supreme Court properly
denied the plaintiff’s motion to compel the defendant to appear for a further
deposition and to produce certain documents. The plaintiff was aware that the
defendant had not responded to the demand for documents or appeared for a further
deposition, yet still filed the note of issue and certificate of readiness
without seeking relief. The plaintiff therefore waived her objections to the
defendant’s failure to meet his disclosure obligations by failing to move for
sanctions under CPLR 3126 before filing the note of issue.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that Supreme Court properly
granted the defendant’s motion which were to quash the plaintiff’s subpoenas
and for a protective order. A subpoena duces tecum may not be used for the
purpose of general discovery or to ascertain the existence of evidence. Rather,
the purpose of a subpoena duces tecum is ‘to compel the production of specific
documents that are relevant and material to facts at issue in a pending
judicial proceeding’. Here, each of the plaintiff’s subpoenas sought
information and documents similar to those sought in the plaintiff’s prior
motion to compel the production of documents, which the court had denied, and
the subpoenas were thus an attempt to circumvent the court’s order and
improperly obtain general discovery.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Matter remitted by Appellate Division to reopen
custody hearing where new developments had arisen since the orders appealed
from were issued</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Baker v James . --- N.Y.S.3d ----, 2022 WL 16626216,
2022 N.Y. Slip Op. 06125 (2d Dept., 2022) the Family Court, inter alia, awarded
the father sole residential custody of the child subject to the mother’s
parenting time as set forth in a parental access schedule. The mother appeals.
The Appellate Division observed that new developments had arisen since the
orders appealed from were issued, which were brought to this Court’s attention
by the attorney for the child and acknowledged by the father. These
developments included the father’s incarceration, allegations of neglect
against the father, and the Family Court’s issuance of an order temporarily
placing the child in the custody of the child’s paternal grandmother. In light
of the new developments the Appellate Division held that the record was no longer
sufficient to review whether the Family Court’s determination regarding custody
and parental access was in the best interests of the child. It remitted the
matter to the Family Court for a reopened hearing to consider these new facts
and thereafter a new determination as to custody and parental access.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Time to take appeal under Family Ct Act § 1113 did
not start to run where the order was emailed to the father’s attorney. The
statute does not provide for service by the court through email or any other
electronic means and therefor the father’s appeal was not untimely.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
Matter of Grayson v. Thomas S., . --- N.Y.S.3d ----, 2022 WL 5402859, 2022 N.Y.
Slip Op. 05649<span style="mso-spacerun: yes;"> </span>(4<sup>th</sup> Dept,
2022)<span style="mso-spacerun: yes;"> </span>the Appellate Division, inter
alia, reversed the finding of neglect agreeing with the father that the
evidence presented at the fact-finding hearing failed to establish by a
preponderance of the evidence that he neglected the child. It rejected the
argument of<span style="mso-spacerun: yes;"> </span>petitioner and the Attorney
for the Child (AFC) that the father did not take his appeal within the time
period allotted by Family Court Act § 1113 and that the appeal should be
dismissed as untimely. It observed that pursuant to Family Court Act § 1113, an
appeal from a Family Court order “must be taken no later than thirty days after
the service by a party or the child’s attorney upon the appellant of any order
from which the appeal is taken, thirty days from receipt of the order by the
appellant in court or thirty-five days from the mailing of the order to the
appellant by the clerk of the court, whichever is earliest.” When service of
the order is made by the court, the time to take an appeal does<span style="mso-spacerun: yes;"> </span>not commence unless the order contains a
statutorily required statement and there is an official notation in the court
record as to the date and the manner of service of the order” (§ 1113; see
Matter of Fraser v. Fraser, 185 A.D.3d 1444, 1445, 128 N.Y.S.3d 713 [4th Dept.
2020]). An appeal as of right is taken by filing the original notice of appeal
with the clerk of the Family Court in which the order was made and from which
the appeal is taken” (§ 1115). Here, there was no evidence in the record that
the father was served with the order of fact-finding and disposition by a party
or the child’s attorney, that he received the order in court, or that the
Family Court mailed the order to the father. Instead, despite using a form
order that provided typewritten check boxes for the two methods of service by
the court mentioned in the statute (i.e., in court or by mail) (see Family Ct
Act § 1113), the court crossed out the word “mailed” and edited the form to
indicate that the order was emailed to, among others, the father’s attorney.
The statute does not provide for service by the court through email or any
other electronic means<span style="mso-spacerun: yes;"> </span>and, contrary to
the assertions of petitioner and the AFC, traditional mail and email are not
indistinguishable. The statute permits court service by mail but does not provide
for such service by electronic means (see § 1113). Inasmuch as the father was
served the order by the court via email, which is not a method provided for in
Family Court Act § 1113, and there was no indication that he was served by any
of the methods authorized by the statute, the time to take an appeal did not
begin to run and the father’s appeal was not untimely.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Comity denied Egyptian Judgment of Divorce where
Notice and opportunity to be heard, were not provided to the Plaintiff wife in
the Egyptian proceeding.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
DAB v MA, --- N.Y.S.3d ----, 2022 WL 16731940, 2022 N.Y. Slip Op. 22341 (Sup
Ct, 2022) the parties to this action for a divorce were citizens of Egypt, and
both were of the Muslim faith. The Defendant moved from Egypt to the United
States on October 7, 2017. Plaintiff moved from Egypt to the United States on
or about April 2019. She resided in Staten Island, New York. He resided in
Queens County. On or about December 2021, Defendant retained an attorney in
Egypt to file a divorce proceeding against the Plaintiff in Egypt. The divorce
was styled as a religious or customary divorce, with the full credit of the
government of Egypt through their Ministry of Justice. While residing in the
United States the defendant<span style="mso-spacerun: yes;"> </span>executed a
power of attorney, granting his attorney authority to represent him in the
Egyptian divorce matter without being present. Defendant contended upon
information and belief that on Wednesday, February 9, 2022, at 7:00 PM in the
presence and under the authority of Abdelrahman Mohammed Jaafar, a legal
authorized Clerk, or government official also known as “Maazoun,” within the
District of Alraml at the “Personal Status Court”, and in the presence of two
adult witnesses, the Defendant (in the within matter) through his attorney,
Mamdouh Ali Ahmed, appeared in person before the Maazoun. According to
Defendant’s counsel, the Egyptian Certificate of Divorce recited that both
parties were Egyptian Nationals with residential addresses in Egypt. The
certificate also stated that “after exhausting all means of arbitration
pursuant to article 40 of the Maazounin code, Husband confirmed that he had
divorced his wife”. The sole requirement was that the Husband utter that he
divorced his wife, before the Maazoun and two witnesses after consummation of
the marriage. Supreme Court held that the Egyptian Divorce Judgment did not
preclude the Supreme Court from adjudicating the underlying divorce complaint
under the laws of New York and in conformity with the principles of comity. It
was uncontroverted that the Plaintiff wife had no notice that the Defendant
husband had engaged a representative to appear before the Maazoun, Ministry of
Justice on his behalf, for the purpose of obtaining a Judgment of Divorce.
Notice and opportunity to be heard, were not provided to the Plaintiff wife in
the Egyptian proceeding. Under these facts, and pursuant to the relevant case
law, comity could not be granted to the Egyptian Certificate of Divorce, nor
did it reach the standard to be granted comity as an in Rem divorce.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Supreme Court Awards Trial Retainer to AFC observing
that . Courts are authorized to direct that a parent who has sufficient
financial means to do so pay some or all of the attorney for the child’s fees</span><span style="text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In JM, v. RM, 2022 --- N.Y.S.3d ----, 2022 WL
16704582, 2022 N.Y. Slip Op. 22339 (Sup Ct.,2022) the Attorney for the Child
moved for an Order: directing that a trial retainer of $15,000 be paid to her
in accordance with the Order of Appointment with regard to the pending trial
which is being scheduled by the Court at the next court appearance., As of the
date of her Affidavit, her retainer had not fully been paid, and there was an
outstanding balance due to her. She argued that if she did not receive a trial
retainer, she will have to spend multiple hours preparing for trial and
participating in same without being paid. She argued that the Defendant has
retained two attorneys since her appointment, but has failed to pay his full
share of her retainer; that the Defendant was the monied spouse; and that her
currently hourly rate is $350 per hour and a $15,000 trial retainer is
appropriate. The Court noted that pursuant to the first Order Appointing an
Attorney for the Child it directed that a $5,000.00 retainer be remitted to the
prior AFC. After she was relieved as counsel the Court issued a second Order
Appointing an Attorney for the Child dated March 29, 2022, appointing this
Attorney<span style="mso-spacerun: yes;"> </span>as the AFC. In that order it
directed that a $4,000.00 retainer be remitted to her. Supreme Court granted
her application pointing out that the child was entitled to representation to
protect its best interests. It observed that courts are authorized to direct
that a parent who has sufficient financial means to do so pay some or all of
the attorney for the child’s fees (citing, inter alia, Matter of Plovnick v.
Klinger, 10 A.D.3d 84, 89, 781 N.Y.S.2d 360 [2004]; see 22 NYCRR 36.4;
Judiciary Law § 35 [3]; Rupp-Elmasri v. Elmasri, 8 A.D.3d 464, 778 N.Y.S.2d 289
[2004])). The Court held that the AFC was entitled to a trial retainer and
that<span style="mso-spacerun: yes;"> </span>trial retainer of $10,000.00 was an
appropriate trial retainer to be paid to the AFC.<span style="mso-spacerun: yes;"> </span>Neither party had been directed to pay 100% of
the AFC’s fees or this trial retainer, and instead are paying it pursuant to
the Order of Appointment, which was 70% by the Defendant and 30% by the
Plaintiff.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The party seeking to restore an action to the
calendar after it is dismissed has the burden of establishing “good cause” for
the delay</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In
Iyageh v Iyageh, --- N.Y.S.3d ----, 2022 WL 14725215, 2022 N.Y. Slip Op. 22327
(Sup. Ct.,2022) the Court denied the motion to restore a matter to the calendar
where there were no unemancipated children and neither party submitted a
judgment of divorce for twelve (12) years after they entered into a stipulation
of settlement and proceeded to inquest. Supreme Court observed that pursuant to
22 NYCRR § 202.48 (a), a proposed judgment or order that must be settled or
submitted on notice must be signed within 60 days of the decision’s signing and
filing. Pursuant to 22 NYCRR § 202.48 (b), when parties fail to submit an order
or judgment in a timely manner their action is to be deemed abandoned, unless
there is good cause reason for the delay. Pursuant to CPLR § 3404, Supreme
Court cases that are struck from the calendar and not restored within one (1)
year are deemed abandoned and dismissed without costs for neglect to prosecute.
A dismissed action may be restored to the calendar beyond the one (1) year of
the statute if the plaintiff establishes a reasonable excuse for the failure to
prosecute the action and a lack of prejudice to the defendants (Cawthon v.
Cawthon, 276 A.D.2d 661, 661, 714 N.Y.S.2d 335 [2d Dept. 2000]).<span style="mso-spacerun: yes;"> </span>The party seeking to restore an action to the
calendar after it is dismissed has the burden of establishing “good cause” for
the delay (Madigan v. Klumpp, 173 A.D.2d 593, 593—94, 570 N.Y.S.2d 176 [2d
Dept. 1991][the Appellate Division found that the husband failed to show good
cause for not submitting the judgment of divorce for over a year where he
asserted he believed the wife was responsible for filing]; see also Seeman v.
Seeman, 154 A.D.2d 584, 585—86, 546 N.Y.S.2d 413 (2d Dept. 1989)[no good cause
found where law firm misplaced or forgot to file the judgment of divorce for
more than two (2) years]). Here, plaintiff offered no explanation for his
failure to file a proposed judgment of divorce packet for twelve (12) years.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Links to Statewide Appellate Division Rules of
Practice, Electronic Filing Rules and Local Rules (As of November 20, 2022)</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><a href="https://www.nycourts.gov/courts/ad2/pdf/Practice%20Rules%20of%20the%20Appellate%20Division.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;">Appellate Division Statewide Rules of Practice (22 NYCRR Part 1250) (As
amended November 25, 2019)</span></b></a><span class="MsoHyperlink"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p></o:p></span></b></span></span></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><a href="https://www.nycourts.gov/courts/ad2/pdf/efilingrules.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;">Appellate Division
Statewide Electronic Filing Rules (Part 1245) (December 12, 2017)</span></b></a><span class="MsoHyperlink"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p></o:p></span></b></span></span></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1><span style="font-family: arial;"><span style="color: black; font-size: 11pt; line-height: 141%; mso-themecolor: text1;">Appellate Division First Department – </span><span style="color: black; font-size: 11pt; line-height: 141%;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span class="pagetitletight"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11pt; letter-spacing: 0.6pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p style="background: white; margin: 0in;"><span style="font-family: arial;"><span style="color: black; mso-color-alt: windowtext;"><a href="https://www.nycourts.gov/courts/ad1/Practice&Procedures/rules.shtml"><b><span style="color: black; font-size: 11pt;">Appellate Division Rules of Practice of the First Department - (22
NYCRR) Part 600</span></b></a></span><span class="MsoHyperlink"><b><span style="color: black; font-size: 11pt;"><o:p></o:p></span></b></span></span></p>
<p style="background: white; margin: 0in;"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin: 0in; mso-outline-level: 1;"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">Appellate Divison Second Department -<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><a name="_Hlk119843673"></a><a href="https://www.nycourts.gov/courts/ad2/pdf/Local_Rules.pdf" target="_blank"><span style="mso-bookmark: _Hlk119843673;"><span style="color: black; font-size: 11pt; mso-themecolor: text1;">Appellate Division Rules of Practice of the Second
Department (22 NYCRR 670) (As amended July 1, 2020)</span></span><span style="mso-bookmark: _Hlk119843673;"></span></a><span style="mso-bookmark: _Hlk119843673;"><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk119843673;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk119843673;"></span><a href="https://www.nycourts.gov/courts/ad2/efiling/Technical_Guidelines_for_Efiled_Matters.pdf"><span style="mso-bookmark: _Hlk119843673;"><span style="color: black; font-size: 11pt; mso-themecolor: text1;">Appellate Divison Second Department E-filing Technical
Guidelines</span></span></a><span style="mso-bookmark: _Hlk119843673;"><span class="MsoHyperlink"><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p></o:p></span></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk119843673;"><span class="MsoHyperlink"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></b></span></span></p>
<h1><span style="font-family: arial;"><span style="mso-bookmark: _Hlk119843673;"><span style="color: black; font-size: 11pt; line-height: 141%; mso-themecolor: text1;">Appellate<span style="mso-spacerun: yes;"> </span>Division, Third Department – </span></span><span style="mso-bookmark: _Hlk119843673;"><span style="color: black; font-size: 11pt; line-height: 141%;"><o:p></o:p></span></span></span></h1>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk119843673;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk119843673;"></span><a href="https://www.nycourts.gov/ad3/RulesOfPracticePart850.pdf"><span style="mso-bookmark: _Hlk119843673;"><span style="color: black; font-size: 11pt; mso-themecolor: text1;">Appellate Division Rules of Practice in the Third
Department (Part 850) (As amended July 15, 2022) </span></span></a><span style="mso-bookmark: _Hlk119843673;"><span class="MsoHyperlink"><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p></o:p></span></span></span></b></span></p>
<p style="background: white; margin: 0in;"><span style="mso-bookmark: _Hlk119843673;"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p style="background: white; margin: 0in; mso-outline-level: 1;"><span style="mso-bookmark: _Hlk119843673;"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">Appellate Divison, Fourth
Department - <o:p></o:p></span></span></b></span></p>
<p style="background: white; margin: 0in;"><span style="mso-bookmark: _Hlk119843673;"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p style="background: white; margin: 0in; mso-outline-level: 1;"><span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk119843673;"></span><a href="https://www.nycourts.gov/courts/ad4/Clerk/Part1000-LocalPracticeRules.pdf"><span style="mso-bookmark: _Hlk119843673;"><span style="color: black; font-size: 11pt;">Appellate Division Rules
of Practice in the Fourth Department (22 NYCRR Part 1000) (As amended August 4,
2022)</span></span></a><span style="mso-bookmark: _Hlk119843673;"><span class="MsoHyperlink"><span style="color: black; font-size: 11pt;"><o:p></o:p></span></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk119843673;"><span class="MsoHyperlink"><b><span style="color: black; mso-themecolor: text1;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></b></span></span></p>
<span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk119843673;"></span>
</b></span><p class="MsoNormal"><span class="MsoHyperlink"><b><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></b></span></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><u><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">November
1, 2022<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Court of Appeals<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="background: white;"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Court of Appeals holds that the Interstate Compact on
the Placement of Children (ICPC) does not apply to out-of-state, noncustodial
parents seeking custody of their children who are in the custody of New York
social services agencies.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="background: white;"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
the Matter of D.L., v. S.B.<span style="mso-spacerun: yes;"> </span>--- N.E.3d
----, 2022 WL 14123151, 2022 N.Y. Slip Op. 05940 (2022) the Court of Appeals
held that the Interstate Compact on the Placement of Children (ICPC) an
agreement among the states to follow certain procedures in connection with
sending children across state borders “for placement in foster care or as a
preliminary to a possible adoption” (Social Services Law § 374–a [1] [art III]
[a]) does not apply to out-of-state, noncustodial parents seeking custody of
their children who are in the custody of New York social services agencies.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Petitioner father, a North Carolina resident, and
respondent mother, a New York resident, were the parents of the subject child.
In 2012, respondent Suffolk County Department of Social Services (DSS) removed
the child from the custody of mother, who admitted neglecting the child, and
placed the child in foster care. Father exercised his right to appear in the
neglect proceeding and, in 2013, an application was made under the ICPC to
North Carolina for the approval of father’s home in that state as a suitable
placement for the child. The relevant North Carolina authority denied the ICPC
request. The child remained in foster care with the goal of reunification with
mother and, according to father, he maintained contact with and continued to
visit with the child. Thereafter, in 2017, the father commenced these custody
proceedings, arguing that it was in the child’s best interests to award him
sole custody. DSS argued that the child could not be placed with father in
light of the North Carolina authority’s 2013 refusal to consent to the
placement. Family Court dismissed father’s petitions without conducting a
hearing. It held in pertinent part that the requirements of the ICPC applied to
placement of the child with father, even though he was an out-of-state
noncustodial parent, because the child was in the custody and care of DSS in
New York. The Appellate Division affirmed (183 A.D.3d 565, 121 N.Y.S.3d 644
[2nd Dept. 2020]), holding that Family Court properly determined that the ICPC
applied because “the child was in the custody of DSS and ... father resided in
North Carolina” The Court concluded that the petitions for custody were
correctly dismissed without a hearing inasmuch as the relevant North Carolina
authority denied approval of father’s 2013 ICPC request. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Court of Appeals reversed. It observed that the ICPC
is an agreement among the 50 states, the District of Columbia, and the U.S.
Virgin Islands. It is a non-federal agreement and is “construed as state law”
in each adopting state (McComb v. Wambaugh, 934 F.2d 474, 479 [3d Cir
1991]).The ICPC governs the “interstate placement of children” (Social Services
Law § 374–a [1] [art I]). The ICPC provides at the outset that it applies when
a state agency seeks to send children to a receiving state to be placed in
foster care or for possible adoption. Specifically, article III of the ICPC
provides: “(a) No sending agency shall send ... into any other party state any
child for placement in foster care or as a preliminary to a possible adoption
unless the sending agency shall comply with each and every requirement set
forth in this article ...“(b) Prior to sending ... any child ... 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 ...” (emphasis added). (Social Services
Law § 374–a [art III] [a], [b]). “Placement,” in turn, is defined as “the
arrangement for the care of a child in a family free or boarding home or in a
child-caring agency or institution” (id. § 374–a [art II] [d]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Court of Appeals<span style="mso-spacerun: yes;">
</span>observed that by its terms, the ICPC governs the out-of-state “placement”
of children “in foster care or as a preliminary to possible adoption” (Social
Services Law § 374–a [1] [art III] [a] & [b]). The language of the statute
thus unambiguously limits its applicability to cases of placement for foster
care or adoption—which are substitutes for parental care that are not
implicated when custody of the child is granted to a noncustodial parent.
Applying the ICPC to noncustodial parents would be inconsistent with the
statutory requirement that, when a child is placed pursuant to the ICPC, “[t]he
sending agency shall continue to have financial responsibility for support and
maintenance of the child during the period of the placement” (Social Services
Law § 374–a [1] [art V] [a]). As the United States Court of Appeals for the
Third Circuit observed, “[t]o construe the return of a child to [a] parent as a
‘placement’ within the Compact would result in the anomalous situation of
imposing a financial obligation upon a sending state that supersedes parents’
duty to support their children” (McComb, 934 F.2d at 480). There is nothing in
the statutory language to indicate that the ICPC was intended to apply to
out-of-state parents seeking custody of their children and the statutory text
confines application of the ICPC to children placed in foster care or
preliminary adoptive homes. It noted that its decision in Matter of Shaida W.,
85 N.Y.2d 453, 626 N.Y.S.2d 35, 649 N.E.2d 1179 [1995]) did not compel a
contrary conclusion. In that case, the question before the Court was whether the
ICPC applied when children, who were in the care and custody of a New York
social services agency, were taken to another state by their grandmother after
the agency placed the children into temporary foster care with the grandmother.
Although article VIII(a) provides that the ICPC does not apply to “[t]he
sending or bringing of a child into a receiving state by [a] parent,
step-parent, grandparent, adult brother or sister, adult uncle or aunt, or [a]
guardian and leaving the child with any such relative or non-agency guardian in
the receiving state” (Social Services Law § 374–a [1] [art VIII] [a]), it
explained that “the children were not legally ‘sent’ to California by their
grandmother”. Rather, “[t]he official custodian” of the children was the
“Department of Social Services of New York City,” and it was the agency that
“authorized the children to be ‘sent’ ” to California within the meaning of the
statute. That is, the children were sent by a social services agency to a
“kinship foster care placement” in another state and, as such, this Court
concluded that the ICPC applied. Here, in contrast, placing a child with an
out-of-state parent did not involve foster care or adoption and, thus, Shaida
W. did<span style="mso-spacerun: yes;"> </span>not control. The Court pointed
out that its reading of the ICPC as being applicable only to placement of a
child for foster care or as a preliminary to adoption, and not to custody of a
noncustodial parent, comports with the intent reflected in the Compact’s
legislative history and the underlying statutory purpose. Although the ICPC
does not apply to placement with a parent, the Family Court Act contains other
effective means to ensure the safety of a child before awarding custody to an
out-of-state parent. Family Court retains jurisdiction over custody proceedings
and has a broad array of powers under the Family Court Act to ensure a child’s
safety.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">DRL § 237, applies to parties litigating the issue of
standing as a “parent” under DRL § 70. Where the award was issued toward the
end of litigation and covered almost all of respondent’s claimed counsel fees,
it was, in effect, a final order and<span style="mso-spacerun: yes;">
</span>Petitioner was entitled to an evidentiary hearing as to the extent and
value of respondent’s counsel fees</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Gunn v Hamilton, --- N.Y.S.3d ----, 2022 WL
10207780, 2022 N.Y. Slip Op. 05790 (1<sup>st</sup> Dept.,2022) the Appellate
Division pointed out that in Matter of Kelly G. v. Circe H., 178 A.D.3d 533,
117 N.Y.S.3d 171 (1st Dept. 2019) it determined that Domestic Relations Law §
237, in consonance with the Court of Appeals’ decision in Matter of Brooke S.B.
v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), applies
to parties litigating the issue of standing as a “parent” under Domestic
Relations Law § 70. It agreed with petitioner that the motion court’s framing
of the counsel fee award as an “interim” order was incorrect. Given that the
award was issued toward the end of litigation and covered almost all of
respondent’s claimed counsel fees, costs, and expenses, approximately $2.7
million, it found that the fee award was, in effect, a final order.
Accordingly, petitioner, who vigorously challenged the motion, was entitled to
an evidentiary hearing as to the extent and value of respondent’s counsel fees.
It vacated the order and remand the matter to the motion court for an
evidentiary hearing on reasonable counsel fees.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division also vacated the finding of
criminal contempt premised on petitioner’s noncompliance with a June 28, 2021
order. Even if the order were not vacated, the procedural defects apparent in
this proceeding warranted reversal. The record made clear that the court held a
criminal contempt proceeding. Accordingly, petitioner was entitled to the same
rights afforded a criminal defendant, including a right to be heard, to have
her guilt proven beyond a reasonable doubt, and to meaningful representation of
counsel. Petitioner did not receive the benefit of these procedural safeguards.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>Respondent was
not denied due process when the Family Court sua sponte conformed the petition
to the proof adduced during the fact-finding hearing</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Matter of Jose
M. R., v. Arian S., --- N.Y.S.3d ----, 2022 WL 10207779, 2022 N.Y. Slip Op.
05816 (1<sup>st</sup> Dept.,2022) a family offense proceeding the Appellate
Division held that Respondent was not denied due process when the Family Court
sua sponte conformed the petition to the proof adduced during the fact-finding
hearing, as he could not have been surprised or prejudiced by his own
admissions (see Matter of Oksoon K. v. Young K., 115 AD3d 486, 487 [1st Dept
2014], lv denied, 24 NY3d 902 [2014] ).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">A parent who has complied with the recommended
service plan has failed to plan for the child’s future if she “fails to gain
insight into her parenting problems or take responsibility for the issues that
prompted foster care placement in the first place.</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of
Patrice H. W., --- N.Y.S.3d ----, 2022 WL 10207773, 2022 N.Y. Slip Op. 05820 (1<sup>st</sup>
Dept.,2022) the Appellate Division found that the finding of permanent neglect
with respect to the child Patrice was supported by clear and convincing
evidence. Respondent failed to plan for the child, evidenced by her refusal to
acknowledge the problems that led to the foster care placement of the child in
the first place, blaming the children, the biological mother, and the agency
and denying that the children were subject to sexual abuse. Regardless of
whether a parent has complied with the recommended service plan, she has failed
to plan for the child’s future if she “fails to gain insight into her parenting
problems or take responsibility for the issues that prompted foster care
placement in the first place.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Finding of neglect against the mother was supported
by evidence establishing that she refused to enforce a final order of
protection issued against her boyfriend and in favor of the child in a prior
neglect proceeding</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
Matter of Taveon J.,--- N.Y.S.3d ----, 2022 WL 4830386, 2022 N.Y. Slip Op.
05512 (1st Dept.,2022) the Appellate Division found that the finding of neglect
against the mother was supported by a preponderance of the evidence establishing
that she placed the children’s physical and psychological safety in imminent
risk of impairment by refusing to enforce a final order of protection issued
against her boyfriend and in favor of the child Taveon in a prior neglect
proceeding. Taveon, who was then 11 years old, was heard crying on a tape of a
911 call, in which he reported that the mother’s boyfriend allegedly choked her
and then threatened to kill Taveon; the caseworker also testified that Taveon
was crying at the police station after the incident. This evidence established,
among other things, that the mother risked Taveon’s emotional health by failing
to enforce the order of protection issued on his behalf.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><br />
Where a material term of a stipulation is<span style="mso-spacerun: yes;">
</span>left for future negotiations the agreement<span style="mso-spacerun: yes;"> </span>constituted “a mere agreement to agree,” is
unenforceable</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Pinto v Pinto, --- N.Y.S.3d ----, 2022 WL 6850257,
2022 N.Y. Slip Op. 05728 (2d Dept.,2022) the parties stipulation of
settlement<span style="mso-spacerun: yes;"> </span>that was incorporated, but
not merged, into the judgment of divorce recited that it was the parties’
intention that the children would attend college, and provided that the
children, with both parties’ cooperation, would apply for “merit and need based
financial aid” to cover the cost of attending college. The stipulation further
provided that, “should there be necessary costs and expenses once financial
aid, merit aid and scholarships are exhausted[,] the parties shall consult and
try to reach an agreement on payment of these cost[s] and expenses at the time
those cost[s] and expenses arise. If the parties cannot agree they can address
the issue in a Court of competent jurisdiction.” <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In 2019, the plaintiff moved, inter alia, in effect, to
direct the defendant to reimburse the plaintiff for the repayment of one-half
of the total amount of the student loans incurred for the payment of the
college costs and expenses for the parties’ children, based on the above-quoted
provision of the stipulation. The plaintiff<span style="mso-spacerun: yes;">
</span><span style="mso-spacerun: yes;"> </span>averred, inter alia,<span style="mso-spacerun: yes;"> </span>with the defendant about her contributing to
the cost of the children’s education on at least two occasions while the
children were attending college, and the defendant deferred discussion of the
matter to a later time.<span style="mso-spacerun: yes;"> </span>The defendant
averred that the parties consulted with each other on the issue of the
children’s college expenses, that they agreed that the plaintiff would pay
those expenses, and that the plaintiff did so. Supreme Court, denied
plaintiff’s motion. The Appellate Division affirmed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that the provision of the
stipulation upon which the plaintiff relied in seeking reimbursement from the
defendant required only that “the parties shall consult and try to reach an
agreement on payment of [the children’s college-related] cost[s] and expenses.”
This provision did not identify an amount or percentage of such costs or
expenses to be paid by either party, and did not impose an obligation upon
either party to make any such payment. Rather, “a material term [was] left for
future negotiations” (Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52
N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). Thus, the subject provision
constituted “a mere agreement to agree,” and, as such, was unenforceable (id. at
109, 436 N.Y.S.2d 247, 417 N.E.2d 541; see Silverman v. Silverman, 249 A.D.2d
378, 379, 671 N.Y.S.2d 145; Flanel v. Flanel, 152 A.D.2d 536, 543 N.Y.S.2d
501).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Where there is no right to counsel pursuant to FCA §
262, claims of ineffective assistance of counsel in civil litigation will not
be entertained absent extraordinary circumstances </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Buljeta v Fuchs, --- N.Y.S.3d ----, 2022 WL
6849583, 2022 N.Y. Slip Op. 05687 (2d Dept.,2022) the Appellate Division held
that situations where there is no statutory right to counsel pursuant to Family
Court Act § 262, claims of ineffective assistance of counsel in the context of
civil litigation will not be entertained where extraordinary circumstances are
absent (see Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d
942, 943, 53 N.Y.S.3d 130; Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048,
983 N.Y.S.2d 892).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Where the father’s<span style="mso-spacerun: yes;">
</span>failure to pay child support is not willful a money judgment should be
entered in favor of the mother for the amount of child support arrears</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of Santman v Schonfeldt, --- N.Y.S.3d ----, 2022 WL 6846934 (Mem), 2022
N.Y. Slip Op. 05693 (2 Dept.,2022) a child support enforcement proceeding,<span style="mso-spacerun: yes;"> </span>the Family Court denied the petition and
dismissed the proceeding. The Appellate Division found that the mother
presented evidence that the father had made only one child support payment
during the relevant period, and that he owed basic child support of $19,591.43.
Therefore, the mother met her prima facie burden. The father testified, and
presented proof, that he intended to pay, but his employer and/or the Support
Collection Unit had not properly followed through with the wage garnishment
procedure. The Support Magistrate found the father’s testimony credible. The
Appellate Division held that under the circumstances of this case, the father’s
showing was sufficient to establish that his failure to pay was not willful. Nevertheless,
as there was competent proof at the hearing that the father failed to obey a
lawful order of child support (see Family Ct Act § 454[1]), a money judgment
should have been entered in favor of the mother for the amount of child support
arrears that accrued during the relevant period (see Family Ct Act<span style="mso-spacerun: yes;"> </span>§§ 454[2][a]; 460[1]). It remitted the matter
to the Family Court, for the entry of an appropriate money judgment.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Denial of husbands pendente lite motion to sell
portion of wine collection to pay marital debt<span style="mso-spacerun: yes;">
</span>was in keeping with purposes of DRL § 236(B)(2)(b)(1), to preserve the
status quo and to ensure that neither party would be prejudiced</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL
10781782 (Mem), 2022 N.Y. Slip Op. 05835 (2d Dept.,2022) in July 2018, the
plaintiff commenced this action for a divorce. In October 2018, the Supreme
Court denied the defendants motion inter alia, for permission to sell a portion
of the parties’ wine collection pendente lite in order to pay marital debt and
expenses. The Appellate Division affirmed. It observed that Domestic Relations
Law § 236(B)(2)(b)(1) provides, in pertinent part, that during the pendency of
a matrimonial action, “neither party shall sell ... or in any way dispose of,
without ... consent of the other party in writing, or by order of the court,
any property (including ... personal property ...) individually or jointly held
by the parties, except in the usual course of business, for customary and usual
household expenses or for reasonable attorney’s fees in connection with this
action.” The record supported the Supreme Court’s determination The parties’
affidavits submitted in connection with the motion reflected factual disputes
regarding, inter alia, the size and estimated value of the wine collection, the
parties’ past course of conduct during the marriage with respect to sales from
the wine collection, and the parties’ respective alleged irresponsibility or
responsibility with regard to household finances. In light of these factual
disputes, denial of the subject branch of the motion was appropriate and in
keeping with the statutory purposes of Domestic Relations Law §
236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party
would be prejudiced by the potential “unilateral dissipation of marital
assets”.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Second Department reiterates rule that modifications
of pendente lite awards should rarely be made by an appellate court and then
only under exigent circumstances</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10778464
(Mem), 2022 N.Y. Slip Op.<span style="mso-spacerun: yes;"> </span>(2d
Dept.,2022) the parties were married in 2008 and had two children. In July
2018, the plaintiff commenced the action for a divorce. In an order dated
January 4, 2021, the Supreme Court, inter alia, granted the plaintiff’s motion
for an award of pendente lite child support to the extent of directing the
defendant to pay pendente lite child support in the sum of $5,059 per month,
retroactive pendente lite child support in the sum of $40,472 at a rate of
$1,700 per month, and 100% of the children’s add-on expenses. The Appellate
Division affirmed. It held that<span style="mso-spacerun: yes;">
</span>modification of the pendente lite child support award was not warranted.
Modifications of pendente lite awards should rarely be made by an appellate
court and then only under exigent circumstances, such as where a party is
unable to meet his or her financial obligations or justice otherwise requires.
Any perceived inequity in the award of pendente lite child support can best be
remedied by a speedy trial, at which the parties’ financial circumstances can
be fully explored. The defendant failed to demonstrate the existence of any
exigent circumstances warranting a modification of the pendente lite child
support award made by the Supreme Court.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Presumption that visitation with a noncustodial
parent is in the best interests of the child, may be overcome where the party
opposing visitation sets forth compelling reasons and substantial evidence that
such visitation would be detrimental or harmful to the child’s welfare</span><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Ajmal I v Latoya J, ---
N.Y.S.3d ----, 2022 WL 11379771, 2022 N.Y. Slip Op. 05912 (3d Dept.,2022)
pursuant to a February 2012 order, the mother was awarded sole legal and
physical custody of the child, while the father, who had failed to appear was
granted the right to petition for custody and/or visitation in the future. The
father left New York in 2009 and had not resided in the state since. The
parties’ relationship had generally been tense. Given the father’s prior
menacing and assaultive behavior toward the mother, she remained afraid of him
and refused to give him her address. In November 2019, the mother learned that
the father had offered money on social media to anyone who gave him the mother’s
address, then posted that he had obtained the address and would “[s]ee [her]
soon.” The mother filed a family offense petition seeking an order of
protection against the father. The father responded by filing a custody
modification petition and seeking, for the first time since the issuance of the
2012 custody order, visitation with the child. Family Court issued an order of
protection in favor of the mother. Family Court then conducted a fact-finding
hearing on the father’s modification petition, and granted the<span style="mso-spacerun: yes;"> </span>father two hours of supervised visitation. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division agreed with the mother and the
attorney for the child that there was no basis for the award of visitation
here. It reversed and dismissed the father’s petition in its entirety.<span style="mso-spacerun: yes;"> </span>It held that while visitation with a
noncustodial parent is presumed to be in the best interests of the child, that
“presumption may be overcome where the party opposing visitation sets forth
compelling reasons and substantial evidence that such visitation would be
detrimental or harmful to the child’s welfare. This standard of substantial
proof should not be interpreted in such a way as to heighten the burden, of the
party who opposes visitation, to rebut the presumption by a preponderance of
the evidence. ( Matter of Granger v. Misercola, 21 N.Y.3d 86, 92, 967 N.Y.S.2d
872 [2013]). As such, the party opposing visitation will meet his or her burden
with sworn testimony or documentary evidence that visitation would be harmful
to the child or that the noncustodial parent has forfeited the right of access.
It was undisputed that the father had not lived with the child in over a decade
and had only infrequently visited the child due to, among other things, his
moving out of the area and frequently relocating around the United States. The
father made no effort to seek a formal award of visitation until 2019, more
than seven years after the issuance of the 2012 custody order and over two
years after he had last seen the child. This failure by the father to seek a
visitation order or otherwise “avail himself of opportunities for visitation
over a lengthy period of time<span style="mso-spacerun: yes;"> </span>is
appropriately taken into account in considering whether visitation is
appropriate. Moreover, the mother testified as to how the father behaved in an
irresponsible and harmful manner on the occasions when he did interact with the
child. The mother described how, during a 2014 visit with the child during his
winter break from school, the father cut off contact with her and left the
child with relatives so that he could attend a party and travel to New York
City, leaving the mother unaware of the child’s whereabouts until the child
called her several days later. The father did not see the child again until a
2017 family trip to an amusement park, and the mother testified that he upset
the child then by, among other things, live streaming the visit, including the
child’s personal conversations, over social media. The mother further set forth
how the father did not have frequent electronic contact with the child after
that visit and, when that contact did occur, the child was upset by it. The
attorney for the child confirmed that the teenage child was upset by
interactions with the father for a variety of reasons and did not wish to see
him. The child’s preference to have no in-person contact with the father was
not dispositive, but is entitled to “considerable weight” given the child’s age
. The foregoing satisfied the mother’s burden of establishing that any
visitation with the father would be harmful to the child.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Change in circumstances standard does not apply where
the parties’ separation agreement was never memorialized in a court order or
otherwise judicially sanctioned. Fundamental purpose” of Lincoln hearing is to
ascertain a child’s preferences and concerns.</span><span style="text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span> <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Theodore P v Debra P, 2022 WL 11378159 (3d Dept.,2022)
pursuant to a March 2018 separation agreement, which was to be incorporated but
not merged into a subsequent judgment of divorce, the parties agreed to joint
legal custody of the child and to share physical custody on a “substantially equal
basis in a mutually acceptable manner.” The father commenced a divorce action
in November 2019 requesting that relief, while the mother sought sole legal and
physical custody. The Appellate Division rejected the father’s argument that
the Supreme Court erred in proceeding directly to a best interests analysis
without first considering whether a change in circumstances occurred since
execution of the separation agreement. A party seeking to modify a judicially
sanctioned custody arrangement must make a threshold showing of a change in
circumstances that warrants an inquiry into whether modification of the
arrangement is in the child’s best interests. However, that standard does not
apply where the parties’ separation agreement was never memorialized in a court
order or otherwise judicially sanctioned. As such, the separation agreement was
but a factor to consider in resolving the custody dispute. It followed that the
court did not err in denying the father’s motion for a directed verdict based
upon the mother’s alleged failure to demonstrate changed circumstances.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected the fathers argument that
Supreme Court abused its discretion in holding a Lincoln hearing because there
was no trial testimony requiring corroboration by the child. Corroboration of
trial testimony and documentary evidence may be “a recognized purpose of a
Lincoln hearing,” but the “fundamental purpose” of such a hearing “is to
ascertain a child’s preferences and concerns.” It concluded that the Lincoln
hearing was a provident exercise of the court’s discretion.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Supreme Court holds that in determining the best
interests of a companion animal under DRL § 236 [B] [5] [d] [15], the reviewing
court should consider the totality of circumstances by weighing relevant
factors applicable to the care of a companion animal</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In L.B., v. C.C.B., --- N.Y.S.3d ----, 2022 WL 7855133,
2022 N.Y. Slip Op. 22320 (Sup Ct, 2022) an action for a divorce the parties
were married for ten years. The Supreme Court pointed out that the sole
significant asset contested by the parties was<span style="mso-spacerun: yes;">
</span>custody and possession of their two dogs. It observed that effective
October 25, 2021, DRL § 236 [B] [5] [d] [15] provides the<span style="mso-spacerun: yes;"> </span>standard to apply in pet custody cases. It<span style="mso-spacerun: yes;"> </span>requires courts to consider “the best
interest” of a companion animal when awarding possession in a divorce or
separation proceeding. It held that in determining the best interests of a
companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court
should consider the totality of circumstances by weighing relevant factors
applicable to the care of a companion animal. Salient factors for a court to
consider include: the involvement, or absence, of each party in the companion
animal’s day-to-day life; the availability and willingness of each party to
care for the companion animal; each party’s involvement in health and
veterinary care decisions; the quality of each party’s respective home
environment; the care and affection shown towards the companion animal; and
each party’s fitness and caretaking abilities. No single factor is dispositive.
It held that in determining equitable distribution of the parties’ companion
animals, the court was guided by what is in the doges best interest. In weighing
the factors relevant to the dogs best interest, the court must also evaluate
the testimony, character, and sincerity of all the parties involved (citing
“see generally” Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).
After weighing the factors that would further the dogs best interest, including
factors such as which party was primarily responsible for their day-to-day
needs and for maintaining their health and veterinary care; which party, if
any, spends more time with the dogs on a regular basis; and the quality of the
home environment as one in which the dogs would “live, prosper, love and be
loved,” as well as evaluating the testimony, character and sincerity of the
parties, the court found that it was in the dogs best interest to remain
together in Defendant’s sole care. The care and custody of the parties’
Rottweilers was awarded to Defendant.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span><span style="letter-spacing: -0.05pt;">Administrative Order AO/141a/22 </span>Amended
New Rules Governing Matrimonial Actions</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 31.55pt;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">22
NYCRR 202.16, 22 NYCRR <span style="mso-font-width: 105%;">202.16-a,<span style="mso-spacerun: yes;"> </span>22 NYCRR 202.16-b, and 22 NYCRR 202.18 </span>of
the Uniform Rules for the Supreme Court and the County Court (“Uniform Rules”)
are the “matrimonial rules”. Effective July 1, 2022, 22 NYCRR 202.16 (the
matrimonial rules) were revised to, among other things specifically incorporate
22 NYCRR Part 202 (See AO142/22, amended on June 13, 2022) which contains<span style="letter-spacing: 0.05pt;"> many of the commercial division rules </span><span style="color: black; mso-themecolor: text1;">effective February 1, 2021. <o:p></o:p></span></span></span></b></p>
<p class="MsoNormal" style="text-indent: 31.55pt;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 31.55pt;"><span style="font-family: arial;"><b><span style="font-size: 11pt;">On
July 27, 2022, Administrative Order<span style="mso-spacerun: yes;"> </span><span style="letter-spacing: -0.05pt;">AO/141a/22 revised</span></span></b><b><span style="font-size: 11pt; letter-spacing: -0.05pt;"> </span></b><b><span style="font-size: 11pt;">the Uniform Civil Rules
for the Supreme Court and the County Court<span style="mso-spacerun: yes;">
</span>including harmonization with the rules governing matrimonial actions
effective immediately to<span style="mso-spacerun: yes;"> </span>supersede
solely the provisions of AO/270/20 that are inconsistent with its terms and
provisions.<span class="field"><span style="color: #262626;"> The revision
corrected typographical errors in AO/141/22.</span></span><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Administrative order AO 370/21, amended Rules
Governing the Consensual Electronic filing Matrimonial Actions</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="margin-bottom: 12pt; mso-margin-top-alt: auto; text-indent: 0.5in;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Administrative order AO 370/21, effective December 21, 2021, contains
the current list of counties in which e-filing is permitted in matrimonial
actions. Except as otherwise required by AO 370/21 or its Appendix B, the
consensual e-filing rules in 22 NYCRR § 202.5-b apply.<span style="mso-spacerun: yes;"> </span>Appendix B, effective December 21, 2021
contains amended Rules Governing the Consensual Electronic filing of
Matrimonial Actions in the Supreme Court.<o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc118643396"><span style="color: black; font-size: 11pt; mso-themecolor: text1; text-decoration: none; text-underline: none;">Matrimonial actions</span></a><span style="mso-bookmark: _Toc118643396;"></span><span style="color: black; font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Matrimonial actions are defined in
Administrative order AO 370/21, Appendix B as those actions set forth in CPLR §
105(p) and Domestic Relations Law § 236, as well as plenary actions for child
support, custody or visitation, an order of protection or an application under
the Child Parent Security Act where: the action is contested, and addresses
issues including, but not limited to, alimony, counsel fees, pendente lite,
maintenance, custody and visitation, child support or the equitable
distribution of property or the action is uncontested; or the action is a
post-judgment application that either (1) addresses an underlying matrimonial
action that was commenced electronically, or (2) is electronically initiated
with the purchase of a new index number. <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="margin-bottom: 12pt; mso-margin-top-alt: auto; text-indent: 0.5in;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">No papers or documents filed by electronic means In matrimonial actions
are available to the public. The existing personal service requirements in the
domestic relations law, family court act, or civil practice law and rules are
not abrogated. <o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc118643397"><span style="color: black; font-size: 11pt; mso-themecolor: text1; text-decoration: none; text-underline: none;">Forensic evaluations may not be efiled</span></a><span style="mso-bookmark: _Toc118643397;"></span><span style="color: black; font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="margin-bottom: 12pt; mso-margin-top-alt: auto; text-indent: 0.5in;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Unless otherwise directed by the court, evaluations or investigations of
the parties or a child by a forensic mental health professional (including
notes) and reports by a probation service or child protective service in
proceedings involving custody, visitation, neglect or abuse and other matters
involving children may not be filed electronically. <o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc118643398"><span style="color: black; font-size: 11pt; mso-themecolor: text1; text-decoration: none; text-underline: none;">Matrimonial post-judgment applications</span></a><span style="mso-bookmark: _Toc118643398;"></span><span style="color: black; font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="margin-bottom: 12pt; mso-margin-top-alt: auto; text-indent: 0.5in;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Service of the initiating documents in post-judgment applications
subject to consensual e-filing must be effectuated in hard copy and accompanied
by a notice of electronic filing (for post-judgment matrimonial
proceedings).<span style="mso-spacerun: yes;"> </span>Proof of hard copy service
must be filed by electronic means. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Recent
Legislation - </span></b><b><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";">Family Court Act § 842-a</span></b><b><span style="color: red; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11pt;">Laws of 2022, Ch 577,
amended</span></b><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"> the opening paragraph Family Court Act § 842-a,
subdivisions 1, 2 and 3<span style="mso-spacerun: yes;"> </span>effective
October 18, 2022<span style="mso-spacerun: yes;"> </span>by requiring the court
to inquire of the respondent and the protected party as to the existence and
location of a firearm owned or possessed by the defendant upon issuance of a
temporary order of protection.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws of
2022, Ch 577, amended Family Court Act 842-a (1) opening paragraph, effective
October 18,2022, to read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>Suspension<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>firearms<span style="mso-spacerun: yes;"> </span>license and
ineligibility for such a license<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>upon
the issuance of a temporary order of protection. Whenever a<span style="mso-spacerun: yes;"> </span>tempo-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>rary<span style="mso-spacerun: yes;">
</span>order<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>protection<span style="mso-spacerun: yes;">
</span>is issued pursuant to section eight hundred<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>twenty-eight of this article, or pursuant to
article<span style="mso-spacerun: yes;"> </span>four,<span style="mso-spacerun: yes;"> </span>five,<span style="mso-spacerun: yes;">
</span>six,<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><b><span style="font-size: 10pt;"><span style="mso-spacerun: yes;"> </span>seven<span style="mso-spacerun: yes;">
</span>or ten of this act</span><span style="font-size: 10pt;"> <span style="color: green;">the court shall inquire of the respondent and,</span><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">outside of the
presence of the respondent, the<span style="mso-spacerun: yes;">
</span>petitioner<span style="mso-spacerun: yes;"> </span>or,<span style="mso-spacerun: yes;"> </span>if<span style="mso-spacerun: yes;"> </span>the</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">petitioner<span style="mso-spacerun: yes;"> </span>is<span style="mso-spacerun: yes;">
</span>not<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>protected<span style="mso-spacerun: yes;">
</span>party,<span style="mso-spacerun: yes;"> </span>any party protected by
such</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">order, if the
court has<span style="mso-spacerun: yes;"> </span>reason<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;">
</span>believe<span style="mso-spacerun: yes;"> </span>that<span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;">
</span>petitioner<span style="mso-spacerun: yes;"> </span>or</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">protected<span style="mso-spacerun: yes;"> </span>party<span style="mso-spacerun: yes;">
</span>would<span style="mso-spacerun: yes;"> </span>have<span style="mso-spacerun: yes;"> </span>actual<span style="mso-spacerun: yes;">
</span>knowledge<span style="mso-spacerun: yes;"> </span>or reason to know such</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">information, as
to the existence and location of any firearm,<span style="mso-spacerun: yes;">
</span>rifle<span style="mso-spacerun: yes;"> </span>or</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">shotgun owned
or possessed by the respondent and</span>:<o:p></o:p></b></span></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws of
2022, Ch 577, amended Family Court Act 842-a (2) opening paragraph, effective
October 18,2022, to read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>Revocation<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;">
</span>suspension<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>firearms license and ineligibility for<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>such a license upon the issuance of an order
of protection. Whenever<span style="mso-spacerun: yes;"> </span>an<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>order <span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>protection is issued pursuant to section eight hundred forty-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>one of this part, or pursuant to article
four, five, six, seven<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>ten<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>this<span style="mso-spacerun: yes;"> </span>act<span style="mso-spacerun: yes;"> </span><span style="color: green;">the court shall
inquire of the respondent and, outside of</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">the presence of
the respondent, the petitioner or, if the petitioner<span style="mso-spacerun: yes;"> </span>is</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">not the protected
party, any party protected by such order, if the court</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">has reason to
believe that such petitioner or protected party would have</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">actual knowledge
or reason to know such information, as to the existence</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">and<span style="mso-spacerun: yes;"> </span>location of any firearm, rifle or shotgun
owned or possessed by the</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">respondent and</span>:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws of
2022, Ch 577, amended Family Court Act 842-a (3) opening paragraph, effective
October 18,2022, to read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>Revocation or suspension of firearms<span style="mso-spacerun: yes;"> </span>license<span style="mso-spacerun: yes;">
</span>and<span style="mso-spacerun: yes;"> </span>ineligibility<span style="mso-spacerun: yes;"> </span>for<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;">
</span>a<span style="mso-spacerun: yes;"> </span>license upon a finding of a
willful failure to obey an order of<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>protection or temporary order of protection.
Whenever a<span style="mso-spacerun: yes;"> </span>respondent<span style="mso-spacerun: yes;"> </span>has<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>been<span style="mso-spacerun: yes;">
</span>found,<span style="mso-spacerun: yes;"> </span>pursuant to section eight
hundred forty-six-a of this part<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>to have willfully failed to obey an
order<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>protection<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>temporary<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>order<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>protection<span style="mso-spacerun: yes;"> </span>issued<span style="mso-spacerun: yes;">
</span>pursuant<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>this<span style="mso-spacerun: yes;">
</span>act<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>the domestic<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>relations law, or by this court or by a
court of competent<span style="mso-spacerun: yes;"> </span>jurisdiction<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>in another state, territorial or tribal
jurisdiction, in addition to any<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>other<span style="mso-spacerun: yes;">
</span>remedies<span style="mso-spacerun: yes;"> </span>available pursuant to
section eight hundred forty-six-a<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of this part <span style="color: green;">the
court shall inquire of the respondent and, outside<span style="mso-spacerun: yes;"> </span>the</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">presence<span style="mso-spacerun: yes;"> </span>of the respondent, the petitioner or, if the
petitioner is not</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">the protected
party, any party protected by such order, if the court has</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">reason to believe
that such petitioner or<span style="mso-spacerun: yes;"> </span>protected<span style="mso-spacerun: yes;"> </span>party<span style="mso-spacerun: yes;">
</span>would<span style="mso-spacerun: yes;"> </span>have</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">actual knowledge
or reason to know such information, as to the existence</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">and<span style="mso-spacerun: yes;"> </span>location of any firearm, rifle or shotgun
owned or possessed by the</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">respondent and</span>:<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">October
26, 2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932363"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Recent
Legislation</span></a><span style="mso-bookmark: _Toc117932363;"></span><span style="font-size: 11pt; text-decoration: none;"> – Family</span><span style="font-size: 11pt; text-decoration: none;"> </span><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Court Act § 842-a</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><span style="font-family: arial;"><b><span style="font-size: 11pt;">Laws
of 2022, Ch 577, amended</span></b><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"> the opening paragraph Family Court Act § 842-a,
subdivisions 1, 2 and 3<span style="mso-spacerun: yes;"> </span>effective
October 18, 2022<span style="mso-spacerun: yes;"> </span>by requiring the court
to inquire of the respondent and the protected party as to the existence and
location of a firearm owned or possessed by the defendant upon issuance of a
temporary order of protection.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws of
2022, Ch 577, amended Family Court Act 842-a (1) opening paragraph, effective
October 18,2022, to read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>Suspension<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>firearms<span style="mso-spacerun: yes;"> </span>license and
ineligibility for such a license<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>upon the issuance of a temporary order of
protection. Whenever a<span style="mso-spacerun: yes;"> </span>tempo-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>rary<span style="mso-spacerun: yes;">
</span>order<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>protection<span style="mso-spacerun: yes;">
</span>is issued pursuant to section eight hundred<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>twenty-eight of this article, or pursuant to
article<span style="mso-spacerun: yes;"> </span>four,<span style="mso-spacerun: yes;"> </span>five,<span style="mso-spacerun: yes;">
</span>six,<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><b><span style="font-size: 10pt;"><span style="mso-spacerun: yes;"> </span>seven<span style="mso-spacerun: yes;">
</span>or ten of this act</span><span style="font-size: 10pt;"> <span style="color: green;">the court shall inquire of the respondent and,</span><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">outside of the
presence of the respondent, the<span style="mso-spacerun: yes;">
</span>petitioner<span style="mso-spacerun: yes;"> </span>or,<span style="mso-spacerun: yes;"> </span>if<span style="mso-spacerun: yes;"> </span>the</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">petitioner<span style="mso-spacerun: yes;"> </span>is<span style="mso-spacerun: yes;">
</span>not<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>protected<span style="mso-spacerun: yes;">
</span>party,<span style="mso-spacerun: yes;"> </span>any party protected by
such</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">order, if the
court has<span style="mso-spacerun: yes;"> </span>reason<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;">
</span>believe <span style="mso-spacerun: yes;"> </span>that<span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;">
</span>petitioner<span style="mso-spacerun: yes;"> </span>or</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">protected<span style="mso-spacerun: yes;"> </span>party<span style="mso-spacerun: yes;">
</span>would<span style="mso-spacerun: yes;"> </span>have<span style="mso-spacerun: yes;"> </span>actual<span style="mso-spacerun: yes;">
</span>knowledge<span style="mso-spacerun: yes;"> </span>or reason to know such</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">information, as
to the existence and location of any firearm,<span style="mso-spacerun: yes;">
</span>rifle<span style="mso-spacerun: yes;"> </span>or</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: green;">shotgun owned
or possessed by the respondent and</span>:<o:p></o:p></b></span></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws of
2022, Ch 577, amended Family Court Act 842-a (2) opening paragraph, effective
October 18,2022, to read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>Revocation<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;">
</span>suspension<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>firearms license and ineligibility for<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>such a license upon the issuance of an order
of protection. Whenever<span style="mso-spacerun: yes;"> </span>an<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>order<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>protection is issued pursuant
to section eight hundred forty-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>one of this part, or pursuant to article
four, five, six, seven<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>ten<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>this<span style="mso-spacerun: yes;"> </span>act<span style="mso-spacerun: yes;"> </span><span style="color: green;">the court shall
inquire of the respondent and, outside of</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">the presence of
the respondent, the petitioner or, if the petitioner<span style="mso-spacerun: yes;"> </span>is</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">not the protected
party, any party protected by such order, if the court</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">has reason to
believe that such petitioner or protected party would have</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">actual knowledge
or reason to know such information, as to the existence</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">and<span style="mso-spacerun: yes;"> </span>location of any firearm, rifle or shotgun
owned or possessed by the</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">respondent and</span>:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws of
2022, Ch 577, amended Family Court Act 842-a (3) opening paragraph, effective
October 18,2022, to read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>Revocation or suspension of firearms<span style="mso-spacerun: yes;"> </span>license<span style="mso-spacerun: yes;">
</span>and<span style="mso-spacerun: yes;"> </span>ineligibility<span style="mso-spacerun: yes;"> </span>for<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;">
</span>a<span style="mso-spacerun: yes;"> </span>license upon a finding of a
willful failure to obey an order of<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>protection or temporary order of protection.
Whenever a<span style="mso-spacerun: yes;"> </span>respondent<span style="mso-spacerun: yes;"> </span>has<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>been<span style="mso-spacerun: yes;">
</span>found,<span style="mso-spacerun: yes;"> </span>pursuant to section eight
hundred forty-six-a of this part<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>to have willfully failed to obey an
order<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>protection<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>temporary<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>order<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>protection<span style="mso-spacerun: yes;"> </span>issued<span style="mso-spacerun: yes;">
</span>pursuant<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>this<span style="mso-spacerun: yes;">
</span>act<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>the domestic<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>relations law, or by this court or by a
court of competent<span style="mso-spacerun: yes;"> </span>jurisdiction<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>in another state, territorial or tribal
jurisdiction, in addition to any<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>other<span style="mso-spacerun: yes;">
</span>remedies<span style="mso-spacerun: yes;"> </span>available pursuant to
section eight hundred forty-six-a<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of this part <span style="color: green;">the
court shall inquire of the respondent and, outside<span style="mso-spacerun: yes;"> </span>the</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">presence<span style="mso-spacerun: yes;"> </span>of the respondent, the petitioner or, if the
petitioner is not</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">the protected
party, any party protected by such order, if the court has</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">reason to believe
that such petitioner or<span style="mso-spacerun: yes;"> </span>protected<span style="mso-spacerun: yes;"> </span>party<span style="mso-spacerun: yes;">
</span>would<span style="mso-spacerun: yes;"> </span>have</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">actual knowledge
or reason to know such information, as to the existence</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">and<span style="mso-spacerun: yes;"> </span>location of any firearm, rifle or shotgun
owned or possessed by the</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">respondent and</span>:<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Court of Appeals<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932364"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Court
of Appeals holds that the</span></a><span style="mso-bookmark: _Toc117932364;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> </span></span><span style="mso-bookmark: _Toc117932364;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Interstate Compact on the
Placement of Children (ICPC) does not apply to out-of-state, noncustodial
parents seeking custody of their children who are in the custody of New York
social services agencies.</span></span><span style="mso-bookmark: _Toc117932364;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="background: white;"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
the Matter of D.L.,v. S.B.<span style="mso-spacerun: yes;"> </span>--- N.E.3d
----, 2022 WL 14123151, 2022 N.Y. Slip Op. 05940 (2022) the Court of Appeals
held that the Interstate Compact on the Placement of Children (ICPC) an
agreement among the states to follow certain procedures in connection with
sending children across state borders “for placement in foster care or as a
preliminary to a possible adoption” (Social Services Law § 374–a [1] [art III]
[a]) does not apply to out-of-state, noncustodial parents seeking custody of
their children who are in the custody of New York social services agencies.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Petitioner father, a North Carolina resident, and
respondent mother, a New York resident, were the parents of the subject child.
In 2012, respondent Suffolk County Department of Social Services (DSS) removed
the child from the custody of mother, who admitted neglecting the child, and
placed the child in foster care. Father exercised his right to appear in the
neglect proceeding and, in 2013, an application was made under the ICPC to
North Carolina for the approval of father’s home in that state as a suitable
placement for the child. The relevant North Carolina authority denied the ICPC
request. The child remained in foster care with the goal of reunification with
mother and, according to father, he maintained contact with and continued to
visit with the child. Thereafter, in 2017, the father commenced these custody
proceedings, arguing that it was in the child’s best interests to award him
sole custody. DSS argued that the child could not be placed with father in
light of the North Carolina authority’s 2013 refusal to consent to the placement.
Family Court dismissed father’s petitions without conducting a hearing. It held
in pertinent part that the requirements of the ICPC applied to placement of the
child with father, even though he was an out-of-state noncustodial parent,
because the child was in the custody and care of DSS in New York. The Appellate
Division affirmed (183 A.D.3d 565, 121 N.Y.S.3d 644 [2nd Dept. 2020]), holding
that Family Court properly determined that the ICPC applied because “the child
was in the custody of DSS and ... father resided in North Carolina” The Court
concluded that the petitions for custody were correctly dismissed without a
hearing inasmuch as the relevant North Carolina authority denied approval of
father’s 2013 ICPC request. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Court of Appeals reversed. It observed that the ICPC
is an agreement among the 50 states, the District of Columbia, and the U.S.
Virgin Islands. It is a non-federal agreement and is “construed as state law”
in each adopting state (McComb v. Wambaugh, 934 F.2d 474, 479 [3d Cir 1991]).The
ICPC governs the “interstate placement of children” (Social Services Law §
374–a [1] [art I]). The ICPC provides at the outset that it applies when a
state agency seeks to send children to a receiving state to be placed in foster
care or for possible adoption. Specifically, article III of the ICPC provides:
“(a) No sending agency shall send ... into any other party state any child for
placement in foster care or as a preliminary to a possible adoption unless the
sending agency shall comply with each and every requirement set forth in this
article ...“(b) Prior to sending ... any child ... 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 ...” (emphasis added). (Social Services Law §
374–a [art III] [a], [b]). “Placement,” in turn, is defined as “the arrangement
for the care of a child in a family free or boarding home or in a child-caring
agency or institution” (id. § 374–a [art II] [d]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Court of Appeals<span style="mso-spacerun: yes;">
</span>observed that by its terms, the ICPC governs the out-of-state
“placement” of children “in foster care or as a preliminary to possible
adoption” (Social Services Law § 374–a [1] [art III] [a] & [b]). The
language of the statute thus unambiguously limits its applicability to cases of
placement for foster care or adoption—which are substitutes for parental care
that are not implicated when custody of the child is granted to a noncustodial parent.
Applying the ICPC to noncustodial parents would be inconsistent with the
statutory requirement that, when a child is placed pursuant to the ICPC, “[t]he
sending agency shall continue to have financial responsibility for support and
maintenance of the child during the period of the placement” (Social Services
Law § 374–a [1] [art V] [a]). As the United States Court of Appeals for the
Third Circuit observed, “[t]o construe the return of a child to [a] parent as a
‘placement’ within the Compact would result in the anomalous situation of
imposing a financial obligation upon a sending state that supersedes parents’
duty to support their children” (McComb, 934 F.2d at 480). There is nothing in
the statutory language to indicate that the ICPC was intended to apply to
out-of-state parents seeking custody of their children and the statutory text
confines application of the ICPC to children placed in foster care or
preliminary adoptive homes. It noted that its decision in Matter of Shaida W.,
85 N.Y.2d 453, 626 N.Y.S.2d 35, 649 N.E.2d 1179 [1995]) did not compel a
contrary conclusion. In that case, the question before the Court was whether
the ICPC applied when children, who were in the care and custody of a New York
social services agency, were taken to another state by their grandmother after
the agency placed the children into temporary foster care with the grandmother.
Although article VIII(a) provides that the ICPC does not apply to “[t]he
sending or bringing of a child into a receiving state by [a] parent, step-parent,
grandparent, adult brother or sister, adult uncle or aunt, or [a] guardian and
leaving the child with any such relative or non-agency guardian in the
receiving state” (Social Services Law § 374–a [1] [art VIII] [a]), it explained
that “the children were not legally ‘sent’ to California by their grandmother”.
Rather, “[t]he official custodian” of the children was the “Department of
Social Services of New York City,” and it was the agency that “authorized the
children to be ‘sent’ ” to California within the meaning of the statute. That
is, the children were sent by a social services agency to a “kinship foster
care placement” in another state and, as such, this Court concluded that the
ICPC applied. Here, in contrast, placing a child with an out-of-state parent
did not involve foster care or adoption and, thus, Shaida W. did<span style="mso-spacerun: yes;"> </span>not control. The Court pointed out that its
reading of the ICPC as being applicable only to placement of a child for foster
care or as a preliminary to adoption, and not to custody of a noncustodial
parent, comports with the intent reflected in the Compact’s legislative history
and the underlying statutory purpose. Although the ICPC does not apply to
placement with a parent, the Family Court Act contains other effective means to
ensure the safety of a child before awarding custody to an out-of-state parent.
Family Court retains jurisdiction over custody proceedings and has a broad
array of powers under the Family Court Act to ensure a child’s safety.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932365"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">DRL § 237, applies to parties
litigating the issue of standing as a “parent” under DRL § 70. Where the award
was issued toward the end of litigation and covered almost all of respondent’s
claimed counsel fees, it was, in effect, a final order and<span style="mso-spacerun: yes;"> </span>Petitioner was entitled to an evidentiary
hearing as to the extent and value of respondent’s counsel fees</span></a><span style="mso-bookmark: _Toc117932365;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Gunn v Hamilton, --- N.Y.S.3d ----, 2022 WL
10207780, 2022 N.Y. Slip Op. 05790 (1<sup>st</sup> Dept.,2022) the Appellate
Division pointed out that in Matter of Kelly G. v. Circe H., 178 A.D.3d 533,
117 N.Y.S.3d 171 (1st Dept. 2019) it determined that Domestic Relations Law §
237, in consonance with the Court of Appeals’ decision in Matter of Brooke S.B.
v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), applies
to parties litigating the issue of standing as a “parent” under Domestic
Relations Law § 70. It agreed with petitioner that the motion court’s framing
of the counsel fee award as an “interim” order was incorrect. Given that the
award was issued toward the end of litigation and covered almost all of
respondent’s claimed counsel fees, costs, and expenses, approximately $2.7
million, it found that the fee award was, in effect, a final order.
Accordingly, petitioner, who vigorously challenged the motion, was entitled to
an evidentiary hearing as to the extent and value of respondent’s counsel fees.
It vacated the order and remand the matter to the motion court for an
evidentiary hearing on reasonable counsel fees.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division also vacated the finding of
criminal contempt premised on petitioner’s noncompliance with a June 28, 2021
order. Even if the order were not vacated, the procedural defects apparent in
this proceeding warranted reversal. The record made clear that the court held a
criminal contempt proceeding. Accordingly, petitioner was entitled to the same
rights afforded a criminal defendant, including a right to be heard, to have
her guilt proven beyond a reasonable doubt, and to meaningful representation of
counsel. Petitioner did not receive the benefit of these procedural safeguards.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span><a name="_Toc117932366">Respondent was not denied due process when the Family
Court sua sponte conformed the petition to the proof adduced during the
fact-finding hearing</a></span><span style="mso-bookmark: _Toc117932366;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Matter of Jose
M. R., v. Arian S., --- N.Y.S.3d ----, 2022 WL 10207779, 2022 N.Y. Slip Op.
05816 (1<sup>st</sup> Dept.,2022) a family offense proceeding the Appellate
Division held that Respondent was not denied due process when the Family Court
sua sponte conformed the petition to the proof adduced during the fact-finding
hearing, as he could not have been surprised or prejudiced by his own
admissions (see Matter of Oksoon K. v. Young K., 115 AD3d 486, 487 [1st Dept
2014], lv denied, 24 NY3d 902 [2014] ).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932367"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">A parent who has complied with
the recommended service plan has failed to plan for the child’s future if she
“fails to gain insight into her parenting problems or take responsibility for
the issues that prompted foster care placement in the first place.</span></a><span style="mso-bookmark: _Toc117932367;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of
Patrice H. W., --- N.Y.S.3d ----, 2022 WL 10207773, 2022 N.Y. Slip Op. 05820 (1<sup>st</sup>
Dept.,2022) the Appellate Division found that the finding of permanent neglect
with respect to the child Patrice was supported by clear and convincing
evidence. Respondent failed to plan for the child, evidenced by her refusal to
acknowledge the problems that led to the foster care placement of the child in
the first place, blaming the children, the biological mother, and the agency
and denying that the children were subject to sexual abuse. Regardless of
whether a parent has complied with the recommended service plan, she has failed
to plan for the child’s future if she “fails to gain insight into her parenting
problems or take responsibility for the issues that prompted foster care
placement in the first place.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932368"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Finding
of neglect against the mother was supported by evidence establishing that she
refused to enforce a final order of protection issued against her boyfriend and
in favor of the child in a prior neglect proceeding</span></a><span style="mso-bookmark: _Toc117932368;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
Matter of Taveon J.,--- N.Y.S.3d ----, 2022 WL 4830386, 2022 N.Y. Slip Op.
05512 (1st Dept.,2022) the Appellate Division found that the finding of neglect
against the mother was supported by a preponderance of the evidence
establishing that she placed the children’s physical and psychological safety
in imminent risk of impairment by refusing to enforce a final order of
protection issued against her boyfriend and in favor of the child Taveon in a
prior neglect proceeding. Taveon, who was then 11 years old, was heard crying
on a tape of a 911 call, in which he reported that the mother’s boyfriend
allegedly choked her and then threatened to kill Taveon; the caseworker also
testified that Taveon was crying at the police station after the incident. This
evidence established, among other things, that the mother risked Taveon’s
emotional health by failing to enforce the order of protection issued on his
behalf.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><br />
<a name="_Toc117932369">Where a material term of a stipulation is<span style="mso-spacerun: yes;"> </span>left for future negotiations the
agreement<span style="mso-spacerun: yes;"> </span>constituted “a mere agreement
to agree,” is unenforceable</a></span><span style="mso-bookmark: _Toc117932369;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Pinto v Pinto, --- N.Y.S.3d ----, 2022 WL 6850257,
2022 N.Y. Slip Op. 05728 (2d Dept.,2022) the parties stipulation of
settlement<span style="mso-spacerun: yes;"> </span>that was incorporated, but
not merged, into the judgment of divorce recited that it was the parties’
intention that the children would attend college, and provided that the
children, with both parties’ cooperation, would apply for “merit and need based
financial aid” to cover the cost of attending college. The stipulation further
provided that, “should there be necessary costs and expenses once financial
aid, merit aid and scholarships are exhausted[,] the parties shall consult and
try to reach an agreement on payment of these cost[s] and expenses at the time
those cost[s] and expenses arise. If the parties cannot agree they can address
the issue in a Court of competent jurisdiction.” <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In 2019, the plaintiff moved, inter alia, in effect, to
direct the defendant to reimburse the plaintiff for the repayment of one-half
of the total amount of the student loans incurred for the payment of the
college costs and expenses for the parties’ children, based on the above-quoted
provision of the stipulation. The plaintiff<span style="mso-spacerun: yes;">
</span>averred, inter alia,<span style="mso-spacerun: yes;"> </span>with the
defendant about her contributing to the cost of the children’s education on at
least two occasions while the children were attending college, and the
defendant deferred discussion of the matter to a later time.<span style="mso-spacerun: yes;"> </span>The defendant averred that the parties
consulted with each other on the issue of the children’s college expenses, that
they agreed that the plaintiff would pay those expenses, and that the plaintiff
did so. Supreme Court, denied plaintiff’s motion. The Appellate Division
affirmed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that the provision of the
stipulation upon which the plaintiff relied in seeking reimbursement from the
defendant required only that “the parties shall consult and try to reach an
agreement on payment of [the children’s college-related] cost[s] and expenses.”
This provision did not identify an amount or percentage of such costs or
expenses to be paid by either party, and did not impose an obligation upon
either party to make any such payment. Rather, “a material term [was] left for
future negotiations” (Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52
N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). Thus, the subject provision
constituted “a mere agreement to agree,” and, as such, was unenforceable (id.
at 109, 436 N.Y.S.2d 247, 417 N.E.2d 541; see Silverman v. Silverman, 249
A.D.2d 378, 379, 671 N.Y.S.2d 145; Flanel v. Flanel, 152 A.D.2d 536, 543
N.Y.S.2d 501).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932370"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Where there is no right to
counsel pursuant to FCA § 262, claims of ineffective assistance of counsel in civil
litigation will not be entertained absent extraordinary circumstances</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Buljeta v Fuchs, --- N.Y.S.3d ----, 2022 WL
6849583, 2022 N.Y. Slip Op. 05687 (2d Dept.,2022) the Appellate Division held
that situations where there is no statutory right to counsel pursuant to Family
Court Act § 262, claims of ineffective assistance of counsel in the context of
civil litigation will not be entertained where extraordinary circumstances are
absent (see Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d
942, 943, 53 N.Y.S.3d 130; Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048,
983 N.Y.S.2d 892).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932371"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Where the father’s<span style="mso-spacerun: yes;"> </span>failure to pay child support is not willful a
money judgment should be entered in favor of the mother for the amount of child
support arrears</span></a><span style="mso-bookmark: _Toc117932371;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of Santman v Schonfeldt, --- N.Y.S.3d ----, 2022 WL 6846934 (Mem), 2022
N.Y. Slip Op. 05693 (2 Dept.,2022) a child support enforcement proceeding,<span style="mso-spacerun: yes;"> </span>the Family Court denied the petition and
dismissed the proceeding. The Appellate Division found that the mother
presented evidence that the father had made only one child support payment
during the relevant period, and that he owed basic child support of $19,591.43.
Therefore, the mother met her prima facie burden. The father testified, and
presented proof, that he intended to pay, but his employer and/or the Support
Collection Unit had not properly followed through with the wage garnishment
procedure. The Support Magistrate found the father’s testimony credible. The Appellate
Division held that under the circumstances of this case, the father’s showing
was sufficient to establish that his failure to pay was not willful.
Nevertheless, as there was competent proof at the hearing that the father
failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a
money judgment should have been entered in favor of the mother for the amount
of child support arrears that accrued during the relevant period (see Family Ct
Act<span style="mso-spacerun: yes;"> </span>§§ 454[2][a]; 460[1]). It remitted
the matter to the Family Court, for the entry of an appropriate money judgment.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932372"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Denial
of husbands pendente lite motion to sell portion of wine collection to pay
marital debt<span style="mso-spacerun: yes;"> </span>was in keeping with
purposes of DRL § 236(B)(2)(b)(1), to preserve the status quo and to ensure
that neither party would be prejudiced</span></a><span style="mso-bookmark: _Toc117932372;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL
10781782 (Mem), 2022 N.Y. Slip Op. 05835 (2d Dept.,2022) in July 2018, the
plaintiff commenced this action for a divorce. In October 2018, the Supreme Court
denied the defendants motion inter alia, for permission to sell a portion of
the parties’ wine collection pendente lite in order to pay marital debt and
expenses. The Appellate Division affirmed. It observed that Domestic Relations
Law § 236(B)(2)(b)(1) provides, in pertinent part, that during the pendency of
a matrimonial action, “neither party shall sell ... or in any way dispose of,
without ... consent of the other party in writing, or by order of the court,
any property (including ... personal property ...) individually or jointly held
by the parties, except in the usual course of business, for customary and usual
household expenses or for reasonable attorney’s fees in connection with this
action.” The record supported the Supreme Court’s determination The parties’
affidavits submitted in connection with the motion reflected factual disputes
regarding, inter alia, the size and estimated value of the wine collection, the
parties’ past course of conduct during the marriage with respect to sales from
the wine collection, and the parties’ respective alleged irresponsibility or
responsibility with regard to household finances. In light of these factual
disputes, denial of the subject branch of the motion was appropriate and in
keeping with the statutory purposes of Domestic Relations Law §
236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party
would be prejudiced by the potential “unilateral dissipation of marital
assets”.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932373"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Second
Department reiterates rule that modifications of pendente lite awards should
rarely be made by an appellate court and then only under exigent circumstances</span></a><span style="mso-bookmark: _Toc117932373;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL
10778464 (Mem), 2022 N.Y. Slip Op.<span style="mso-spacerun: yes;"> </span>(2d
Dept.,2022) the parties were married in 2008 and had two children. In July
2018, the plaintiff commenced the action for a divorce. In an order dated
January 4, 2021, the Supreme Court, inter alia, granted the plaintiff’s motion
for an award of pendente lite child support to the extent of directing the
defendant to pay pendente lite child support in the sum of $5,059 per month,
retroactive pendente lite child support in the sum of $40,472 at a rate of
$1,700 per month, and 100% of the children’s add-on expenses. The Appellate
Division affirmed. It held that<span style="mso-spacerun: yes;"> </span>modification
of the pendente lite child support award was not warranted. Modifications of
pendente lite awards should rarely be made by an appellate court and then only
under exigent circumstances, such as where a party is unable to meet his or her
financial obligations or justice otherwise requires. Any perceived inequity in
the award of pendente lite child support can best be remedied by a speedy
trial, at which the parties’ financial circumstances can be fully explored. The
defendant failed to demonstrate the existence of any exigent circumstances
warranting a modification of the pendente lite child support award made by the
Supreme Court.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932374"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Presumption
that visitation with a noncustodial parent is in the best interests of the
child, may be overcome where the party opposing visitation sets forth
compelling reasons and substantial evidence that such visitation would be
detrimental or harmful to the child’s welfare</span></a><span style="mso-bookmark: _Toc117932374;"></span><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Ajmal I v Latoya J, ---
N.Y.S.3d ----, 2022 WL 11379771, 2022 N.Y. Slip Op. 05912 (3d Dept.,2022)
pursuant to a February 2012 order, the mother was awarded sole legal and
physical custody of the child, while the father, who had failed to appear was
granted the right to petition for custody and/or visitation in the future. The
father left New York in 2009 and had not resided in the state since. The
parties’ relationship had generally been tense. Given the father’s prior
menacing and assaultive behavior toward the mother, she remained afraid of him
and refused to give him her address. In November 2019, the mother learned that
the father had offered money on social media to anyone who gave him the
mother’s address, then posted that he had obtained the address and would “[s]ee
[her] soon.” The mother filed a family offense petition seeking an order of
protection against the father. The father responded by filing a custody
modification petition and seeking, for the first time since the issuance of the
2012 custody order, visitation with the child. Family Court issued an order of
protection in favor of the mother. Family Court then conducted a fact-finding
hearing on the father’s modification petition, and granted the<span style="mso-spacerun: yes;"> </span>father two hours of supervised visitation. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division agreed with the mother and the
attorney for the child that there was no basis for the award of visitation
here. It reversed and dismissed the father’s petition in its entirety.<span style="mso-spacerun: yes;"> </span>It held that while visitation with a
noncustodial parent is presumed to be in the best interests of the child, that
“presumption may be overcome where the party opposing visitation sets forth
compelling reasons and substantial evidence that such visitation would be
detrimental or harmful to the child’s welfare. This standard of substantial
proof should not be interpreted in such a way as to heighten the burden, of the
party who opposes visitation, to rebut the presumption by a preponderance of
the evidence. ( Matter of Granger v. Misercola, 21 N.Y.3d 86, 92, 967 N.Y.S.2d
872 [2013]). As such, the party opposing visitation will meet his or her burden
with sworn testimony or documentary evidence that visitation would be harmful
to the child or that the noncustodial parent has forfeited the right of access.
It was undisputed that the father had not lived with the child in over a decade
and had only infrequently visited the child due to, among other things, his
moving out of the area and frequently relocating around the United States. The
father made no effort to seek a formal award of visitation until 2019, more
than seven years after the issuance of the 2012 custody order and over two
years after he had last seen the child. This failure by the father to seek a
visitation order or otherwise “avail himself of opportunities for visitation
over a lengthy period of time<span style="mso-spacerun: yes;"> </span>is
appropriately taken into account in considering whether visitation is
appropriate. Moreover, the mother testified as to how the father behaved in an
irresponsible and harmful manner on the occasions when he did interact with the
child. The mother described how, during a 2014 visit with the child during his
winter break from school, the father cut off contact with her and left the
child with relatives so that he could attend a party and travel to New York
City, leaving the mother unaware of the child’s whereabouts until the child
called her several days later. The father did not see the child again until a
2017 family trip to an amusement park, and the mother testified that he upset the
child then by, among other things, live streaming the visit, including the
child’s personal conversations, over social media. The mother further set forth
how the father did not have frequent electronic contact with the child after
that visit and, when that contact did occur, the child was upset by it. The
attorney for the child confirmed that the teenage child was upset by
interactions with the father for a variety of reasons and did not wish to see
him. The child’s preference to have no in-person contact with the father was
not dispositive, but is entitled to “considerable weight” given the child’s age
. The foregoing satisfied the mother’s burden of establishing that any
visitation with the father would be harmful to the child.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932375"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Change
in circumstances standard does not apply where the parties’ separation
agreement was never memorialized in a court order or otherwise judicially
sanctioned. Fundamental purpose” of Lincoln hearing is to ascertain a child’s
preferences and concerns.</span></a><span style="mso-bookmark: _Toc117932375;"></span><span style="text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span> <o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Theodore P v Debra P, 2022 WL 11378159 (3d Dept.,2022)
pursuant to a March 2018 separation agreement, which was to be incorporated but
not merged into a subsequent judgment of divorce, the parties agreed to joint
legal custody of the child and to share physical custody on a “substantially
equal basis in a mutually acceptable manner.” The father commenced a divorce
action in November 2019 requesting that relief, while the mother sought sole
legal and physical custody. The Appellate Division rejected the father’s
argument that the Supreme Court erred in proceeding directly to a best
interests analysis without first considering whether a change in circumstances
occurred since execution of the separation agreement. A party seeking to modify
a judicially sanctioned custody arrangement must make a threshold showing of a
change in circumstances that warrants an inquiry into whether modification of
the arrangement is in the child’s best interests. However, that standard does
not apply where the parties’ separation agreement was never memorialized in a
court order or otherwise judicially sanctioned. As such, the separation
agreement was but a factor to consider in resolving the custody dispute. It
followed that the court did not err in denying the father’s motion for a
directed verdict based upon the mother’s alleged failure to demonstrate changed
circumstances.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected the fathers argument that
Supreme Court abused its discretion in holding a Lincoln hearing because there
was no trial testimony requiring corroboration by the child. Corroboration of
trial testimony and documentary evidence may be “a recognized purpose of a
Lincoln hearing,” but the “fundamental purpose” of such a hearing “is to
ascertain a child’s preferences and concerns.” It concluded that the Lincoln
hearing was a provident exercise of the court’s discretion.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></b></p>
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<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932376"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Supreme Court holds that in
determining the best interests of a companion animal under DRL § 236 [B] [5]
[d] [15], the reviewing court should consider the totality of circumstances by
weighing relevant factors applicable to the care of a companion animal</span></a><span style="mso-bookmark: _Toc117932376;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
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<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In L.B., v. C.C.B., --- N.Y.S.3d ----, 2022 WL 7855133,
2022 N.Y. Slip Op. 22320 (Sup Ct, 2022) an action for a divorce the parties
were married for ten years. The Supreme Court pointed out that the sole
significant asset contested by the parties was<span style="mso-spacerun: yes;">
</span>custody and possession of their two dogs. It observed that effective
October 25, 2021, DRL § 236 [B] [5] [d] [15] provides the<span style="mso-spacerun: yes;"> </span>standard to apply in pet custody cases. It<span style="mso-spacerun: yes;"> </span>requires courts to consider “the best
interest” of a companion animal when awarding possession in a divorce or
separation proceeding. It held that in determining the best interests of a
companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court
should consider the totality of circumstances by weighing relevant factors
applicable to the care of a companion animal. Salient factors for a court to
consider include: the involvement, or absence, of each party in the companion
animal’s day-to-day life; the availability and willingness of each party to
care for the companion animal; each party’s involvement in health and
veterinary care decisions; the quality of each party’s respective home
environment; the care and affection shown towards the companion animal; and
each party’s fitness and caretaking abilities. No single factor is dispositive.
It held that in determining equitable distribution of the parties’ companion
animals, the court was guided by what is in the doges best interest. In weighing
the factors relevant to the dogs best interest, the court must also evaluate
the testimony, character, and sincerity of all the parties involved (citing
“see generally” Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).
After weighing the factors that would further the dogs best interest, including
factors such as which party was primarily responsible for their day-to-day
needs and for maintaining their health and veterinary care; which party, if
any, spends more time with the dogs on a regular basis; and the quality of the
home environment as one in which the dogs would “live, prosper, love and be
loved,” as well as evaluating the testimony, character and sincerity of the
parties, the court found that it was in the dogs best interest to remain
together in Defendant’s sole care. The care and custody of the parties’
Rottweilers was awarded to Defendant.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">October
12, 2022<o:p></o:p></span></span></b></p>
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<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
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<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932377"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Law of the case doctrine did
not bar defendant’s second attorney’s fees application, which is expressly
permitted by DRL § 237(a) and was based on new evidence and circumstances</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Cohen v Cohen, --- N.Y.S.3d ----, 2022 WL 4830598 (Mem), 2022 N.Y. Slip Op.
05498 (1<sup>st</sup> Dept.,2022) the Appellate Division affirmed an order
which, inter alia, granted defendant wife’s motion for a second interim award
of counsel fees in the amount of $600,000. It found that under the facts and
circumstances presented here, the court providently exercised its discretion.
The factors considered include the scope and complexity of the financial issues
presented, the parties’ assets and liabilities, as sworn to in their respective
statements of net worth, and the prior determination that plaintiff husband,
who controlled much of the parties’ real estate holdings and interest in a
cosmetics business, was the monied spouse. The discretionary law of the case
doctrine did not bar defendant’s second attorney’s fees application, which is
expressly permitted by section 237(a) of the Domestic Relations Law and was
based on new evidence and circumstances.<o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932378"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">T</span></a><span style="mso-bookmark: _Toc117932378;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">he phrase </span></span><span style="mso-bookmark: _Toc117932378;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">“</span></span><span style="mso-bookmark: _Toc117932378;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">consummation of the anticipated marriage of [the
parties] is a condition precedent to the enforceability of this Agreement</span></span><span style="mso-bookmark: _Toc117932378;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">” </span></span><span style="mso-bookmark: _Toc117932378;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>referred to
the marriage ceremony anticipated by the parties when they entered into the
agreement</span></span><span style="mso-bookmark: _Toc117932378;"></span><span style="mso-ansi-language: EN-CA; text-decoration: none; text-underline: none;"> <span lang="EN-CA"><o:p></o:p></span></span></span></h1>
<p class="MsoNormal"><span lang="EN-CA"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In Fort v Haar, ---
N.Y.S.3d ----, 2022 WL 6577794, 2022 N.Y. Slip Op. 05660(1<sup>st</sup>
Dept.,2022)<span style="mso-spacerun: yes;"> </span>In August 2014, the parties
entered into a prenuptial agreement, and on February 14, 2015, they were
married before a rabbi. The prenuptial agreement contained a section entitled
“MARRIAGE -A CONDITION PRECEDENT AND EFFECTIVE DATE,” which provided,
“consummation of the anticipated marriage of [the parties] is a condition
precedent to the enforceability of this Agreement. If [the parties] do not
marry, this Agreement shall have no effect.... This Agreement is made in
consideration of, and is conditioned upon, [the parties] entering into a valid ceremonial
marriage with each other, and it shall become effective as of the date of that
marriage.” After the wife commenced this divorce action, she sought a
declaration that the agreement was not enforceable, arguing that a condition
precedent was the parties’ “consummating the anticipated marriage,” which she
asserted was understood to mean having engaged in marital sexual relations. The
husband opposed and sought a declaration that the agreement was enforceable as
of the date of the marriage. He also disputed the wife’s factual assertions
that the parties had not had sexual relations since the date of the marriage.
The Appellate Division concluded that<span style="mso-spacerun: yes;"> </span>as
used in this prenuptial agreement, the phrase clearly and unambiguously
referred to the marriage ceremony anticipated by the parties when they entered
into the agreement. While the word “consummation” connotes sexual relations in
certain contexts, such as annulment proceedings, that is not the only meaning
of the word, which may simply mean achieve or fulfill (see Black’s Law
Dictionary [11th ed 2019]). The plain meaning of “consummation,” in the context
of the section titled “Marriage – a Condition Precedent and Effective Date” and
defining the effective date of agreement as the date of the parties’ marriage,
is consummation or fulfillment of the parties’ intention to enter into a valid
“marriage.” Reading the contract as a whole, this interpretation of the section
effectuates the parties’ expressed intention to fix their respective rights
accruing upon marriage and to avoid unnecessary and intrusive litigation in the
event of divorce, and sets an ascertainable date for determining the
effectiveness and enforceability of the prenuptial agreement. Furthermore, the
wife’s acceptance of benefits under the terms of the prenuptial agreement
foreclosed her from questioning its enforceability (see Markovitz v. Markovitz,
29 AD3d 460, 461 [1st Dept 2006]). The parties’ conduct in executing a
modification agreement further underscored that they believed it was in force
and effect (Federal Ins. Co. v. Americas Ins. Co., 258 A.D.2d 39, 44 [1st Dept
1999]).<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932379"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Law
Firm </span></a><span style="mso-bookmark: _Toc117932379;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>was not entitled to recover the counsel fees
it incurred in litigating its fee claim against </span></span><span style="mso-bookmark: _Toc117932379;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">former client in absence of </span></span><span style="mso-bookmark: _Toc117932379;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">any agreement, statute, or court rule that would
authorize such a recovery</span></span><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Lorne v Lorne, --- N.Y.S.3d ----, 2022 WL 5234633,
2022 N.Y. Slip Op. 05593 (1<sup>st</sup> Dept.,2022) the Appellate Division
held that Fox Rothschild was entitled to recover its unpaid fees because it
substantially complied with applicable court rules regarding attorneys
representing clients in domestic relations matters (Uniform Rules for Trial Cts
[22 NYCRR] §§ 1400.2, 1400.3; see Edelman v. Poster, 72 A.D.3d 182, 184, 894
N.Y.S.2d 398 [1st Dept. 2010]). Although the wife claimed that the retainer
letter did not include 8 of 13 provisions that are mandated to appear in a
retainer letter (see 22 NYCRR 1400.3), either the omitted provisions addressed
matters that were not relevant to the wife in any event, or the wife was made
aware of those provisions through the statement of client’s rights and through
her own experiences in this proceeding. However, the wife’s position that Fox
Rothschild was not entitled to recover the counsel fees it incurred in
litigating its fee claim against her was<span style="mso-spacerun: yes;">
</span>persuasive in light of the firm’s failure to cite any agreement,
statute, or court rule that would authorize such a recovery (see Hooper Assoc.
v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903
[1989]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932380"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">A court opting to forgo a
plenary custody modification hearing must take care to clearly articulate which
factors were, or were not, material to its determination, and the evidence
supporting its decision.</span></a><span style="mso-bookmark: _Toc117932380;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter Randall v. Diaz,, --- N.Y.S.3d ----, 2022 WL
4490760 (Mem), 2022 N.Y. Slip Op. 05322 (2d Dept.,2022) the Family Court,
without holding a plenary hearing, granted the father’s petition, modified the
existing custody order and awarded the father sole physical custody of the
children. The Appellate Division held that custody determinations should
generally be made only after a full and plenary hearing and inquiry’. Where
facts material to the best interest analysis, and the circumstances surrounding
such facts, remain in dispute, a custody hearing is required. While a hearing
is not necessary where the undisputed facts before the court are sufficient, in
and of themselves, to support a modification of custody a court opting to forgo
a plenary hearing must take care to clearly articulate which factors were, or
were not, material to its determination, and the evidence supporting its
decision. The record demonstrated disputed factual issues so as to require a
hearing on the issue of physical custody. Moreover, the Family Court failed to
articulate the factors and evidence material to its determination. It remitted
for a new hearing and determination.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932381"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Under Family Court Act §
846–a, the court may order the respondent to pay the petitioner’s reasonable
and necessary counsel fees in connection with the violation petition where the
court finds that the violation of its order was willful. The reasonable amount
and nature of the claimed services must be established at an adversarial
hearing</span></a><span style="mso-bookmark: _Toc117932381;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>In Matter of Sicina v.<span style="mso-spacerun: yes;"> </span>--- N.Y.S.3d ----, 2022 WL 5064723, 2022 N.Y.
Slip Op. 05535 (2d Dept.,2022, the Family Court, inter alia, found that Gorish
had willfully violated an order of protection and granted the violation
petition. The court also extended the order of protection and directed Gorish
to pay counsel fees to the petitioner of $1,000. The Appellate Division
affirmed. Family Court’s determination that Gorish willfully violated the order
of protection was supported by clear and convincing evidence in the record.
Family Court Act § 846–a authorizes the court to enter a new order of
protection if, after hearing, the court is satisfied by competent proof that
the respondent has willfully failed to obey any such order. Contrary to
Gorish’s contention, conduct constituting a violation of the order of
protection need not necessarily constitute a separate family offense in order
for the court to have jurisdiction over the violation. Under Family Court Act §
846–a, the court may order the respondent to pay the petitioner’s reasonable
and necessary counsel fees in connection with the violation petition where the
court finds that the violation of its order was willful. The award of counsel
fees is committed to the discretion of the Family Court. The reasonable amount
and nature of the claimed services must be established at an adversarial
hearing. Here, while the Family Court providently exercised its discretion in
awarding counsel fees to the petitioner, the court erred in determining the
amount of the counsel fees without a hearing. It remitted the matter to the
Family Court, for a hearing to determine the amount of reasonable and necessary
counsel fees the petitioner incurred in connection with her violation petition
and the entry of an appropriate order thereafter.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc117932382"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A</span></a><span style="mso-bookmark: _Toc117932382;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> movant contending that a pleading fails to state a
cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and
evidence to demonstrate conclusively that the plaintiff does not have a cause
of action</span></span><span style="mso-bookmark: _Toc117932382;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
Stuber v Stuber --- N.Y.S.3d ----, 2022 WL 5406402, 2022 N.Y. Slip Op. 05641 (4<sup>th</sup>
Dept., 2022) Plaintiff commenced an action seeking to set aside a property
settlement agreement (agreement), which was incorporated but not merged into
the parties’ judgment of divorce, on grounds of fraud, undue influence,
unconscionability, and duress. The Appellate Division reversed an order that,
inter alia, denied defendants motion to dismiss the complaint pursuant to CPLR
3211 (a) (1), (5), and (7). It held that a movant contending that a pleading
fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit
affidavits and evidence to demonstrate conclusively that the plaintiff does not
have a cause of action. Here, plaintiff’s vague allegations that defendant
failed to make full financial disclosure when the agreement was entered into
were belied by the evidence produced in defendant’s motion papers. Thus, it
concluded that the agreement, together with the evidence submitted by
defendant, flatly contradicted plaintiff’s allegations that she was not provided
with complete disclosure regarding the subject assets at the time she executed
the agreement. Further, when confronted with defendant’s motion to dismiss,
plaintiff failed to come forth with any facts or circumstances” supporting her
allegations. Inasmuch as plaintiff only vaguely contended, in response to the
motion, that she learned after the agreement was executed that defendant failed
to make disclosure of marital financial information and inasmuch as her
complaint contains no facts to support those allegations, the complaint also
failed to state a cause of action to rescind the agreement based on
unconscionability, fraud, or duress and undue influence. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">September
28, 2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc115284897"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Where
an account has been stated by a law firm, the firm is not required to establish
the reasonableness of its fees</span></a><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;color:black;mso-color-alt:windowtext;
mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;color:black;mso-color-alt:windowtext;
mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Garr Silpe, P.C. v Pam Thur Weir, --- N.Y.S.3d ----, 2022 WL 4474597, 2022 N.Y.
Slip Op. 05271 (1<sup>st</sup> Dept.,2022) the Appellate Division affirmed a
judgment which awarded the plaintiff $87,993.92, counsel fees as there had been
substantial compliance with the rules (see Edelman v Poster, 72 AD3d 182,184
[1st Dept 2010]; 22 NYCRR part 1400). The court properly granted plaintiff
summary judgment on its claim for account stated. Plaintiff submitted evidence
establishing that defendant did not object to the bills and invoices within a
reasonable time, and had in fact made partial payments. Defendant failed to
proffer any proof raising a triable issue of fact. Defendant’s challenge to the
reasonableness of the fees was unavailing. Where an account has been stated by
a law firm, the firm is not required to establish the reasonableness of its
fees since the client’s act of holding the invoices without objection
constitutes an acquiescence to the correctness of the invoices (see Shaw v
Silver, 95 AD3d 416, 416-417 [1st Dept 2012]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Second Department <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc115284898"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Second
Department holds that where the custodial arrangement splits the children’s
physical custody so that neither can be said to have physical custody of the
children for a majority of the time the parent having the greater pro rata
share of the child support obligation, determined after application of the
three-step statutory formula of the CSSA, should be identified as the
‘noncustodial’ parent</span></a><span style="mso-bookmark: _Toc115284898;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Smisek v DeSantis, 2022 WL
4361153 (2d Dept.,2022) in adjudicating a child support petition filed by the
mother of the children, the Support Magistrate and the Family Court agreed with
the father’s contention that the mother could not be awarded child support
because a strict counting of the parties’ custodial overnights with the
children rendered him the custodial parent. After a trial, the Family Court
issued a final order of custody awarding the parties joint legal custody and
shared parenting time. The parenting time schedule in the final order of
custody was as follows: during the months of September through June, the father
had parenting time with the children from Sunday at 8:00 p.m. through Wednesday
at 9:00 a.m., as well as on alternating weekends from Friday at 9:00 a.m.
through Sunday at 8:00 p.m. The mother had parenting time during those months
from Wednesday at 9:00 a.m. through Friday at 9:00 a.m., and alternating
weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. During the months
of July and August, the mother had parenting time from Monday at 9:00 a.m.
through Thursday at 9:00 a.m., as well as alternating weekends from Thursday at
9:00 a.m. through Monday at 9:00 a.m. The father had parenting time during
those months on alternating weekends from Thursday at 9:00 a.m. through Monday
at 9:00 a.m., as well as one period of seven consecutive days. The parties
alternated custody on all other school breaks and holidays. In its decision
after trial, which set forth the same parenting time schedule, the Family Court
stated that it was giving “residential custody” to the father “solely for the
purpose of determining the children’s school district.” <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Support Magistrate, examining the relevant law,
perceived a split of authority between the Appellate Division, First and Third
Judicial Departments, on the one hand, and the Appellate Division, Fourth
Judicial Department, on the other, with no precedent from the Second
Department, as to the method of determining which parent was the custodial
parent for purposes of child support in a shared custody arrangement. Following
the First Department’s decision in Rubin v. Della Salla, 107 A.D.3d 60, 964
N.Y.S.2d 41, the Support Magistrate concluded that the parent who has the greatest
number of custodial overnights is the parent considered to have custody of the
child the majority of the time and, therefore, is the custodial parent for
child support purposes. Since the father had more custodial overnights, the
Support Magistrate granted the father’s motion pursuant to CPLR 3211(a) to
dismiss the mother’s petition for child support and dismissed the proceeding.
The mother filed objections to the Support Magistrate’s order, arguing for a
more flexible approach that would award child support to the spouse with the
lower income where the parties enjoyed approximately equal parenting time. The
Family Court, however, agreed with the Support Magistrate, and denied the
mother’s objections. The mother appealed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>The
Second Department surveyed the relevant case law in all of the Departments. It
rejected that the father’s contention that status as the custodial parent must
be determined based upon a strict counting of custodial overnights and that the
Baraby rule only applies to a true 50/50 split of custodial overnights. While a
strict counting of overnights might have the advantage of ease of application,
it also has disadvantages. Most significantly, such a method does not always
reflect the reality of the situation. It concluded that while counting
custodial overnights may suffice in most shared custody cases, that approach
should not be applied where it does not reflect the reality of the situation.
Similarly, while it may be clear in most cases which parent’s share of the
parenting time constitutes the majority of custodial time (citing Bast v.
Rossoff, 91 N.Y.2d at 729 n. 3, 675 N.Y.S.2d 19, 697 N.E.2d 1009), the reality
of the situation must also be considered where there is a closer division of
parenting time. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division found that under all of these
circumstances, and considering the reality of the situation, including the
overall amount of time each parent spends with the children, this was a case in
which the “custodial arrangement splits the children’s physical custody so that
neither can be said to have physical custody of the children for a majority of
the time” (Baraby v. Baraby, 250 A.D.2d at 204, 681 N.Y.S.2d 826). Thus, “the
parent having the greater pro rata share of the child support obligation,
determined after application of the three-step statutory formula of the CSSA,
should be identified as the ‘noncustodial’ parent” . Since it had not been
determined in this case which parent had the greater pro rata share of the
child support obligation, it remitted the matter to the Family Court for
further proceedings on the mother’s petition for child support, including
calculation of an appropriate award of support to her in the event that she is
determined to have the lesser pro rata share of the child support obligation.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">September
21,2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Where a parent
makes a voluntary custodial arrangement for his or her child, the courts may
not permit a nonparent to interfere with that arrangement in the absence of
extraordinary circumstances</span><span style="font-size: 11pt;">.</span><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span> SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><o:p></o:p></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Leslie LL v Robert NN,
--- N.Y.S.3d ----, 2022 WL 4239598, 2022 N.Y. Slip Op. 05189 (3d Dept.,2022)
following the mother’s death in 2017, custody petitions for the son and
daughter were filed by the mother’s friend, respondent Shaquila PP.and the
children’s maternal grandmother, respondent Kathy OO..Family Court granted
temporary custody to the grandmother, upon consent of the children’s fathers
and the friend. Family Court conducted a hearing and ultimately dismissed the
petitions on the basis that petitioners had failed to meet their burden of
demonstrating extraordinary circumstances. The Appellate Division affirmed. It
pointed out that the boy’s father testified at the hearing that he consistently
paid child support to the mother while she was alive and saw the boy frequently
during those years, as often as two to three times a week. He also testified
that he was unable to assume custody because he ha physical disabilities and
lived in public housing that did <span style="mso-spacerun: yes;"> </span>not
allow children. Therefore, following the mother’s death, the boy’s father
formulated a plan for the boy to live with the grandmother along with his
sister, with whom he has a close bond. He said he currently visited with the
boy every weekend and attended all of his athletic events. Family Court noted
that the children have been the only constant in each other’s lives and are
very close. The court further observed that the children are being raised
together by the grandmother in a loving home. The Appellate Division held that
where, as here, a parent makes a voluntary custodial arrangement for his or her
child, the courts may not permit a nonparent to interfere with that arrangement
in the absence of extraordinary circumstances. An extraordinary circumstances
inquiry involves “consideration of the cumulative effect of all issues present
in a given case” and requires the nonparent to establish “that there has been
surrender, abandonment, persistent neglect, unfitness, an extended disruption
of custody” or other like circumstances. If , and only if, the nonparent
establishes extraordinary circumstances may a court then consider what
custodial arrangement serves the best interests of the child”. It held
that<span style="mso-spacerun: yes;"> </span>extraordinary circumstances may not
be established merely by showing that the child has bonded psychologically with
the nonparent”.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">September
16, 2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc114311157"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Since there is no reason an
equitable distribution award cannot be made to the plaintiff on a contingent
basis, the court should have awarded the plaintiff 50% of so much of the
security deposit as is returned by the landlord upon the termination of the
lease on the marital residence.</span></a><span style="mso-bookmark: _Toc114311157;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Malkani v Malkani, --- N.Y.S.3d ----, 2022 WL 3904656, 2022 N.Y. Slip Op. 05082
(2d Dept.,2022) the parties were married on December 31, 2007, and had three
minor children. The action for a divorce was commenced on August 8, 2017. After
a nonjury trial, the Supreme Court awarded the plaintiff maintenance and child
support, commencing on the first day of the month following the entry of the
judgment of divorce, rather than being retroactive to the date of the
commencement of the action, when the plaintiff first sought maintenance and
child support. In computing maintenance and child support, the court noted that
the defendant was employed at an annual salary of $235,000 and, based upon the
potential of a bonus, imputed to him a total annual income of $270,000. The
court noted that the plaintiff had been offered full-time employment with an
annual salary of $85,000 by her current employer, and imputed that income to
her. The court imputed additional annual income of $84,000 to the plaintiff, on
the ground that her father was paying the rent for her current residence.
Maintenance and child support were based upon imputed income of $270,000 for
the defendant and $169,000 for the plaintiff.<span style="mso-spacerun: yes;">
</span>Based upon those figures, the computation of maintenance pursuant to Domestic
Relations Law § 236(B)(6) resulted in a negative number. The Supreme Court
nevertheless awarded the plaintiff maintenance of $1,000 per month for a period
of 12 months. Child support was awarded to the plaintiff based upon the
defendant’s imputed income of $270,000 and the plaintiff’s imputed income of
$169,000, utilizing the statutory cap of $148,000 for combined parental income.
Based on the income imputed to each party, the court determined that the
defendant would be responsible for 61% of all statutory add-on expenses and the
plaintiff would be responsible for 39% of such expenses. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that a party’s maintenance
and child support obligations commence, and are retroactive to, the date the
applications for maintenance and child support were first made,” which, in this
case, was the date of the commencement of this action and that the award of
spousal maintenance and child support to the plaintiff should have been
retroactive to August 8, 2017.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that imputing an additional
$84,000 in annual income to the plaintiff, based upon the fact that her father
paid her rent so she could live apart from the defendant during the pendency of
this action, was an improvident exercise of discretion. This gift was made by
the plaintiff’s father after the action was commenced, and was at least in part
a response to the fact that the defendant was not making any pendente lite
support payments Moreover, the term of the lease for the plaintiff’s residence
was only 19 months, commencing on December 1, 2017. The plaintiff’s father had
no legal obligation to provide his daughter with housing, and there was no
indication in the record that his payment of rent would continue once the
19–month lease period ended.. Under these circumstances, it was not appropriate
to impute the rental payments made by the plaintiff’s father as income to the
plaintiff.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Supreme Court declined to award the plaintiff an
equitable share of the security deposit of $12,000 given to the landlord of the
marital residence, reasoning that the plaintiff did not prove that the deposit
was paid with marital funds and that, since the lease of the marital residence
had not ended, it was not known whether the security deposit would be returned.
However, there was no indication in the record that the security deposit, which
was given after the parties had been married for approximately seven years,
somehow derived from separate property, and thus, the presumption that the
security deposit was paid with marital property, and therefore was subject to
equitable distribution, was not overcome. Since there was no reason an
equitable distribution award cannot be made to the plaintiff on a contingent
basis, the court should have awarded the plaintiff 50% of so much of the
security deposit as is returned by the landlord upon the termination of the
lease on the marital residence.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: red;">Appellate Division,
Third Department</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><span style="font-family: arial;"><b><span lang="EN-CA" style="font-size: 11pt;"> </span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc114311158"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Judiciary Law § 14 provides
that<span style="mso-spacerun: yes;"> </span>A judge shall not sit as such in,
or take any part in the decision of, an action, claim, matter, motion or
proceeding . . . in which he [or she] has been attorney or counsel. This
prohibition is absolute and establishes a bright -line disqualification rule.</span></a><span style="mso-bookmark: _Toc114311158;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of John II, v Kristen JJ., --- N.Y.S.3d ----, 2022 WL 4098523, 2022 N.Y.
Slip Op. 05132) (3d Dept.,2022) pursuant to a November 2012 order issued upon
the father's default, the mother was granted sole legal and physical custody of
the children. Subsequently, in June 2017, the parties entered into an agreement
through which the mother retained sole legal and physical custody of the
children, and the father was "entitled to weekly supervised visitation.
The<span style="mso-spacerun: yes;"> </span>father filed a petition for
modification of June 2017 order. He also sought Family Court's
disqualification, noting that the November 2012 order listed "Keith M.
Bruno" as the mother's counsel in those proceedings. Family Court denied
the father's disqualification<span style="mso-spacerun: yes;"> </span>motion.
Following a fact-finding hearing where the mother was the only witness, Family
Court dismissed the father's petition for failure to establish a prima facie
case. The Appellate Division agreed with the father that<span style="mso-spacerun: yes;"> </span>Family Court erred in denying his motion to
have the court be disqualified from the matter. It observed that<span style="mso-spacerun: yes;"> </span>"A judge shall not sit as such in, or
take any part in the decision of, an action, claim, matter, motion or
proceeding . . . in which he [or she] has been attorney or counsel"
(Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3
[E] [1] [b] [i]). "This prohibition is absolute and establishes a bright
-line disqualification rule". Although neither the Judiciary Law nor the
Rules Governing Judicial Conduct define "an action, claim, matter, motion
or proceeding" (Judiciary Law § 14), Black's Law Dictionary defines a
"claim" as "[t]he assertion of an existing right . . . to an
equitable remedy, even if contingent or provisional" (Black's Law
Dictionary [11th ed 2019] , claim). When the father moved for Family Court's
recusal and/or disqualification, the judge explained that he did not recall
such representation from eight to nine years prior. The November 2012 default
order and the order on appeal both dealt with the custodial arrangement between
the same two parents regarding the same three children. Under these
circumstances, where the two proceedings involved the same claim of custody,
guardianship, or visitation for the same children, Family Court was statutorily
disqualified from the proceedings. The order was reversed and the matter
remitted before a different judge for a new fact-finding hearing.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc114311159"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The fact that testing has
already been conducted when a court holds a hearing on equitable estoppel does
not mandate reversal of a subsequent order determining paternity. A Support
Magistrate cannot lawfully order a party to submit to genetic testing before
the party is represented by counsel.</span></a><span style="mso-bookmark: _Toc114311159;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of Danielle E.P., v. Christopher N.,
172 N.Y.S.3d 782, 2022 N.Y. Slip Op. 04841(4<sup>th</sup> Dept.,2022)<span style="mso-spacerun: yes;"> </span>Respondent and petitioner-respondent
(petitioner) had sexual relations in September 2015 and January 2016. At the
time that petitioner gave birth to the child, she was in a relationship with
another man who was identified as the child’s father on the birth certificate
and who signed an acknowledgment of paternity. Shortly after the child was
born, petitioner’s relationship with that man ended. Petitioner then informed
respondent that he might be the child’s father and filed a paternity petition
against him. Based on the acknowledgment of paternity, Family Court dismissed
the petition. After the acknowledgment of paternity was vacated, petitioner
commenced this proceeding. At the outset of the proceeding, the Support
Magistrate ordered genetic marker testing, which established that respondent
was the child’s biological father. The Support Magistrate thereafter
transferred the matter to Family Court for a hearing on respondent’s defense of
equitable estoppel. Following the hearing, the court adjudicated respondent to
be the child’s father. The Appellate Division affirmed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division observed that the court should
consider paternity by estoppel before it decides whether to test for biological
paternity. Nevertheless, the fact that testing has already been conducted when
a court holds a hearing on equitable estoppel does not mandate reversal of a
subsequent order determining paternity. Respondent had a full and fair
opportunity to litigate his equitable defense, which the court rejected
following the hearing, and<span style="mso-spacerun: yes;"> </span>respondent did<span style="mso-spacerun: yes;"> </span>not challenge the court’s determination that
he failed to establish that equitable estoppel applied. Moreover, the court
made clear that, notwithstanding the results of the genetic marker test, the
paternity petition would have been denied had respondent met his burden of
proof on equitable estoppel.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected respondent’s contention
that the Support Magistrate erred in ordering genetic testing before respondent
was represented by counsel. Although a respondent in any proceeding under
Family Court Act article 5 in relation to the establishment of paternity has a
right to the assistance of<span style="mso-spacerun: yes;"> </span>counsel<span style="mso-spacerun: yes;"> </span>respondent cited no authority for the proposition
that a Support Magistrate cannot lawfully order a party to submit to genetic
testing before the party is represented by counsel.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>The
Appellate Division rejected respondents contention that the court erred in
denying his motion to vacate the order that adjudicated him to be the child’s
father. Respondent’s claim of estoppel was based on the nature and extent of
the relationship between the boyfriend and the child, and there was
insufficient evidence that the Petitioners boyfriend ever held himself out as
the child’s father.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc114311160"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Where father’s adjusted gross
income was in excess of $2 million a year it was inappropriate to award to
guideline maintenance and child support only up to the cap. Court utilized an
adjusted cap of $800,000 for its calculations, or approximately one-third of
the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d 617 (1st
Dept 2017)</span></a><span style="mso-bookmark: _Toc114311160;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In E.A., v. J.A., Slip Copy, 2022 WL 3905783 (Table),
2022 N.Y. Slip Op. 50833(U) 2022 WL 3905783 (Sup. Ct., 2022) the parties were
married on June 11, 2017 in New York. This divorce action was commenced on
April 18, 2022. There were<span style="mso-spacerun: yes;"> </span>two children
of the marriage: one born in October 2018, and the other born in April 2021.
The marital residence, where the parties resided with their two children, was a
townhouse valued at approximately $8 million located in the Upper East Side of
Manhattan. The Husband, who was 31, was the co-vice president of, a
telecommunications company co-founded by his father. The Wife, who was 27, did
not make an income and has no assets. In the year of 2020, the Husband totaled
an adjusted gross income of $2,604,004. In 2021, the year before this action
was commenced, the husband earned approximately $2,587,530.62. The parties
drive luxury automobiles, had access to numerous perquisites through
Defendant’s corporation and spend thousands of dollars per month on clothing
and accessories including from retailers such as Bergdorf Goodman, Chanel, and
Bottega Venetta. Their children attended a private preschool, the parties
traveled by private jet on high end vacations throughout the world, had
household staff, regularly ate at luxury restaurants and spent thousands of
dollars on Kosher groceries, and summered in Deal, New Jersey at the $7 million
mansion owned by Defendant’s family. The Court determines it was inappropriate
to award the guideline maintenance and child support only up to the cap. It
utilized an adjusted cap of $800,000 for its calculations, or approximately
one-third of the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d
617 [1st Dept 2017][upholding use of $800,000 adjusted cap]). Using this cap
the sum total Defendant would have to pay to Plaintiff each month would be
$28,894.69. However, the Court found that this award was too high relative to
the total amount spent in 2021, and in light of the significant expenses and
carrying costs already being covered by Defendant, including the parties’
townhouse, as well as paying the childcare staff and add-on expenses. The Court
found that an amount of $24,000 in unallocated support adequately reflected a
support level that met the needs and continuation of the children’s and
Plaintiff’s lifestyle. The award was unallocated because, many of the expenses
were intertwined and at this early phase of the action more discovery was
needed to fully understand the expenses of the parties and children.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Defendant was ordered to pay the Plaintiff’s interim
counsel fees of $250,000 and to pay Plaintiff’s interim expert fees of $75,000
subject to reallocation at trial and without prejudice to further applications.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><span style="font-family: arial;">August 30, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Second Department<br />
<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc112826380"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">A petitioner who does not sign
an acknowledgment of paternity has standing pursuant to Family Court Act § 522
to seek an adjudication that he was the legal father of the child.</span></a><span style="mso-bookmark: _Toc112826380;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Escobar v Pagan, --- N.Y.S.3d ----, 2022 WL 3221775, 2022 N.Y. Slip
Op. 04912 (2d Dept.,2022) the subject child was born in September 2013, to
Milagros P. ( mother). On September 13, 2013, the mother and Escobar signed an
acknowledgment of paternity which stated that Escobar was the child’s
father.<span style="mso-spacerun: yes;"> </span>The mother also was in an
intimate relationship with Michael M.(Michael), and in October 2013 she agreed
to a private DNA test. The results of that test indicated that Michael was the
child’s biological father. Michael voluntarily paid child support to the mother
in the amount of $600 per month. The mother also allowed Michael to have
regular visitation with the child. In 2019, Escobar commenced a proceeding for
parental access with the child, while Michael commenced a paternity proceeding
to have himself declared the child’s father. Family Court directed the mother,
Escobar, and Michael to undergo genetic marker testing. Based on the results of
that testing, which indicated that Michael was the child’s biological father,
the court issued an order adjudicating Michael to be the child’s father, an
order vacating the acknowledgment of paternity, and an order dismissing
Escobar’s petition for parental access for lack of standing. The Appellate
Division affirmed. It held that the best interests of the child were served by
adjudicating Michael’s status, since the child already considered Michael to be
her father. Further, the evidence adduced at the hearing indicated that Michael
provided a stable resource for the child. Therefore, equitable estoppel was not
applicable here. Although a petitioner who does not sign an acknowledgment of
paternity does not have standing to challenge the acknowledgment of paternity
pursuant to Family Court Act § 516–a, Michael nevertheless had standing
pursuant to Family Court Act § 522 to seek an adjudication that he was the
legal father of the child. Once the Family Court determined that Michael was
entitled to such an adjudication pursuant to Family Court Act § 522, it
properly exercised its authority to vacate the acknowledgment of paternity
executed by Escobar. In view of the order adjudicating Michael to be the
child’s father, Escobar’s petition for parental access was properly dismissed
for lack of standing.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc112826381"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A
person who is not a party to a judicial surrender and is not authorized by
statute to file a petition seeking to vacate a judicial surrender lacks
standing to file such a petition.</span></a><span style="mso-bookmark: _Toc112826381;"></span><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Elizabeth W,--- N.Y.S.3d ----, 2022 WL
3640856, 2022 N.Y. Slip Op. 05039 (2d Dept.,2022) the child Elizabeth W.
appealed from an order of the Family Court, which denied her petitions to
vacate the judicial surrenders of Gabriella W. and Aleah W., denied those
branches of the mother’s petition which sought the same relief, and dismissed
the paternal grandfather’s petitions for custody of Gabriella W. and Aleah W.,
contending that all three children should reside together with the paternal
grandfather. The Appellate Division held, inter alia, that appellant, was
aggrieved by the portion of the order denying her own petitions to vacate the
judicial surrenders of Gabriella W. and Aleah W., since, in those petitions,
the appellant “asked] for relief but that relief [was] denied in whole or in
part”. Nonetheless, the appellant was not a party to, and was not the subject
of, the judicial surrenders of Gabriella W. and Aleah W. The statutes governing
the Family Court’s review of a failure of a material condition of a judicial
surrender authorize the filing of petitions by the relevant agency, by the
parent, and by the “attorney for the child ” (Family Court Act § 1055–a[a]; see
Social Services Law § 383–c[6][c] [petition may be filed by agency, parent, or
“law guardian for the child”]). The statutory reference to “the child”<span style="mso-spacerun: yes;"> </span>means the child who is the subject of the
judicial surrender that is under review. Since adoption in this State is solely
the creature of ... statute, statutory provisions regarding adoptions must be
strictly construed. Thus, a person who is not a party to a judicial surrender
and is not authorized by statute to file a petition seeking to vacate a
judicial surrender lacks standing to file such a petition. Although the
appellant had standing pursuant to Domestic Relations Law § 71 to apply for
sibling visitation(and she was, in fact, granted sibling visitation), seeking
to become involved in litigating a parent’s judicial surrender of a sibling for
the purpose of adoption is an entirely different matter. Since the appellant
was not a party to the judicial surrenders of Gabriella W. and Aleah W., and
was not a person authorized to file a petition seeking to vacate either of
those judicial surrenders, she did not have standing to file such petitions.
Therefore, on that basis, her petitions were properly denied.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc112826382"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Allegations in the petition
were sufficient to warrant a hearing to determine if the Court had emergency
jurisdiction to make an initial child custody determination under Domestic
Relations Law § 76–c</span></a><span style="mso-bookmark: _Toc112826382;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Chester HH., v. Angela GG.,--- N.Y.S.3d
----, 2022 WL 3449008, 2022 N.Y. Slip Op. 05002 (3d Dept.,2022)<span style="mso-spacerun: yes;"> </span>the Appellate Division held that the
allegations set forth in the petition were sufficient to warrant Family Court
to conduct a hearing to determine if the Court had emergency jurisdiction to
make an initial child custody determination (see Domestic Relations Law §
76[1][a]-[d])., Domestic Relations Law § 76–c provides that “New York courts
have temporary emergency jurisdiction if the child is present in this state and
it is necessary in an emergency to protect the child, a sibling or parent of
the child. ’The father’s petition included allegations concerning, among other
things, that the mother engaged in a pattern of neglect by failing to properly
dispose of garbage – causing a rodent infestation in the home; that the home
was without electricity and hot water for lengthy periods of time on numerous
occasions; that the mother has mental and physical conditions rendering her
unable to care for the house or the child; that the mother keeps the child out
of school to ensure that the child is available to attend to her needs; that
the mother failed to take the child to the doctor for approximately four years;
and that she has verbally and mentally abused the child. The petition further
contained allegations that the child’s maternal uncle punched holes in the
walls of the mother’s residence while the child was present, was verbally abusive
toward the child – including regarding the child’s sexual orientation – and
that the uncle may have sexually assaulted and/or raped the child on two
occasions. Finally, the petition alleged that the child’s maternal grandmother
was verbally abusive and unsupportive of the child’s gender identity. Family
Court erred in relying on<span style="mso-spacerun: yes;"> </span>unsigned and
redacted MDHHS report, containing vague and contradictory hearsay statements
made by an MDHHS caseworker, as support for its decision not to conduct a
hearing. The record confirmed that the MDHHS report was the result of a
less-than-thorough investigation that failed to address all of the father’s
allegations.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Appellate
Division, Fourth Department<br />
<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--></span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc112826383"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Collateral
estoppel applies only when<span style="mso-spacerun: yes;"> </span>the issues in
both proceedings are identical .The doctrine of res judicata requires “a valid
final judgment” on a prior action between the parties. A divorce settlement
tainted by duress is void ab initio not merely voidable, and is, not subject to
ratification by the mere passage of time.</span></a><span style="mso-bookmark: _Toc112826383;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Nagi v Ahmed, 207 A.D.3d 1149, 172 N.Y.S.3d 286, 2022
N.Y. Slip Op. 04461<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">(4<sup>th</sup>
Dept.,2022) Plaintiff commenced an action seeking to vacate in part an amended
judgment of divorce entered in 2018 and to set aside the parties’ property
settlement agreement, which was incorporated but not merged into the amended
judgment of divorce. The complaint alleged, among other things, that plaintiff
signed the agreement due to “extraordinary duress and pressure” exerted on her
by defendant, among other people, and that the terms of the agreement were so
favorable to defendant as to render it unconscionable and thus unenforceable.
Defendant cross-moved for summary judgment on his affirmative defenses seeking
to dismiss the complaint on the grounds of collateral estoppel and
ratification. Supreme Court granted the cross motion, concluding that plaintiff
was collaterally estopped from challenging the agreement because she sought
similar relief by way of a motion she filed in July 2018 seeking to modify
certain provisions of the agreement and to enforce others. The Appellate
Division reversed. It held that collateral estoppel applies when (1) the issues
in both proceedings are identical, (2) the issue in the prior proceeding was
actually litigated and decided, (3) there was a full and fair opportunity to
litigate in the prior proceeding, and (4) the issue previously litigated was
necessary to support a valid and final judgment on the merits. Here, the motion
that plaintiff filed in July 2018 did not seek to vacate the amended judgment
of divorce or to set aside the agreement. The issues in this action were not
identical to those raised by plaintiff in her motion, and defendant thus failed
to meet his initial burden on his cross motion of establishing that collateral
estoppel precludes plaintiff from challenging the agreement. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected the contention that to
the extent that defendant contended, as an alternative ground for affirmance,
that this action was barred by res judicata because plaintiff could have
pursued her current claims in the 2018 motion, we reject that contention. A
party seeking to set aside a settlement agreement must do so in a plenary
action; such relief cannot be obtained on motion. Moreover, although plaintiff
did commence a plenary action in August 2018 to set aside the agreement on
grounds of fraud, duress, and overreaching, she abandoned that action, and a
final judgment was never entered on it. The doctrine of res judicata requires,
among other things, “a valid final judgment” on a prior action between the
parties which was lacking here. There never had been a determination on the
merits of plaintiff’s claims that she signed the agreement under duress and
that the agreement is unconscionable.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected defendant’s contention,
raised as an alternative ground for affirmance, that the court properly granted
the cross motion because plaintiff ratified the agreement by acquiescing in it
and receiving the benefits under it for a considerable period of time. A
divorce settlement tainted by duress is void ab initio not merely voidable, and
is, therefore, not subject to ratification by the mere passage of time” (Perl
v. Perl, 126 A.D.2d 91, 96, 512 N.Y.S.2d 372 [1st Dept. 1987]). <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc112826384"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Nothing intrinsically
dangerous about leaving two children to eat and watch television while the
mother was in the bathroom with the door open.</span></a><span style="mso-bookmark: _Toc112826384;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of Silas W, 171 N.Y.S.3d 290, 2022 N.Y. Slip Op. 04506 (4<sup>th</sup>
Dept.., 2022) the Appellate Division agreed with the mother that petitioner
failed to establish that she neglected the children. Although “[a]n isolated
accidental injury may constitute neglect if the parent was aware of the
intrinsic danger of<span style="mso-spacerun: yes;"> </span>the situation” here,
there was nothing intrinsically dangerous about leaving two of the children to
eat and watch television while the mother was in the bathroom with the door
open. The record established that the mother knew that one of her children was
sometimes aggressive towards his younger siblings, but there was no evidence in
the record that she was aware that he may open a locked window, remove the
screen, and drop his sibling from a height of two stories. In making that
determination, it noted that the window involved in the incident was not deemed
dangerous by a caseworker during a home visit less than a month before the
incident.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc112826385"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Contentions raised for the
first time in a reply brief are not properly before the Appellate Division</span></a><span style="mso-bookmark: _Toc112826385;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
S.P., v. M.P., 207 A.D.3d 1213, 171 N.Y.S.3d 687 (4<sup>th</sup> Dept., 2022)
the Appellate Division held that<span style="mso-spacerun: yes;">
</span>contentions raised for the first time in a reply brief were not properly
before the court<span style="mso-spacerun: yes;"> </span>(see Matter of Carroll
v. Chugg, 141 A.D.3d 1106, 1106, 34 N.Y.S.3d 848 [4th Dept. 2016]; Cunningham
v. Cunningham, 137 A.D.3d 1704, 1705, 28 N.Y.S.3d 751 [4th Dept. 2016]). It
also held that the<span style="mso-spacerun: yes;"> </span>issues raised by the
AFC were not properly before it where the AFC did not file a notice of appeal
(see Matter of Noble v. Gigon, 165 A.D.3d 1640, 1641, 82 N.Y.S.3d 923 [4th
Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941819 [2019]; Carroll, 141
A.D.3d at 1106, 34 N.Y.S.3d 848<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc112826386"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Court has discretion to limit,
modify or vacate the automatic stay imposed by the posting of a Bond for
payment of counsel fee award pending appeal</span></a><span style="mso-bookmark: _Toc112826386;"></span><!--[if supportFields]><span lang=EN-CA style='mso-ansi-language:
EN-CA;text-decoration:none;text-underline:none'><span style='mso-element:field-begin'></span>
SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span lang=EN-CA
style='mso-ansi-language:EN-CA;text-decoration:none;text-underline:none'><span
style='mso-element:field-end'></span></span><![endif]--><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In B.N., v. M.N.,.2022 WL 3591083( Sup. Ct, 2022) this
Court, awarded the Plaintiff $75,000.00 for interim counsel fees, The defendant
posted a Bond to stay the payment pending appeal. Supreme Court held that it
has the authority to limit, modify or vacate the stay imposed by the posting of
the Bond, and it vacated the Bond. It held that staying enforcement of an award
of interim counsel fees to the nonmonied spouse was, in and of itself,
untethered from the intent of DRL § 237(a) and at odds with prevailing
case-law. The Court found that the posting of the Bond with respect to the
award of interim counsel fees as ordered by this Court functioned, in effect as
a denial of the application for fees. (Citing Weschler v. Weschler, 8 Misc 3d
328 (Supreme Court New York County 2005). In Weschler, Justice Gische wrote
that “...[t]he fact that the stay is automatic does not remove it from the
purview of the court’s discretion to otherwise vacate, limit or modify the
stay. Moreover, the statute expressly gives the court issuing the order
appealed from such discretion...” It noted that in Karg v. Kern 125 AD3d 527
(1st Dept. 2015)., the First Department unanimously affirmed an Order of the
New York County Supreme Court, which, inter alia, vacated an automatic stay
obtained therein.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc112826387"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Veterans military disability
retirement pay, and VA financial compensation are not subject to equitable
distribution</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In B.C., v. M.C., --- N.Y.S.3d ----, 2022 WL 3591082,
2022 N.Y. Slip Op. 22266 (Sup Ct, 2022) defendant’s request for an Order
directing that the Plaintiff’s military disability retirement pay, and VA
financial compensation were<span style="mso-spacerun: yes;"> </span>subject to
equitable distribution was denied. Plaintiff had medical issues that rendered
her permanently disabled, entitling her to disability retirement benefits from
the United States Coast Guard. The Court observed that ”Department of Defense
Financial Management Regulation, Volume 7B . . . addresses and explains the
retired pay system[.] Pursuant to § 290701 (C) (5) if the percentage of
disability is chosen, then it is not part of disposable retirement pay. The
Uniformed Services Former Spouse’s Protection Act (10 USC § 1408 (a) (4) (iii))
defines disposable retired pay as “the total monthly retired pay to which a
member is entitled less amounts which in the case of a member entitled to
retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal
to the amount of retired pay of the member under that chapter computed using
the percentage of the member’s disability on the date when the member was
retired (or the date on which the member’s name was placed on the temporary
disability retired list).” In 1982 Congress passed “the Uniformed Services
Former Spouses’ Protection Act, 10 U.S.C. § 1408. Congress wrote that a State
may treat veterans’ “disposable retired pay” as divisible property, i.e.,
community property divisible upon divorce. However, the new Act expressly
excluded from its definition of “disposable retired pay” amounts deducted from
that pay “as a result of a waiver . . . required by law in order to receive”
disability benefits.” (see Howell v Howell, 137 S Ct 1400 [2017]). The Third
Department has held<span style="mso-spacerun: yes;"> </span>“that a court in an
action for divorce or separation cannot order as spousal maintenance the
allocation of compensation received by a veteran derived from military pay
waived in order for the retiree to receive veterans’ disability benefits.” (see
Hoskins v Skojec, 265 AD2d 706 [3d Dept 1999]; Mills v Mills, 22 AD3d 1003 [3d
Dept 2005]). VA benefits are awarded based solely on a disability that has
resulted from injury or disease contracted in the line of duty and as such
these benefits are separate property and are “not subject to equitable
distribution[.]” (see Murphy v Murphy, 126 AD3d 1443 [4th Dept 2015]). <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Family Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc112826388"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Under
the Family First Prevention Services Act (FFPSA), which is intended to ensure
that children removed from their homes do not languish in restrictive,
congregate settings unnecessarily the court must determine the most appropriate
and least restrictive placement possible</span></a><span style="mso-bookmark: _Toc112826388;"></span><!--[if supportFields]><span lang=EN-CA style='mso-ansi-language:
EN-CA;text-decoration:none;text-underline:none'><span style='mso-element:field-begin'></span>
SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span lang=EN-CA
style='mso-ansi-language:EN-CA;text-decoration:none;text-underline:none'><span
style='mso-element:field-end'></span></span><![endif]--><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="font-size: 11pt;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Felipe R.,172 N.Y.S.3d 350, 2022 N.Y. Slip
Op. 22216 (Fam Ct, 2022) ACS filed a motion seeking an order that continued
qualified residential treatment facility placement was necessary to adequately
address the child’s needs.<span style="mso-spacerun: yes;"> </span>A hearing was
held pursuant to SSL § 393(2), F.C.A. § 353.7(3), § 756-b(3), § 1055-c(2), §
1091-a, and § 1097, through which the Family First Prevention Services Act
(FFPSA), 42 U.S.C. § 672 and § 675a are codified in New York. This statute, in
relevant part, is intended to ensure that children removed from their homes do
not languish in restrictive, congregate settings unnecessarily. The Court was
asked to determine the most appropriate and least restrictive placement
possible for Felipe, who had autism. The Court pointed out that in order to
maintain his current placement, the Court must determine whether 1) Felipe’s
needs can/cannot be met through a placement in family-based foster care; 2) a
group placement is the most effective and appropriate placement; 3) placement is
the least restrictive possible placement given Felipe’s needs; and 4) such
placement is consistent with the long- and short-term planning goals in place
for the subject child. The Court found that ACS<span style="mso-spacerun: yes;">
</span>failed to meet its burden under FFPSA and FCA 1055-c.<span style="mso-spacerun: yes;"> </span>Placement of the child alleged to be
neglected in qualified residential treatment facility was not the<span style="mso-spacerun: yes;"> </span>least restrictive placement possible and
continued placement was not appropriate under Family First Prevention Services
Act (FFPSA). Although the child was diagnosed with autism and struggled with
self-soothing, hygiene, expressing his needs, and other basic tasks, until the
filing of neglect petition, the child had been living with his mother and
siblings where his basic needs were met without extensive additional services,
and services that child received at facility were available in the community.
Such placement was not consistent with the child’s short- or long-term needs,
and, thus, child’s continued placement in facility was not appropriate under Family
First Prevention Services Act (FFPSA). The<span style="mso-spacerun: yes;">
</span>goal was for child to return home, the child was only ten years old and
was among the youngest residents at facility, the child did not transition to
group care easily, and the child, as shown through his connection to his
current family, would benefit from long-term relationships. To find otherwise
would essentially mean that any child suffering from relatively severe autism
can only live in a group facility. It held that under the requirements of
Family First, ACS must seek a therapeutic foster home or, if after the 1028
hearing is complete, Felipe is returned home, provide adequate at home services
consistent with Felipe’s short- and long-term needs.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><span style="font-family: arial;">August 10, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010339"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court has jurisdiction,
in a juvenile delinquency proceeding, to entertain an application for the
expungement of DNA evidence</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> </span><!--[if supportFields]><span lang=EN-CA
style='mso-ansi-language:EN-CA;text-decoration:none;text-underline:none'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='mso-ansi-language:EN-CA;text-decoration:none;text-underline:
none'><span style='mso-element:field-end'></span></span><![endif]--><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Francis O.,170 N.Y.S.3d 71, 2022 N.Y. Slip
Op. 03969 (1<sup>st</sup> Dept.,2022) the Appellate Division held that<span style="mso-spacerun: yes;"> </span>in a proper case, Family Court has
jurisdiction, in a juvenile delinquency proceeding, to entertain an application
for the expungement of DNA evidence pursuant to Executive Law § 995–c(9)(b). It
further found that under the facts presented, it had not been established that
appellant abandoned the cup containing his DNA material or waived his privacy
interest in the cup, and therefore had standing to challenge the taking of a
sample of his DNA, which was obtained without his knowledge or consent and in
violation of his constitutional and due process rights. It also found that
under the totality of the circumstances, it was an improvident exercise of the
court’s discretion to deny expungement of his DNA sample and all related
information.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010340"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A
permanency goal of free for adoption does not lead to a petition to terminate
parental rights</span></a><span style="mso-bookmark: _Toc111010340;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext;"><span style="mso-tab-count: 1;"> </span>In
Matter of Mahkayla W, 206 A.D.3d 599, 170 N.Y.S.3d 551, 2022 N.Y. Slip Op.
04231(1<sup>st</sup> Dept.,2022) a neglect proceeding, the Appellate Division
found that the father’s argument that his due process rights were violated by
the change in the permanency goal was not grounded in the statute and would
prejudice the subject children in obtaining permanency. A permanency goal of
free for adoption does not lead to a petition to terminate parental rights,
since the statute allows the court to adjudicate a particular goal yet direct
the agency to engage in concurrent planning (see Family Court Act § 1089
[c][4][iii], [d][2][iv]).</span></b><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Appellate Division,
Second Department<br />
<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--></span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010341"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Where a separation agreement
contains a provision that expressly provides that modifications must be in
writing, an alleged oral modification is enforceable only if there is part
performance that is unequivocally referable to the oral modification</span></a><span style="mso-bookmark: _Toc111010341;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Kirk v Kirk, --- N.Y.S.3d ----, 2022 WL 2962592, 2022
N.Y. Slip Op. 04718 (2d Dept.,2022) the<span style="mso-spacerun: yes;">
</span>parties were married on September 16, 1984, and had three children. On
January 9, 2007, the parties entered into a written separation agreement. The
separation agreement, as modified, was incorporated but not merged into the
judgment of divorce. The Appellate Division found that the defendant
demonstrated that the plaintiff breached the terms of the parties’ agreement,
as modified, by failing, inter alia, to pay the real estate taxes on the former
marital residence and to reimburse her for expenses incurred relative to the
utilities, gardening, maintenance, and repairs. It held that where, as here,
the parties’ separation agreement contains a provision that expressly provides
that modifications must be in writing, an alleged oral modification is
enforceable only if there is part performance that is unequivocally referable
to the oral modification. In order to be unequivocally referable, conduct must
be inconsistent with any other explanation.<span style="mso-spacerun: yes;">
</span>Contrary to the plaintiff’s contention, he failed to allege acts of part
performance that were unequivocally referable to the alleged oral agreement to
modify the terms of the parties’ separation agreement sufficient to obviate the
need for a writing.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010342"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Offense petition
against Respondents Attorney properly dismissed for lack of subject matter
jurisdiction.<span style="mso-spacerun: yes;"> </span>Attorney functioning only
as counsel excluded from the definition of “intimate relationship”</span></a><span style="mso-bookmark: _Toc111010342;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter Uzamire v. Idehen, --- N.Y.S.3d ----, 2022 WL 2962620 (Mem), 2022 N.Y.
Slip Op. 04729 (2d Dept.,2022) petitioner commenced related family offense
proceedings against her husband, Ehigie Uzamere<span style="mso-spacerun: yes;">
</span>and against Uzamere’s attorney, Austin I. Idehen. Family Court, inter
alia, without a hearing, dismissed the petition asserted against Idehen for
lack of subject matter jurisdiction. The Appellate Division affirmed. The
Family Court is a court of limited jurisdiction, and thus, it “cannot exercise
powers beyond those granted to it by statute.” Pursuant to Family Court Act §
812(1)(e), the Family Court’s jurisdiction in family offense proceedings is
limited to certain proscribed criminal acts that occur “between spouses or
former spouses, or between parent and child or between members of the same
family or household.” The definition of “members of the same family or
household” includes “persons who are not related by consanguinity or affinity
and who are or have been in an intimate relationship.” Expressly excluded from
the definition of “intimate relationship” are “casual acquaintance[s]” and
“ordinary fraternization between two individuals in business or social
contexts” (Family Ct Act § 812[1][e]). Petitioner conceded that Idehen was not related
to her by consanguinity and she did not allege any interactions with Idehen
other than when Idehen functioned as Uzamere’s counsel. Thus, the court
properly dismissed the petition asserted against Idehen for lack of subject
matter jurisdiction. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010343"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Supreme Court was not required
to hold a hearing on custody enforcement petition which did not seek any relief
related to custody</span></a><span style="mso-bookmark: _Toc111010343;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Soumare v White, 206 A.D.3d 661, 170 N.Y.S.3d 148,
2022 N.Y. Slip Op. 03519 (2d Dept.,2022) in an order dated October 14, 2016,
the Supreme Court awarded custody of the subject child, born in 2013, to the
mother and directed, inter alia, that the father would have parental access
with the child every Sunday for four hours. In March 2021, the father filed a
petition to enforce the order, asserting that the mother was violating the
order by failing to cooperate with its parental access provisions. The petition
alleged, among other things, that on a recent Sunday, when the father arrived
10 minutes late to pick up the child for parental access, the mother left the
pick-up location with the child, did not permit the parental access to occur,
and then failed to bring the child to the next four parental access sessions.
The Supreme Court addressed the father’s petition by conducting two
conferences, at which both parties made statements under oath. The court then
issued an order dated April 28, 2021, which, in large part, restated the
provisions of the order dated October 14, 2016. In addition, the order added
one hour to the father’s weekly parental access sessions, and included a
provision stating that “[t]here is a 15 min window for all pick up and drop
off’s.” The Appellate Division affirmed. It held that the Supreme Court was not
required to hold a hearing on his enforcement petition. The father’s petition
did not involve a custody determination, which, as a general matter, “should be
rendered only after a full and plenary hearing and inquiry”. The petition did
not seek any relief related to custody, but rather alleged only that the mother
failed to drop off the child for parental access as required by the order dated
October 14, 2016, and thus sought enforcement of that order. The court, after
eliciting sworn statements from both parties, fashioned a workable remedy by
reminding both parties of their obligations, awarding the father an additional
hour of parental access each week, and directing that a 15–minute lateness
window would apply to both the father’s pick-up time and the mother’s drop-off
time.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010344"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Improper to grant summary
judgment motion where facts if established, raised issues concerning whether
the wife was meaningfully represented during the abbreviated negotiations, and
also raised an inference that the husband did not intend on engaging in a good
faith negotiation of the agreement</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In Spiegel v Spiegel, 206
A.D.3d 1178 (3d Dept.,2022) the Plaintiff (husband) and defendant (wife) were
married in February 2011 after a lengthy period of cohabitation beginning in
2001. The parties had four children together (born in 2007, 2009, 2010 and
2017). Two days before they were married, the parties executed a prenuptial. In
June 2019, the husband commenced an action for divorce. The wife answered and
asserted two counterclaims, seeking an award of maintenance and a judgment
setting aside the agreement as invalid. Supreme Court deemed the agreement
valid and dismissed the wife’s counterclaims. The Appellate Division held,,
inter alia,<span style="mso-spacerun: yes;"> </span>viewing the evidence in the
light most favorable to the wife, there were issues of fact raised by the
circumstances surrounding the execution of the agreement that preclude an award
of summary judgment. Prior to the marriage there was a pronounced financial
disparity between the husband and the wife, who had no assets at the time of
the marriage and was previously employed by the state. After cohabitating for
approximately 10 years, the parties decided to get married and, at the
husband’s insistence, resolved to enter into a prenuptial agreement. According
to the wife, she had no discussion or input on counsel of her choice, and
simply was forwarded a retainer agreement and statement of client rights from
her counsel’s office, which she was unable to open and never executed. After
consulting with his counsel over several days, the husband approved an initial
draft of the agreement, which was forwarded to the wife’s counsel on January
27, 2011. Thereafter, negotiations on the agreement between counsel began in
earnest on February 1, 2011 and continued over a three-day period. The parties
executed a final version of the agreement on February 4, 2011, two days before
they were married. The wife stated that she did not receive an initial draft of
the agreement prior to consulting with counsel. While the wife conceded that she
had a single conversation with her counsel that lasted between 30 and 45
minutes, the record failed to definitively establish that she had any further
meaningful discussions with counsel during the ensuing negotiations. After that
discussion, the wife’s counsel sent several proposed changes concerning the
agreement to the husband’s counsel. The record demonstrated that, after
receiving an email from his counsel concerning the proposed changes, the
husband responded to his counsel that he understood the role of the wife’s
counsel as one in which he would merely explain the terms of the proposed
agreement, rather than serve as her representative in a negotiation on its
terms. Specifically, the husband stated that he had hired the wife’s counsel
“to make sure [that the wife] fully understands the agreement,” and not “to
create friction,” “re-write the agreement” or “dig into issues he does not know
about.” The husband also provided a list of various circumstances that the
wife’s counsel did not understand and stated that he would not provide the
wife’s counsel with a detailed list of his bank accounts because he was out of
town and that the wife was already familiar with his finances. The wife sharply
disputed the husband’s representation, claiming that she had little knowledge
of the extent of the husband’s finances beyond some basic knowledge as to
certain businesses he operated. The wife also averred that she and the husband
had minimal discussions pertaining to the agreement beyond his bare statements
that a prenuptial agreement was necessary to protect his business interests.
The wife claimed that the husband told her on various occasions that without
the agreement, there would be no wedding. The wife<span style="mso-spacerun: yes;"> </span>represented that, during the negotiations,
the husband told her that the agreement was as fair as it was going to get, and
that she should just sign it and not focus on every detail. The wife stated
that the husband provided various reassurances that he would always take care
of her and that the agreement was “no big deal.” While the communications
submitted by the husband in support of his motion indicate that counsel for the
parties continued discussing potential changes to the agreement, there was
conflicting evidence establishing the extent that the wife was meaningfully
involved in those discussions. The wife averred that the first opportunity she
had to review the agreement was in Florida, at which point it was already in
its final form. These facts if established, raised issues concerning whether
the wife was meaningfully represented during the abbreviated negotiations, and
also raised an inference that the husband did not intend on engaging in a good
faith negotiation of the agreement from the outset, which, if true, would be
sufficient to establish overreaching on his part . Accordingly, it found find
that Supreme Court improperly granted the husband’s motion.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department<br />
<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010345"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Father who has promptly taken
every available avenue to demonstrate that he is willing and able to enter into
the fullest possible relationship with his under-six-month-old child is a
“consent” father even if he has not as yet actually been able to form that
relationship.</span></a><span style="mso-bookmark: _Toc111010345;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
Matter of Adoption of William, 206 A.D.3d 1696, 170 N.Y.S.3d 447, 2022 N.Y.
Slip Op. 03831 (4<sup>th</sup> Dept.,2022)<span style="mso-spacerun: yes;">
</span>the Appellate Division found that respondent-petitioner Douglas W.M.
(father) was a consent father within the meaning of Domestic Relations Law §
111 (1) (e) and there<span style="mso-spacerun: yes;"> </span>was a sound and
substantial basis to support the determination of Family Court that the father
demonstrated “his willingness to take parental responsibility” (Matter of
Raquel Marie X., 76 N.Y.2d 387, 402, 559 N.Y.S.2d 855, 559 N.E.2d 418 [1990])
It held that a father who has promptly taken every available avenue to
demonstrate that he is willing and able to enter into the fullest possible
relationship with his under-six-month-old child should have an equally fully
protected interest in preventing termination of the relationship by strangers,
even if he has not as yet actually been able to form that relationship. The
father did everything possible to manifest and establish his parental
responsibility’ under the circumstances ... He publicly acknowledged his
paternity from the outset of the pregnancy ..., and, although he did not pay
any expenses in connection with the pregnancy or the birth,” he testified that
all of those expenses were paid by the military. Moreover, prior to the child’s
birth, the father pursued paternity testing and requested and received from the
mother a commitment that he could have custody of the child, and actively began
purchasing “items” in anticipation of obtaining custody of the child upon
birth. Based on the mother’s commitment, the father enlisted the help of his
military commanding officers to obtain custody of his child, and made plans for
relatives or family friends to help care for the child until his enlistment in
the military ended. It concluded that the father established his ability to
assume custody of the child. Custody and housing are separate and distinct
concepts. A parent who lacks housing for a child is not legally precluded from
obtaining custody. Certainly, active military members should not lose custody
of a child due to their service to our country. Many parents enlist the aid of
family members to help them provide housing, including single parents who serve
in the military. That temporary inability to provide housing should not
preclude them from asserting their custodial rights to the children where, as
here, they have established their intent to embrace their parental
responsibility. The record supports the court’s findings that the father
“reasonably and sincerely believed that the biological mother would not
surrender the child for adoption ..., and that she frustrated his efforts to
become involved with the child. The evidence at the hearing established that
the mother lied to the father, telling him that she would give him custody of
the child; misled petitioners into believing that the father did not want the
child, even though she knew that he was aggressively pursuing custody; and
misled the courts by filing a false affidavit stating that no one was holding
himself out as the father. It found that there was a basis in the record to
support a court’s determination whether a father’s consent is required, and
would not disturb that determination.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010346"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Fourth Department Rules that
Absent compelling circumstances, parties to a matrimonial action should not
seek review of an order for temporary support</span></a><span style="mso-bookmark: _Toc111010346;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext;">In Baxter v Baxter, </span></b><b><span style="color: #212121; font-size: 11pt;">162 A.D.3d 1743, 76 N.Y.S.3d 449 </span></b><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext;"><span style="mso-spacerun: yes;"> </span>(4 Dept., 2018) the Appellate Divison affirmed
that part of a temporary order that imputed income to plaintiff for the
purposes of calculating child support and directed defendant to pay pendente
lite child support. It held that the best remedy for “any claimed inequity
in awards of temporary alimony, child support or maintenance is a speedy trial
where the respective finances of the parties can be ascertained and a
permanent award based on the evidence may be made. </span></b><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;">Absent compelling
circumstances, parties to a matrimonial action should not seek review of an
order for temporary support<i>…</i>. Plaintiff has failed to allege the
existence of compelling circumstances warranting review of the award of pendente
lite child support.(citations omitted)<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><o:p></o:p></b></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010347"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A
person is aggrieved when he or she asks for relief but that relief is denied in
whole or in part, or, when someone asks for relief against him or her, which
the person opposes, and the relief is granted in whole or in part.</span></a><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Brady J.S., v. Darla A.B., --- N.Y.S.3d
----, 2022 WL 3094973, 2022 N.Y. Slip Op. 04858 (4<sup>th</sup> Dept.,2022) the
Appellate Division affirmed an order which modified a prior custody order to
award the father joint custody with the mother and grandparents and shared
physical residence with the grandparents, with zones of influence for the
father and grandparents he father. The Appellate Division rejected the position
taken by the father that neither the mother nor the AFC had standing to appeal.
The mother was aggrieved by the order on appeal inasmuch as she had joint
custody of the child with the grandparents and, through counsel, she opposed
the father’s amended petition, which was granted, in part, by the order on
appeal. A person is aggrieved within the meaning of CPLR 5511 when he or she
asks for relief but that relief is denied in whole or in part, or, when someone
asks for relief against him or her, which the person opposes, and the relief is
granted in whole or in part. The mother, as a joint custodian of the child, had
a direct interest in the matter at issue that was affected by the result, and
the adjudication had binding force against her rights, person or property.
Based on its determination regarding the mother’s standing, it concluded that
the AFC also had standing to appeal the order (see Matter of Newton v.
McFarlane, 174 A.D.3d 67, 71-74, 103 N.Y.S.3d 445 [2d Dept. 2019]]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that the failure to conduct a
Lincoln hearing does not require remittal under the circumstances of this case
A Lincoln hearing, though often preferable, is not mandatory, and the
determination is addressed to courts discretion. In determining whether such a
hearing is warranted, the court must determine whether the in camera testimony
of the child will on the whole benefit the child by obtaining for the Judge
significant pieces of information he or she needs to make the soundest possible
decision. Here, the court was able to discern the child’s wishes as a result of
the position expressed by the AFC. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010348"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">An
agreement is voidable on the ground of duress when threats of an unlawful act
deprived the party of the exercise of free will.</span></a><span style="mso-bookmark: _Toc111010348;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Campbell v Campbell, --- N.Y.S.3d ----, 2022 WL
3094725, 2022 N.Y. Slip Op. 04875 (4<sup>th</sup> Dept.,2022) the parties were
married in June 1989 and entered into a postnuptial agreement on August 31,
2017. In July 2019, plaintiff commenced this action for divorce. Plaintiff
asserted affirmative defenses alleging that the 2017 agreement should be found
null and void or set aside on the grounds that, inter alia, he signed the 2017
agreement under duress and that the 2017 agreement was unconscionable.
Defendant moved for summary judgment seeking, inter alia, an order dismissing
plaintiff's affirmative defenses. Following a hearing, Supreme Court concluded
that the 2017 agreement was unconscionable and manifestly unfair. The Appellate
Division reversed. It found, among other things, that the Supreme Court erred
insofar as it held that plaintiff signed the 2017 agreement under duress as a
result of defendant’s emotional abuse. An agreement is voidable on the ground
of duress when it is established that the party making the claim was forced to
agree to it by means of a wrongful threat precluding the exercise of his [or
her] free will. Generally, the aggrieved party must demonstrate that threats of
an unlawful act compelled his or her performance of an act which he or she had
the legal right to abstain from performing. The threat must be such as to
deprive the party of the exercise of free will. Even accepting as true
plaintiff’s allegations that defendant persistently urged him to sign the 2017
agreement and threatened to tell the parties’ children of plaintiff’s wrongful
actions in the past, such conduct did not amount to any unlawful acts on the
part of defendant sufficient to constitute duress .<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Laws of 2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><br />
<a name="_Toc111010349">Laws of 2022, Ch 365, </a></span><span style="mso-bookmark: _Toc111010349;"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">§ 2, amended Family
Court Act § 121 effective June 30, 2022 to read as follows:</span></span><span style="mso-bookmark: _Toc111010349;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";">§
121. Number of judges</span></b><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";">The
family court within the city of New York shall consist
of sixty judges, effective January first, two
thousand twenty-three. There shall be at least one family court
judge resident in each county of the city of New York. (NY Legis 365 (2022),
2022 Sess. Law News of N.Y. Ch. 365) </span></b><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010350"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Laws of 2022, Ch 365, </span></a><span style="mso-bookmark: _Toc111010350;"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">§ 3, amended Family
Court Act § 131(d) and (g) effective June 30, 2022 to read as follows:</span></span><span style="mso-bookmark: _Toc111010350;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";">(d)
In the county of Nassau there shall be nine family court judges
and the number of such judges now existing in said county is hereby increased
accordingly.</span></b><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";">(g)
There shall be a separate office of judge of the family court for the counties
of Oswego and Sullivan and the compensation payable for each such separate
office of judge of the family court shall be twenty-five thousand dollars per
annum. In the county of Saratoga there shall be two additional
family court judges and the number of such judges now existing
in such county is hereby increased accordingly. The compensation of such
additional family court judge shall be the same as the compensation of the existing
family court judge in such county. (NY Legis 365 (2022), 2022 Sess. Law News of
N.Y. Ch. 365) </span></b><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010351"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Laws of 2022, Ch 479, § 7 amended Domestic Relations Law,
115, subdivision 5 effective July 26, 2022 to delete the words “mentally
retarded” and replace them with the words “developmentally disabled.” It now
reads:</span></a><span style="mso-bookmark: _Toc111010351;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";">5.
Where the petition alleges that either or both of the birth parents of the
child have been deprived of civil rights or are mentally ill
or developmentally disabled, proof shall be submitted that such
disability exists at the time of the proposed adoption.(NY Legis 479 (2022),
2022 Sess. Law News of N.Y. Ch. 479) </span></b><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010352"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Laws of 2022, Ch 479, § 17 amended Family Court Act §
115(b) effective July 26, 2022 to delete the words “mentally defective or
retarded” and replace them with the words “developmentally disabled’. It now
reads:</span></a><span style="mso-bookmark: _Toc111010352;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";">(b)
The family court has such other jurisdiction as is set forth in this act,
including jurisdiction over habeas corpus proceedings and over applications for
support, maintenance, a distribution of marital property and custody in
matrimonial actions when referred to the family court by the supreme court,
conciliation proceedings, and proceedings concerning physically handicapped
and developmentally disabled children. (NY Legis 479 (2022),
2022 Sess. Law News of N.Y. Ch. 479)</span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010353"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Laws of 2022, Ch 479, § 6 amended the third undesignated
paragraph Domestic Relations Law, 13–d, subdivision 1 effective July 26, 2022
to delete the words “mental retardation” and replace them with the words
“developmental disability. It now reads:</span></a><span style="mso-bookmark: _Toc111010353;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";">Rubella
infection poses a grave threat to the unborn child, especially during the first
four months of pregnancy. It can lead to miscarriage, stillbirth, or one or all
of the tragic defects such as deafness, blindness, crippling congenital heart
disease, developmental disability and muscular and bone
defects. (NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479) </span></b><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010354"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">CPLR 4549 Added</span></a><span style="mso-bookmark: _Toc111010354;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: blue; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><b><span style="color: blue; font-size: 11pt;"><span style="mso-tab-count: 1;"> </span></span></b><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">The civil practice law and rules was amended by adding
CPLR 4549, a new exception to the rule against hearsay. This was intended to
relax the common law exclusion of the hearsay statement of a party's agent or
employee, provided that the statement was on a matter within the scope of that
employment or agency relationship, and made during the existence of the
relationship. The amendment is intended to change the extent of authority that
a proponent must show in order to make the hearsay statement of an opposing
party's agent or employee admissible. While under current law it appears clear
that a hearsay statement will be admissible if there was actual authority to
speak on behalf of the party, such authority often may be shown only by
implication in light of the circumstances of the employment or agency
relationship. In practice, this tends to limit "speaking authority"
to only the high levels of management.</span></b><b><span style="font-size: 11pt;"> See 2021 NY Legis Memo 833.</span></b><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="mso-tab-count: 1;"> </span>CPLR §
4549 provides that an “statement offered against an opposing party shall not be
excluded from evidence as hearsay if made by a person whom the opposing party
authorized to make a statement on the subject or by the opposing party's agent
or employee on a matter within the scope of that relationship and during
the<span style="mso-spacerun: yes;"> </span>existence of that relationship.<span style="mso-spacerun: yes;"> </span></span></b><b><span style="font-size: 11pt;">Laws
of 2021, Ch 833, effective December 31, 2021<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010355"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Laws of 2022, Ch 219, § 5
amended CPLR 3102 (e) effective June 13, 2022<span style="mso-spacerun: yes;">
</span>to read as follows:</span></a><span style="mso-bookmark: _Toc111010355;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">(e) Action pending in
another jurisdiction. Except as provided in section three thousand one hundred
nineteen of this article, when under any mandate, writ or commission issued out
of any court of record in any other state, territory, district or foreign
jurisdiction, or whenever upon notice or agreement, it is required to take the
testimony of a witness in the state, he or she may be compelled to appear and
testify in the same manner and by the same process as may be employed for the
purpose of taking testimony in actions pending in the state. The supreme court
or a county court shall make any appropriate order in aid of taking such a
deposition; provided that no order may be issued under this section in
connection with an out-of-state proceeding relating to any abortion services or
procedures which were legally performed in this state, unless such out-of-state
proceeding (1) sounds in tort or contract, or is based on statute, (2) is
actionable, in an equivalent or similar manner, under the laws of this state,
and (3) was brought by the patient who received reproductive healthcare, or the
patient's legal representative.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010356"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Laws of 2022, Ch 219, § 4
amended CPLR 3119 by adding a new subdivision<span style="mso-spacerun: yes;">
</span>(g) effective June 13, 2022<span style="mso-spacerun: yes;"> </span>to
read as follows:</span></a><span style="mso-bookmark: _Toc111010356;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">(g) Out-of-state abortion
proceedings. Notwithstanding any other provisions of this section or any other
law, no court or county clerk shall issue a subpoena under this section in
connection with an out-of-state proceeding relating to any abortion services or
procedures which were legally performed in this state, unless such out-of-state
proceeding (1) sounds in tort or contract, or is based on statute, (2) is actionable,
in an equivalent or similar manner, under the laws of this state, and (3) was
brought by the patient who received reproductive healthcare, or the patient's
legal representative.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><span style="font-family: arial;">July 27, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010357"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Appellate Division, Second
Department<br />
</span></a><span style="mso-bookmark: _Toc111010357;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><br />
<br />
A court acting pursuant to the UCCJEA which communicates with a court of
another state on substantive matters, if the parties are not able to
participate in the communication, they must be given the opportunity to present
facts and legal arguments before a decision on jurisdiction is made.</span></span><span style="mso-bookmark: _Toc111010357;"></span><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Touchet v Horstman, --- N.Y.S.3d ----, 2022
WL 2823157, 2022 N.Y. Slip Op. 04633 (2d Dept.,2022) the Appellate Division
pointed out that when a court acting pursuant to the UCCJEA communicates with a
court of another state on substantive matters, it must make a record of the
communication, promptly inform the parties of the communication, and grant the
parties access to the record (see Domestic Relations Law § 75–i[4]). The court
may, in its discretion, allow the parties to participate in the communication,
but “[i]f the parties are not able to participate in the communication, they
must be given the opportunity to present facts and legal arguments before a
decision on jurisdiction is made” (Domestic Relations Law § 75–i[2]).
Here,<span style="mso-spacerun: yes;"> </span>the Family Court correctly
determined that, in light of the pending proceedings in California, it was
required to communicate with the California court (see Domestic Relations Law
§§ 76–e, 77–f). However, after providing that information to the parties, who
had not participated in the communication, the court immediately announced its
decision on the issue of jurisdiction, without affording the parties an
opportunity to present facts and legal arguments. This did not comport with the
requirements of Domestic Relations Law § 75–i(2), and, under the circumstances
of this case, required reversal.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="margin-left: 0.5in;"><b><span style="background: white; color: #333333; font-size: 11pt; letter-spacing: 0.6pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><span style="font-family: arial;">July 20, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010358"><strong><span style="background: white; font-size: 11pt; text-decoration: none;">New and Revised
Uniform Rules Applicable in Matrimonial Actions as of July 1, 2022</span></strong></a><strong><span style="background: white; font-size: 11pt; text-decoration: none;"><o:p></o:p></span></strong></span></h1>
<p class="MsoNormal"><strong><span style="background: white; color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoBodyText" style="text-indent: 27.95pt;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">Administrative Order AO/141/22 adopted
revisions to 22 NYCRR 202.16 and 202.16-b (Matrimonial Rules) effective July 1,
2022<span style="letter-spacing: 0.05pt;">.<span style="mso-spacerun: yes;">
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<w:wrap anchorx="page" anchory="page"><span style="font-family: arial;"><b>
</b></span></w:wrap></v:line><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>The Administrative Order makes most of 22
NYCRR Part 202, which includes the recently enacted Commercial Division Rules,
applicable to matrimonial actions and proceedings, except as otherwise provided
22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b,<span style="mso-spacerun: yes;"> </span>and 202.18,<span style="mso-spacerun: yes;">
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<w:wrap anchorx="page" anchory="page"><span style="font-family: arial;"><b>
</b></span></w:wrap></v:line><span style="font-family: arial;"><a href="https://www.nysdivorce.com/uploads/8/1/3/4/81349156/rules_amended_and_added_to_uniform_matrimonial_rules_rv.pdf"><b><span style="font-size: 11pt; text-decoration: none;">Click here to download copies of the 31 new and revised
rules</span></b></a><b><span style="color: red; font-size: 11pt;"> Copies of the revised Preliminary Conference form may be downloaded
from our website </span></b><b><span style="font-size: 11pt;">at
</span></b><a href="http://www.nysdivorce.com/"><b><span style="font-size: 11pt; text-decoration: none;">www.nysdivorce.com</span></b></a><span class="MsoHyperlink"><b><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></b></span></span></p>
<p class="smallfont" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt; text-indent: 27.95pt;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">The Uniform Rules which are incorporated into
the matrimonial rules include the following<span style="mso-spacerun: yes;">
</span>rules which were added<span style="mso-spacerun: yes;"> </span>to 22
NYCRR Part 202 effective February 1, 2021: <span style="color: black; mso-themecolor: text1;">22 NYCRR 202.8-a; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-b; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-c;</span>
22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-d;</span> 22
NYCRR <span style="color: black; mso-themecolor: text1;">202.8-e; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-f and </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-g; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.10; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.11; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-a; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-b; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-c; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-d; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-e; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-f; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-g; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-h; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-I; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-j; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.23; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.29; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.34; and </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.37.<o:p></o:p></span></span></span></b></p>
<p class="smallfont" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><span class="field"><b><span style="color: #262626; font-size: 11pt;"><span style="mso-tab-count: 1;"> </span>In
addition, the Uniform Rules which are incorporated into the matrimonial
rules<span style="mso-spacerun: yes;"> </span>include the following rules which
were amended: </span></b></span><b><span style="color: black; font-size: 11pt;">22 NYCRR 202.1, Added (f)
& (g) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; 22 NYCRR 202.5,
Amended (a)(1) & added (a)(2) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; 22 NYCRR
202.5-a, Amended (a) & (b) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; 22 NYCRR 202.6,
Amended (b) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-009-22.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Jan.
7, 2022</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2022; 22 NYCRR 202.26
, Amended on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; and 22 NYCRR
202.28, Amended (a) & (b) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021</span></b><b><span style="color: red; font-size: 11pt;">.<span style="mso-spacerun: yes;"> </span>Go to our website at </span></b><a href="http://www.nysdivorce.com/"><b><span style="color: red; font-size: 11pt; text-decoration: none;">www.nysdivorce.com</span></b></a><span class="MsoHyperlink"><b><span style="color: red; font-size: 11pt; text-decoration: none;"> for copies of all of the
revised rules.</span></b></span><b><span style="color: black; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<br />
<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010359"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court Act does not
provide for dismissal of a proceeding on the ground of improper or inconvenient
venue</span></a><span style="mso-bookmark: _Toc111010359;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Vandunk v. Bonilla, --- N.Y.S.3d ----, 2022 WL 2709352 (Mem), 2022
N.Y. Slip Op. 04554 (2d Dept.,2022) the Appellate Division held that the Family
court erred in dismissing the family offense petition on the ground that the
proceeding was commenced in the wrong county. A family offense proceeding may
be originated in the county in which the act or acts referred to in the
petition allegedly occurred or in which the family or household resides or in
which any party resides ” (FCA § 818). Since the mother resided in Rockland
County, the mother commenced this proceeding in a proper venue. The Appellate
Division noted that even if the mother had commenced this proceeding in an
improper venue, that would not have been a basis for dismissing the petition.
The Family Court Act does not provide for dismissal of a proceeding on the
ground of improper or inconvenient venue. The proper remedy when the venue of a
proceeding is placed in an improper or inconvenient county is to transfer the
proceeding to the proper or more convenient county pursuant to Family Court Act
§ 174. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc111010360"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The<span style="mso-spacerun: yes;"> </span>right to due process encompasses a meaningful
opportunity to be heard at a fact-finding hearing on a neglect petition and to
present evidence relevant to the proceedings</span></a><span style="mso-bookmark: _Toc111010360;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Serena G,<span style="mso-spacerun: yes;">
</span>--- N.Y.S.3d ----, 2022 WL 2709345, 2022 N.Y. Slip Op. 04547 (2d
Dept.,2022) the Appellate Division held that the Family Court improperly made
findings of fact without a hearing on the derivative neglect petition. On the
second day of the fact-finding hearing on the neglect petition as to Serena,
the court described the proceeding as a “continuing trial,” and made no
reference on the record to the newly-filed derivative neglect petition as to
Vincent (see Family Ct Act § 1041[a]). On the third day of the fact-finding
hearing, the court again made no reference to Vincent. The only reference in
the available record to the Family Court directing a joint hearing or
consolidation of the two petitions occurred at the commencement of the
dispositional hearing, at which time the court confirmed that it had
consolidated the petitions for purposes of its decision dated October 9, 2020.
It held that the<span style="mso-spacerun: yes;"> </span>right to due process
encompasses a meaningful opportunity to be heard at a fact-finding hearing on a
neglect petition and to present evidence relevant to the proceedings. The
proceeding with respect to Vincent had to be remitted to the Family Court, for
a fact-finding hearing, in order to afford the parties an opportunity to introduce
evidence relevant to the petition to adjudicate Vincent a derivatively
neglected child.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><span style="font-family: arial;">July 13, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: red; font-size: 11pt;"><span style="font-family: arial;">New and Revised Uniform Rules Applicable in
Matrimonial Actions as of July 1, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoBodyText" style="text-indent: 27.95pt;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">Administrative Order AO/141/22 adopted
revisions to 22 NYCRR 202.16 and 202.16-b (Matrimonial Rules) effective July 1,
2022<span style="letter-spacing: 0.05pt;">.<span style="mso-spacerun: yes;">
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</b></span></w:wrap></v:line><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>The Administrative Order makes most of 22
NYCRR Part 202, which includes the recently enacted Commercial Division Rules,
applicable to matrimonial actions and proceedings, except as otherwise provided
22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b,<span style="mso-spacerun: yes;"> </span>and 202.18,<span style="mso-spacerun: yes;">
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<w:wrap anchorx="page" anchory="page"><span style="font-family: arial;"><b>
</b></span></w:wrap></v:line><span style="font-family: arial;"><a href="https://www.nysdivorce.com/uploads/8/1/3/4/81349156/rules_amended_and_added_to_uniform_matrimonial_rules_rv.pdf"><b><span style="font-size: 11pt; text-decoration: none;">Click here to download copies of the 31 new and revised
rules</span></b></a><b><span style="color: red; font-size: 11pt;"> Copies of the revised Preliminary Conference form may be downloaded
from our website </span></b><b><span style="font-size: 11pt;">at
</span></b><a href="http://www.nysdivorce.com/"><b><span style="font-size: 11pt; text-decoration: none;">www.nysdivorce.com</span></b></a><span class="MsoHyperlink"><b><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></b></span></span></p>
<p class="smallfont" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt; text-indent: 27.95pt;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">The Uniform Rules which are incorporated into
the matrimonial rules include the following<span style="mso-spacerun: yes;">
</span>rules which were added<span style="mso-spacerun: yes;"> </span>to 22
NYCRR Part 202 effective February 1, 2021: <span style="color: black; mso-themecolor: text1;">22 NYCRR 202.8-a; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-b; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-c;</span>
22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-d;</span> 22
NYCRR <span style="color: black; mso-themecolor: text1;">202.8-e; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-f and </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.8-g; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.10; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.11; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-a; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-b; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-c; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-d; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-e; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-f; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-g; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-h; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-I; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.20-j; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.23; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.29; </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.34; and </span>22 NYCRR <span style="color: black; mso-themecolor: text1;">202.37.<o:p></o:p></span></span></span></b></p>
<p class="smallfont" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><span class="field"><b><span style="color: #262626; font-size: 11pt;"><span style="mso-tab-count: 1;"> </span>In
addition, the Uniform Rules which are incorporated into the matrimonial
rules<span style="mso-spacerun: yes;"> </span>include the following rules which
were amended: </span></b></span><b><span style="color: black; font-size: 11pt;">22 NYCRR 202.1, Added (f)
& (g) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; 22 NYCRR 202.5,
Amended (a)(1) & added (a)(2) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; 22 NYCRR
202.5-a, Amended (a) & (b) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; 22 NYCRR 202.6,
Amended (b) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-009-22.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Jan.
7, 2022</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2022; 22 NYCRR 202.26
, Amended on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; and 22 NYCRR
202.28, Amended (a) & (b) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021</span></b><b><span style="color: red; font-size: 11pt;">.<span style="mso-spacerun: yes;"> </span>Go to our website at </span></b><a href="http://www.nysdivorce.com/"><b><span style="color: red; font-size: 11pt; text-decoration: none;">www.nysdivorce.com</span></b></a><span class="MsoHyperlink"><b><span style="color: red; font-size: 11pt; text-decoration: none;"> for copies of all of the
revised rules.</span></b></span><b><span style="color: black; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoBodyText" style="text-indent: 27.95pt;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><br style="mso-special-character: line-break;" />
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<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596711"><strong><span style="background: white; font-size: 11pt; text-decoration: none;">ew and Revised
Uniform Rules Applicable in Matrimonial Actions as of July 1, 2022</span></strong></a><strong><span style="background: white; font-size: 11pt; text-decoration: none;"><o:p></o:p></span></strong></span></h1>
<p class="MsoNormal"><strong><span style="background: white; color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoBodyText" style="text-indent: 27.95pt;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">Administrative Order AO/141/22 adopted
revisions to 22 NYCRR 202.16 and 202.16-b (Matrimonial Rules) effective July 1,
2022<span style="letter-spacing: 0.05pt;">.<span style="mso-spacerun: yes;">
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</b></span></w:wrap></v:line><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>The Administrative Order makes most of 22
NYCRR Part 202, which includes the recently enacted Commercial Division Rules,
applicable to matrimonial actions and proceedings, except as otherwise provided
22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b,<span style="mso-spacerun: yes;"> </span>and 202.18,<span style="mso-spacerun: yes;">
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<w:wrap anchorx="page" anchory="page"><span style="font-family: arial;"><b>
</b></span></w:wrap></v:line><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Copies of the </span></b><a href="https://www.nysdivorce.com/uploads/8/1/3/4/81349156/rules_amended_and_added_to_uniform_matrimonial_rules_rv.pdf"><b><span style="font-size: 11pt; text-decoration: none;">31 new and revised rules</span></b></a><b><span style="color: red; font-size: 11pt;"> (with
Appendix A and Appendix B) and revised </span></b><a href="https://www.nysdivorce.com/uploads/8/1/3/4/81349156/rev._matrimonial__pc_order.pdf"><b><span style="font-size: 11pt; text-decoration: none;">Preliminary Conference form</span></b></a><b><span style="color: red; font-size: 11pt;"> may be
downloaded by clicking the links above or from our website </span></b><b><span style="font-size: 11pt;">at </span></b><a href="http://www.nysdivorce.com/"><b><span style="font-size: 11pt; text-decoration: none;">www.nysdivorce.com</span></b></a><span class="MsoHyperlink"><b><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></b></span></span></p>
<p class="MsoBodyText" style="text-indent: 27.95pt;"><span class="MsoHyperlink"><b><span style="font-size: 11pt; text-decoration: none;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="standardfontb" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><a name="_Toc107395264"><b><span style="color: black; font-size: 11pt;"><span style="mso-spacerun: yes;"> </span>The Uniform Rules which have been
incorporated into the matrimonial rules encourage appearances for the argument
of motions and for conferences by electronic means. </span></b></a><b><span style="color: black; font-size: 11pt;">22 NYCRR <a name="_Toc107395262"><span style="mso-spacerun: yes;"> </span>202.8-f provides
that o</a></span></b><span style="mso-bookmark: _Toc107395262;"><b><span style="color: #262626; font-size: 11pt;">ral
arguments may be conducted by the court by electronic means and </span></b></span><span style="mso-bookmark: _Toc107395262;"><b><span style="color: black; font-size: 11pt;">requires each </span></b></span><b><span style="color: black; font-size: 11pt;">court or </span></b><b><span style="color: #262626; font-size: 11pt;">court
part to adopt a procedure governing requests for oral argument of motions.<span style="mso-spacerun: yes;"> </span>In the absence such a procedure by a
particular court or part, any party may request oral argument of a motion by
letter accompanying the motion papers. Notice of the date selected by the
court must<span style="mso-spacerun: yes;"> </span>be given, if practicable, at
least 14 days before the scheduled oral argument. </span></b><b><span style="color: black; font-size: 11pt;">22 NYCRR
202.10 (a) provides that a</span></b><b><span style="color: #262626; font-size: 11pt;">ny party may request to appear at
a conference by electronic means. Where feasible and appropriate, the court is
encouraged to grant such requests.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: 0.5in;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-color-alt: windowtext;">Administrative Order AO/141/22 also<span style="mso-spacerun: yes;"> </span>adopted a revised Preliminary Conference Stipulation/Order-Contested<span style="letter-spacing: 0.05pt;"> </span>Matrimonial Form (“PC Order”) for use in
matrimonial matters effective July 1, 2022 which may be downloaded from </span></b><b><span style="color: #262626; font-size: 10.5pt;">the Divorce Resources website
under </span></b><span style="color: black; mso-color-alt: windowtext;"><a href="http://ww2.nycourts.gov/divorce/forms.shtml#Statewide" target="_blank"><b><span style="color: #000099; font-size: 10.5pt; text-decoration: none; text-underline: none;">Statewide
Official Forms</span></b></a></span><b><span style="color: #262626; font-size: 10.5pt;"> at effective July 1, 2022. <o:p></o:p></span></b></span></p>
<p class="smallfont" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><b><span style="font-size: 11pt;"><span style="mso-tab-count: 1;"> </span>The new rules which are incorporated
into the matrimonial rules include the following<span style="mso-spacerun: yes;"> </span>rules which were added<span style="mso-spacerun: yes;"> </span>to 22 NYCRR Part 202 effective February 1,
2021: <span style="color: black; mso-themecolor: text1;">Section 202.8-a; 202.8-b;
202.8-c;202.8-d;202.8-e; 202.8-f and 202.8-g; 202.10; 202.11; 202.20; 202.20-a;
202.20-b; 202.20-c; 202.20-d; 202.20-e; 202.20-f; 202.20-g; 202.20-h; 202.20-I;
202.20-j; 202.23; 202.29; 202.34; 202.37 Added on </span></span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021<o:p></o:p></span></b></span></p>
<p class="smallfont" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><span class="field"><b><span style="color: #262626; font-size: 11pt;"><span style="mso-tab-count: 1;"> </span>In
addition, they include the following rules which were amended as follows: </span></b></span><b><span style="color: black; font-size: 11pt;">Section 202.1 Added (f) & (g) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; Section 202.5
Amended (a)(1) & added (a)(2) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021;Section 202.5-a
Amended (a) & (b) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021;Section 202.6
Amended (b) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-009-22.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Jan.
7, 2022</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2022;Section 202.26
Amended on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021; and Section
202.28 Amended (a) & (b) on </span></b><a href="https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-270-20.pdf" target="_blank"><b><span style="color: black; font-size: 11pt; text-decoration: none;">Dec.
29. 2020</span></b></a><b><span style="color: black; font-size: 11pt;">, effective February 1, 2021.<o:p></o:p></span></b></span></p>
<p class="smallfont" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>Revised 22 NYCRR 202.16 and 202.16-b follow:<o:p></o:p></span></span></b></p>
<p class="MsoBodyText" style="margin-bottom: 0in; margin-left: 0in; margin-right: 10.2pt; margin-top: 7.15pt; margin: 7.15pt 10.2pt 0in 0in; mso-outline-level: 1;"><span style="font-family: arial;"><a name="_Toc108596712"><b><span style="color: black; font-size: 11pt;">Section 202.16 Application of Part 202 and Section 202.16.
Matrimonial actions; calendar control of financial disclosure in actions and
proceedings involving alimony, maintenance, child support and equitable
distribution; motions for alimony, counsel fees pendente lite, and child
support; special rules</span></b></a><b><span style="color: black; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(a)<span style="mso-tab-count: 1;"> </span>Applicability of
Part 202 and Section 202.16.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1) Part 202 shall be applicable to civil actions and proceedings
in the Supreme Court, including, but not limited to, matrimonial actions and
proceedings, except as otherwise provided in this section 202.16 and in
sections 202.16-a, 202.16-b, and 202.18, which sections shall control in the
event of conflict.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(2) This section shall be applicable to all contested actions and
proceedings in the Supreme Court in which statements of net worth are required
by section 236 of the Domestic Relations Law to be filed and in which a
judicial determination may be made with respect to alimony, counsel fees,
pendente lite, maintenance, custody and visitation, child support, or the
equitable distribution of property, including those referred to Family Court by
the Supreme Court pursuant to section 464 of the Family Court Act.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(b)<span style="mso-tab-count: 1;"> </span>Form of Statements
of Net Worth.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">Sworn statements of net worth, except as provided in subdivision
(k) of this section, exchanged and filed with the court pursuant to section 236
of the Domestic Relations Law, shall be in substantial compliance with the Statement
of Net Worth form contained in<span style="mso-spacerun: yes;"> </span>appendix
A of this Part.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(c)<span style="mso-tab-count: 1;"> </span>Retainer
Agreements<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1)<span style="mso-tab-count: 1;"> </span>A signed copy of
the attorney's retainer agreement with the client shall accompany the statement
of net worth filed with the court, and the court shall examine the agreement to
assure that it conforms to Appellate Division attorney conduct and disciplinary
rules. Where substitution of counsel occurs after the filing with the court of
the net worth statement, a signed copy of the attorney's retainer agreement
shall be filed with the court within 10 days of its execution.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(2)<span style="mso-tab-count: 1;"> </span>An attorney
seeking to obtain an interest in any property of his or her client to secure
payment of the attorney's fee shall make application to the court for approval
of said interest on notice to the client and to his or her adversary. The
application may be granted only after the court reviews the finances of the
parties and an application for attorney's fees.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(d)<span style="mso-tab-count: 1;"> </span>Request for
Judicial Intervention.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">A request for judicial intervention shall be filed with the court
by the plaintiff no later than 45 days from the date of service of the summons
and complaint or summons with notice upon the defendant, unless both parties
file a notice of no necessity with the court, in which event the request for
judicial intervention may be filed no later than 120 days from the date of
service of the summons and complaint or summons with notice upon the defendant.
Notwithstanding section 202.6(a) of this Part, the court shall accept a request
for judicial intervention that is not accompanied by other papers to be filed
in court.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(e)<span style="mso-tab-count: 1;"> </span>Certification
of<span style="mso-spacerun: yes;"> </span>Paper and Obligations of Counsel
Appearing Before the Court<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1) Every paper served on another party or filed or submitted to
the court in a matrimonial action shall be signed as provided in section
130-1.1a of this Title.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(2) Counsel who appear before the court must be familiar with the
case with regard to which they appear and be fully prepared and authorized to
discuss and resolve the issues which are scheduled to be the subject of the
appearance. Failure to comply with this rule may be treated as a default for
purposes of Rule 202.27 and/or may be treated as a failure to appear for
purposes of Rule 130.21, provided that, in matrimonial actions and proceedings,
consistent with applicable case law on defaults in matrimonial actions, failure
to comply with this rule may, either in lieu of or in addition to any other
direction, be considered in the determination of any award of attorney fees or
expenses.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(f)<span style="mso-tab-count: 1;"> </span>Preliminary
Conference.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1)<span style="mso-tab-count: 1;"> </span>In all actions or
proceedings to which this section of the rules is applicable, a preliminary
conference shall be ordered by the court to be held within 45 days after the
action has been assigned. Such order shall set the time and date for the conference
and shall specify the papers that shall be exchanged between the parties. These
papers must be exchanged no later than 10 days prior to the preliminary
conference, unless the court directs otherwise. These papers shall include:<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(i)<span style="mso-tab-count: 1;"> </span>statements of net
worth, which also shall be filed with the court no later than 10 days prior to
the preliminary conference;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(ii)<span style="mso-tab-count: 1;"> </span>all paycheck
stubs for the current calendar year and the last paycheck stub for the
immediately preceding calendar year;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(iii)<span style="mso-tab-count: 1;"> </span>all filed State and
Federal income tax returns for the previous three years, including both
personal returns and returns filed on behalf of any partnership or closely held
corporation of which the party is a partner or shareholder;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(iv)<span style="mso-tab-count: 1;"> </span>all W-2 wage and
tax statements, 1099 forms, and K-1 forms for any year in the past three years
in which the party did not file State and Federal income tax returns;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(v)<span style="mso-tab-count: 1;"> </span>all statements of
accounts received during the past three years from each financial institution
in which the party has maintained any account in which cash or securities are
held;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">. (vi) the statements immediately preceding and following the date
of commencement of the matrimonial action pertaining to:<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(a)<span style="mso-tab-count: 1;"> </span>any policy of life
insurance having a cash or dividend surrender value; and<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(b)<span style="mso-tab-count: 1;"> </span>any deferred
compensation plan of any type or nature in which the party has an interest
including, but not limited to, Individual Retirement Accounts, pensions,
profit- sharing plans, Keogh plans, 401(k) plans and other retirement plans.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1-a) Where both parties are represented by counsel, counsel shall
consult with each other prior to the preliminary conference to discuss the
matters set forth in paragraph (2) below and in NYCRR §202.11 in a good faith
effort to· reach agreement on such matters. Notwithstanding NYCRR §202.11, no
prior consultation is required where either or both of the parties is self
represented. Counsel shall, prior to or at the conference, submit to the court
a writing with respect to any resolutions reached, which the court shall
"so order" if approved and in proper form.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1-b) Both parties personally must be present in court at the time
of the conference, and the judge personally shall address the parties at some
time during the conference.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(2)<span style="mso-tab-count: 1;"> </span>The matters to be
considered at the conference may include, among other things:<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(i)<span style="mso-tab-count: 1;"> </span>applications for
pendente lite relief, including interim counsel fees;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(ii)<span style="mso-tab-count: 1;"> </span>compliance with
the requirement of compulsory financial disclosure, including the exchange and
filing of a supplemental statement of net worth indicating material changes in
any previously exchanged and filed statement of net worth, and, including the
number and length of depositions, the number of interrogatories, and agreement
of the parties to comply with Guidelines on Electronically Stored Information.
Unless otherwise stipulated by the parties or ordered by the court,
interrogatories shall be no more than 25 in number including subparts; and
depositions shall be no more than 7 hours long. The Provisions of NYCRR
§202.20-b(a)(l) limiting the number of depositions taken by plaintiffs, or by
defendants, or by third-party defendants, shall not apply to matrimonial
actions.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(iii)<span style="mso-tab-count: 1;"> </span>simplification
and limitation of the issues;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(iv)<span style="mso-tab-count: 1;"> </span>the establishment
of a timetable for the completion of all disclosure proceedings, provided that
all such procedures must be completed and the note of issue filed within six
months from the commencement of the conference, unless otherwise shortened or
extended by the court depending upon the circumstances of the case;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(v)<span style="mso-tab-count: 1;"> </span>the completion of
a preliminary conference order substantially in the form contained in Appendix
"G" to these rules, with attachments; and<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(vi)<span style="mso-tab-count: 1;"> </span>any other matters
which the court shall deem appropriate.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(3)<span style="mso-tab-count: 1;"> </span>At the close of the
conference, the court shall direct the parties to stipulate, in writing or on
the record, as to all resolved issues, which the court then shall "so
order," and as to all issues with respect to fault, custody and finance
that remain unresolved. Any issues with respect to fault, custody and finance
that are not specifically described in writing or on the record at that time
may not be raised in the action unless good cause is shown. The court shall fix
a schedule for discovery as to all unresolved issues and, in a noncomplex case,
shall schedule a date for trial not later than six months from the date of the
conference. The court may appoint an attorney for<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">the infant children, or may direct the parties to file with the
court, within 30 days of the conference, a list of suitable attorneys for
children for selection by the court. The court also may direct that a list of
expert witnesses be filed with the court within 30 days of the conference from
which the court may select a neutral expert to assist the court. The court
shall schedule a compliance conference unless the court dispenses with the
conference based upon a stipulation of compliance filed by the parties.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(4) Unless the court excuses their presence, the parties
personally must be present in court at the time of the compliance conference.
If the parties are present in court, the judge personally shall address them at
some time during the conference. If the parties are present in court, the judge
personally shall address them at some point during the conference. Where both
parties are represented by counsel, counsel shall consult with each other prior
to the compliance conference in a good faith effort to resolve any outstanding
issues. Notwithstanding NYCRR §202.11, no prior consultation is required where
either or both of the parties is self-represented. Counsel shall, prior to or
at the compliance conference, submit to the court a writing with respect to any
resolutions reached, which the court shall "so order" if approved and
in proper form.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(5)<span style="mso-tab-count: 1;"> </span>In accordance with
Section 202.20-c (f), ,absent good cause, a party may not use at trial or
otherwise any document which was not produced in response to a request for such
document or category of document, which request was not objected to, or, if
objected to, such objection was overruled by the court, provided, however, the
court may exercise its discretion to impose such other, further, or additional
penalty for non-disclosure as may be authorized by law and which may be more
appropriate in a matrimonial action than preclusion or where there is a
continuing obligation to update (e.g., updated tax returns, W-2 statements,
etc.).<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(6)<span style="mso-tab-count: 1;"> </span>The Court shall
alert the parties to the requirements of 22 NYCRR § 202.20-c regarding requests
for documents;§ 202.20-e regarding adherence to discovery schedule, and§
202.20-f regarding discovery disputes, and shall address the issues of
potential for default, preclusion, denial of discovery, drawing inferences, or
deeming issues to be true, as well as sanctions and/or counsel fees in the
event default or preclusion or such other remedies are not appropriate in a
matrimonial action.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(g)<span style="mso-tab-count: 1;"> </span>Expert Witnesses
and Other Trial Matters.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1)<span style="mso-tab-count: 1;"> </span>Responses to
demands for expert information pursuant to CPLR section 3101(d) shall be served
within 20 days following service of such demands.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(2)<span style="mso-tab-count: 1;"> </span>Each expert
witness whom a party expects to call at the trial shall file with the court a
written report, which shall be exchanged and filed with the court no later than
60 days before the date set for trial, and reply reports, if any, shall be
exchanged and filed no later than 30 days before such date. Failure to file
with the court a report in conformance with these requirements may, in the
court's discretion, preclude the use of the expert. Except for good cause
shown, the reports exchanged between the parties shall be the only reports
admissible at trial. Late retention of experts and consequent late submission
of reports shall be permitted only upon a showing of good cause as authorized
by CPLR 3101(d)(l)(i). In the discretion of the court, written reports may be
used to substitute for direct testimony at the trial, but the reports shall be
submitted by the expert under oath, and the expert shall be present and
available for cross- examination. In the discretion of the court, in a proper
case, parties may be bound by the expert's report in their direct case.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(3)<span style="mso-tab-count: 1;"> </span>Pursuant to NYCRR
§202.26, in cases in which both parties are represented by counsel and each
party has called, or intends to call, an expert witness on issues of finances
(e.g., equitable · distribution. maintenance, child support), the court may
direct that, prior to, or during trial, counsel consult in good faith to
identify those aspects of their respective experts' testimony that are not in
dispute. The court may further direct that any agreements reached in this
regard shall be reduced to a written stipulation. Such consultation shall not
be required where one or both parties is self-represented or where the expert
testimony relates to matters of child custody or parental access, domestic
violence, domestic abuse, or child neglect or abuse.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(4)<span style="mso-tab-count: 1;"> </span>The provisions of
section 202.20-a regarding privilege logs shall not apply to matrimonial
actions and proceedings unless the court orders otherwise.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(5)<span style="mso-tab-count: 1;"> </span>Parties and
non-parties should adhere to the Electronically Store Information
("ESI") Guidelines set forth in an Appendix to the Uniform Civil
Rules<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(6)<span style="mso-tab-count: 1;"> </span>At the
commencement of the trial or at such time as the court may direct, each party
shall<span style="mso-spacerun: yes;"> </span>identify in writing for the court
the witnesses it intends to call, the order in which they shall testify and the
estimated length of their testimony, and shall provide a copy of such witness
list to opposing counsel. Counsel shall separately identify for the court only
a list of the witnesses who may becalled solely for rebuttal or with regard to
credibility. The court may permit for good cause shown and in the absence of
substantial prejudice, a party to call a witness to testify who was not
identified on the witness list submitted by that party. The estimates of the
length of testimony and the order of witnesses provided by counsel are advisory
only and the court may permit witnesses to be called in a different order and
may permit further testimony from a witness notwithstanding that the time
estimate for such witness has been exceeded.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(h)<span style="mso-tab-count: 1;"> </span>Statement of
Proposed Disposition.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1)<span style="mso-tab-count: 1;"> </span>Each party shall
exchange a statement setting forth the following:<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(i)<span style="mso-tab-count: 1;"> </span>the assets
claimed to be marital property;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(ii)<span style="mso-tab-count: 1;"> </span>the assets
claimed to be separate property;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(iii)<span style="mso-tab-count: 1;"> </span>an allocation of
debts or liabilities to specific marital or separate assets, where appropriate;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(iv)<span style="mso-tab-count: 1;"> </span>the amount
requested for maintenance, indicating and .elaborating upon the statutory
factors forming the basis for the maintenance request;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(v)<span style="mso-tab-count: 1;"> </span>the proposal for
equitable distribution, where appropriate, indicating and elaborating upon the
statutory factors forming the basis for the proposed distribution;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(vi)<span style="mso-tab-count: 1;"> </span>the proposal for a
distributive award, if requested, including a showing of the need for a
distributive award;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(vii)<span style="mso-tab-count: 1;"> </span>the proposed plan
for child support, indicating and elaborating upon the statutory factors upon
which the proposal is based; and<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(viii)<span style="mso-tab-count: 1;"> </span>the proposed plan
for custody and visitation of any children involved in the proceeding, setting
forth the reasons therefor.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(2)<span style="mso-tab-count: 1;"> </span>A copy of any
written agreement entered into by the parties relating to financial
arrangements or custody or visitation shall be annexed-to the statement
referred to in paragraph (1) of this subdivision.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(3)<span style="mso-tab-count: 1;"> </span>The statement
referred to in paragraph (1) of this subdivision, with proof of service upon
the other party, shall, with the note of issue, be filed with the court. The
other party, if he or she has not already done so, shall file with the court a
statement complying with paragraph (1) of this subdivision within 20 days of
such service.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(i)<span style="mso-tab-count: 1;"> </span>Filing of Note of
Issue.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">No action or proceeding to which this section is applicable shall
be deemed ready for trial unless there is compliance with this section by the
party filing the note of issue and certificate of readiness.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">j) Referral to Family Court.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">In all actions or proceedings to which this section is applicable
referred to the Family Court by the Supreme Court pursuant to section 464 of
the Family Court Act, all statements, including supplemental statements,
exchanged and filed by the parties pursuant to this section shall be
transmitted _to the Family Court with the order of referral.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(k) Motions for Alimony, Maintenance, Counsel Fees Pendente Lite
and Child support (other than under section 237(c) or 238 of the Domestic
Relations Law).<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">Unless, on application made to the court, the requirements of this
subdivision be waived for good cause shown, or unless otherwise expressly
provided by any provision of the CPLR or other statute, the following
requirements shall govern motions for alimony, maintenance, counsel fees (other
than a motion made pursuant to section 237(c) or 238 of the Domestic Relations
Law for counsel fees for services rendered by an attorney to secure the
enforcement of a previously granted order or decree) or child support or any
modification of an award thereof:<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1)<span style="mso-tab-count: 1;"> </span>Such motion shall
be made before or at the preliminary conference, if practicable.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(2)<span style="mso-tab-count: 1;"> </span>No motion shall be
heard unless the moving papers include a statement of net worth in the official
form prescribed by subdivision (b) of this section.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(3)<span style="mso-tab-count: 1;"> </span>No motion for
counsel fees and expenses shall be heard unless the moving papers also include
the affidavit of the movant's attorney stating the moneys, if any, received on
account of such attorney's fee from the movant or any other person on behalf of
the movant, the hourly amount charged by the attorney, the amounts paid, or to
be paid, to counsel and any experts, and any additional costs, disbursements or
expenses, and the moneys such attorney has been promised by, or the agreement
made with, the movant or other persons on behalf of the movant, concerning or
in payment of the fee. Fees and expenses of experts shall include appraisal,
accounting, actuarial, investigative and other fees and expenses (including
costs for processing of NYSCEF documents because of the inability of a
self-represented party that desires to e-file to have computer access or afford
internet accessibility) to enable a spouse to carry on or defend a matrimonial
action or proceeding in the Supreme Court.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(4)<span style="mso-tab-count: 1;"> </span>The party opposing
any motion shall be deemed to have admitted, for the purpose of the motion but
not otherwise, such facts set forth in the moving party's statement of net
worth as are not controverted in:<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(i)<span style="mso-tab-count: 1;"> </span>a statement of
net worth, in the official form prescribed by this section, completed and sworn
to by the opposing party, and made a part of the answering papers; or<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(ii)<span style="mso-tab-count: 1;"> </span>other sworn
statements or affidavits with respect to any fact which is not feasible to
controvert in the opposing party's statement of net worth.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(5)<span style="mso-tab-count: 1;"> </span>The failure to
comply with the provisions of this subdivision shall be good cause, in the
discretion of the judge presiding, either:<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(i)<span style="mso-tab-count: 1;"> </span>to draw an
inference favorable to the adverse party with respect to any disputed fact or
issue affected by such failure; or<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(ii)<span style="mso-tab-count: 1;"> </span>to deny the
motion without prejudice to renewal upon compliance with the provisions of this
section.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(6)<span style="mso-tab-count: 1;"> </span>The notice of motion
submitted with any motion for or related to interim maintenance or child
support shall contain a notation indicating the nature of the motion. Any such
motion shall be determined within 30 days after the motion is submitted for
decision.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(7)<span style="mso-tab-count: 1;"> </span>Upon any application
for an award of counsel fees or fees and expenses of experts made prior to the
conclusion of the trial of the action, the court shall set forth in specific
detail, in writing or on the record, the factors it considered and the reasons
for its decision.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(l)<span style="mso-tab-count: 1;"> </span>Hearings or
trials pertaining to temporary or permanent custody or visitation shall proceed
from day to day conclusion. With respect to other issues before the court, to
the extent feasible, trial should proceed from day to day to conclusion.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(m)<span style="mso-tab-count: 1;"> </span>The court may, for
good cause, relieve the parties and counsel from the requirements of 22 NYCRR
§202.34 regarding pre-marking of exhibits and 22 NYCRR §202.20-h. regarding
pre trial memoranda and Exhibit Books.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(n)<span style="mso-tab-count: 1;"> </span>Upon request of a
party, the court may permit direct testimony of that party's own witness in a
non-jury trial or evidentiary hearing shall be submitted in affidavit form,
provided, however, that the opposing party shall have the right to object to
statements in the direct testimony affidavit, and the court shall rule on such
objections, just as if the statements had been made orally in open court. Where
an objection to a portion of a direct testimony affidavit is sustained, the
court may direct that such portion be stricken. The submission of direct
testimony in affidavit form shall not affect any right to conduct
cross-examination or re-direct examination of the witness. Notwithstanding the
foregoing, in an action for custody, visitation, contempt, order of protection
or exclusive occupancy, however. except as provided in NYCRR §202.18, a party
or a party's own witness may not testify on direct examination by affidavit.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">\(O)<span style="mso-spacerun: yes;"> </span>Omission or Redaction
of Confidential Personal Information from Matrimonial Decisions.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1) Except as otherwise provided by rule or law or court order,
and whether or not a sealing order is or has been sought, prior to submitting
any decision, order, judgment, or combined decision and order or judgment in a
matrimonial action for publication, the court shall redact the following
confidential personal information:<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">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;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">ii. the actual home address of the parties to the matrimonial
action and their children;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">iii. the full name of an individual known to be a minor under the
age of eighteen (18) years of age, except the minor's initials or the first
name of the minor with the first initial of the minor’s last name; provided
that nothing herein shall prevent the court from granting a request to use only
the minor’s initials or only the word “Anonymous;”;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">iv. the date of an individual’s birth (including the date of birth
of minor children), except the year of birth;<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">v. the full name of either party where there are allegations of
domestic violence, neglect, abuse, juvenile delinquency or mental health
issues, except the party’s initials or the first name of the party with the
first initial of the party’s last name; provided that nothing herein shall
prevent the court from granting a request to use only the party’s initials or
only the word “Anonymous;”; and<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">vi. 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 (including a health insurance account number), except
the last four digits or letters thereof.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(2) Nothing herein shall require parties to omit or redact
personal confidential information as described herein or 22NYCRR § 202.5(e) in
papers submitted to the court for filing.<o:p></o:p></span></span></b></p>
<p class="standardfontb" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(3) Nothing herein shall prevent the court from omitting or
redacting more personal confidential information than is required by this rule,
either upon the request of a party or sua sponte.<o:p></o:p></span></span></b></p>
<p class="smallfont" style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt;">Amended effective July 1, 2022 </span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="standardfontb" style="margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="standardfontb" style="mso-outline-level: 1;"><span style="font-family: arial;"><a name="_Toc108596713"><b><span style="color: black; font-size: 11pt;">Section
202.16-b Submission of Written Applications in Contested Matrimonial Actions.</span></b></a><b><span style="color: black; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(1) Applicability. This section shall be applicable to all
contested matrimonial actions and proceedings in Supreme Court authorized by
subdivision (2) of Part B of section 236 of the Domestic Relations Law.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(2) Unless otherwise expressly provided by any provision of the
CPLR or other statute, and in addition to the requirements of 22 NYCRR §202.16
(k) where applicable, the following rules and limitations are required for the
submission of papers in all applications (including post judgment applications)
for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody
and visitation unless said requirements are waived by the judge for good cause
shown:<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(i) Applications that are deemed an emergency must comply with 22
NYCRR§202.8 (e) and provide for notice, where applicable, in accordance with
same. These emergency applications shall receive a preference by the clerk for
processing and the court for signature. Designating an application as an
emergency without good cause may be punishable by the issuance of sanctions
pursuant to Part 130 of the Rules of the Chief Administrative Judge. Any
application designated as an emergency without good cause shall be processed
and considered in the ordinary course of local court procedures.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(ii) Where practicable, all orders to show cause, motions or
cross-motions for relief should be made in one order to show cause or motion or
cross-motion. The utilization of the requirement to move by order to show cause
or notice of motion shall be governed by local part rule.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(iii) Length of Papers: Parties shall comply with the word limitations
in subsections (a)-(f) of 22 NYCRR §202.8(b) as amended.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(iv) Form of Papers: Parties shall comply with the requirements of
22 NYCRR §202.5(a) as amended.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(v) Notwithstanding 22 NYCRR §202.5 -a, papers and correspondence
may be transmitted to the court by fax by a self-represented party without
prior court approval unless prohibited by a local part rule or judicial order.<o:p></o:p></span></span></b></p>
<p class="standardfontb"><b><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">(vi) Self-represented litigants may submit handwritten
applications provided that the handwriting is legible and otherwise in conformity
with all applicable rules<o:p></o:p></span></span></b></p>
<p class="MsoBodyText" style="margin-bottom: 0in; margin-left: 0in; margin-right: 10.2pt; margin-top: 7.15pt; margin: 7.15pt 10.2pt 0in 0in;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt;">(vii) Except for affidavits of net
worth (pursuant to 22 NYCRR §202.16 (b)), retainer agreements (pursuant to Rule
1400.3 of the Joint Rules of the Appellate Division), maintenance guidelines
worksheets and/or child support worksheets, or counsel fee billing statements
or affirmations or affidavits related to counsel fees (pursuant to Domestic
Relations Law §237 and 22 NYCRR §202.16(k)), all of which may include
attachments thereto, all exhibits annexed to any motion, cross motion, order to
show cause, opposition or reply may not be greater than three (3) inches thick
without prior permission of the court. All such exhibits must contain exhibit
tabs. </span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="smallfont" style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt;">Amended effective July 1, 2022 </span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoBodyText" style="text-indent: 27.95pt;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596714"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">It
is error as a matter of law to make an order respecting custody in a pendente
lite context based on controverted allegations without having had the benefit
of a full hearing</span></a><span style="mso-bookmark: _Toc108596714;"></span><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Chukwuemeka v Chukwuemeka, --- N.Y.S.3d ----, 2022 WL 2443815
(Mem), 2022 N.Y. Slip Op. 04287 (2d Dept.,2022) the parties were married in
January 2017 and had one child, born in 2017. In August 2019, the plaintiff
commenced the action for a divorce. Supreme Court, among other things, granted
the plaintiff’s motion, in effect, for temporary primary residential custody of
the parties’ child, without conducting a hearing. The Appellate Division
reversed and remitted for an expedited hearing. It held that custody
determinations should generally be made ‘only after a full and plenary hearing
and inquiry. While the general right to a hearing in custody cases is not
absolute, where facts material to the best interest analysis, and the
circumstances surrounding such facts, remain in dispute, a custody hearing is
required. Moreover, while temporary custody may generally be properly fixed
without a hearing where sufficient facts are shown by uncontroverted
affidavits, it is error as a matter of law to make an order respecting custody,
even in a pendente lite context, based on controverted allegations without
having had the benefit of a full hearing. The record demonstrated disputed
factual issues so as to require a hearing on the plaintiff’s motion, in effect,
for temporary primary residential custody of the child.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596715"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Failure to obtain a marriage
license has no effect on the validity of the marriage</span></a><span style="mso-bookmark: _Toc108596715;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Joseph v Singh, --- N.Y.S.3d ----, 2022 WL 2335753
(Mem), 2022 N.Y. Slip Op. 04158 (2d Dept.,2022) an action for a divorce the
Appellate Division rejected the defendants argument that the Supreme Court had
no authority to enter a judgment of divorce, because the parties never entered
into a valid marriage with each other. The evidence before the Supreme Court
established that, on October 13, 1995, the parties took part in a Hindu wedding
ceremony, conducted by a Hindu religious leader and attended by several guests.
Despite the defendant’s assertion that the parties never intended to be
married, the parties solemnly declared in the presence of a clergyman and at
least one witness that they took each other as husband and wife and, thus, they
entered into a valid marriage. Contrary to the defendant’s contention, the
parties’ failure to obtain a marriage license had no effect on the validity of
their marriage (see Domestic Relations Law § 25).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596716"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">What qualifies as an “intimate
relationship” within the meaning of FCA§ 812(1)(e)<span style="mso-spacerun: yes;"> </span>is based upon consideration of 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.</span></a><span style="mso-bookmark: _Toc108596716;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of
Charter v Allen, --- N.Y.S.3d ----, 2022 WL 2335734, 2022 N.Y. Slip Op. 04167
(2d Dept.,2022) the petitioner commenced a family offense proceeding against
her sister’s partner (respondent). Family Court dismissed the petition for lack
of subject matter jurisdiction. The Appellate Division reversed. It pointed out
that Family Court Act article 8 applies to persons who are or have been in an
intimate relationship regardless of whether such persons have lived together at
any time” (FCA. § 812[1][e]). Although Family Court Act § 812(1)(e) expressly
excludes a “casual acquaintance” and “ordinary fraternization between two
individuals in business or social contexts” from the definition of “intimate
relationship,” “the legislature left it to the courts to determine on a
case-by-case basis what qualifies as an intimate relationship within the
meaning of Family Court Act § 812(1)(e) based upon consideration of factors
such as ‘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. The record demonstrated that the
petitioner knew the respondent for more than 20 years, and the respondent and
the petitioner’s sister held themselves out as husband and wife. During that
period of time, the petitioner and the respondent engaged in general social
activities at each other’s homes, attended holiday and birthday celebrations together,
and traveled together. The petitioner’s sister and the respondent had a
daughter together who identified the petitioner as her aunt. The petitioner
resided in one of the units of a three-family home. The petitioner’s sister,
the respondent, and their daughter, who was approximately 18 years old at the
time of the hearing, resided in one of the other units of that three-family
home. The home was owned by the mother of the petitioner and the petitioner’s
sister. Under the circumstances, the Family Court should have denied the
respondent’s application to dismiss the petition for lack of subject matter
jurisdiction (see Family Ct Act § 812[1]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596717"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Party seeking to modify a
separation agreement that was incorporated, without merger, into a divorce
decree after 2010 Amendments has the burden of establishing a substantial
change in circumstances. Must be<span style="mso-spacerun: yes;"> </span>“sound
and substantial support in the record for imputation of income.</span></a><span style="mso-bookmark: _Toc108596717;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Yezzi v Small, --- N.Y.S.3d ----, 2022 WL 2346962,
2022 N.Y. Slip Op. 04198(3d Dept.,2022) Plaintiff ( father) and defendant
(mother) were married in 1993 and had two children, born in 2004 and 2006. In
2012, the parties signed a separation agreement.<span style="mso-spacerun: yes;"> </span>In 2014, the father commenced the action for
divorce and Supreme Court issued a judgment of divorce that incorporated, but
did not merge, the separation agreement. The mother moved for modification of
the custody and child support arrangements. Following a hearing, the court
issued an order imputing income to the father and, inter alia, ordering him to
pay child support.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division observed that the mother, as the
party seeking to modify a separation agreement that was incorporated, without
merger, into a divorce decree, bore the burden of establishing a substantial
change in circumstances (see Domestic Relations Law § 236[B][9][b][2][i]). The
separation agreement provided that, because the parties were entering into “a
true 50/50 custodial arrangement” and the children’s needs were adequately
being met in each household, there would be no child support payment but,
instead, the parties would contribute to a joint checking account in proportion
to their respective incomes to cover the children’s expenses each month, with
the father contributing $520 and the mother contributing $780. The parties also
indicated that the proportions of their respective contributions could be
adjusted based upon changes in their incomes.<span style="mso-spacerun: yes;">
</span>In 2018, the previous 50/50 custodial arrangement changed, as reflected
in a stipulated order in which the parties agreed to a significant reduction in
the father’s parenting time to only two days per week and one weekend per month
for 10 months of the year. Further, the mother testified at the hearing that
the father had not consistently contributed to the joint account, and she
submitted an email from the father in which he stated that he would no longer
make monthly contributions to the account because he did not deem them
necessary. According to the mother, she now had to pay for many of the
children’s expenses on her own and was unable to afford such things as braces
and summer camp for the children, while the father continued to enjoy a lavish
lifestyle. The Appellate Division found that the mother demonstrated a substantial
change in circumstances to justify a modification of child support.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Supreme Court calculated that the father’s total annual
income was $170,014. It dismissed as not credible the father’s assertion that
his income averaged only $9,162 per year, noting that the father had, by his
own admission, received significant benefits from his farm business that he did
not report as income. The court properly imputed income to the father in
several categories. The court noted that personal expenses of the father had
been paid by the business. The court added these expenses together and then
conservatively attributed only two thirds of the total, or $34,309, as income
to the father. The court also included in the father’s income $73,705,
constituting the father’s draw from the business, and $12,000 as the value of
rent that could have been received from his aunt’s apartment.<span style="mso-spacerun: yes;"> </span>The Appellate Division held that to the
extent that the father testified that some of the expenses were attributable to
the business, the court was under no obligation to credit this aspect of his
testimony, particularly given that the father had inconsistently reported his
income on tax returns and various credit applications.<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that Supreme Court’s determination
to impute an additional $50,000 in income to the father based upon his earning
potential as a result of having obtained a Juris Doctorate degree and a
Master’s degree in public health was an abuse of discretion. There must be
“sound and substantial support in the record for such imputation. According to
the father’s testimony, he had never practiced law, and the last time he held a
job that was directly related to his Master’s degree was in 2004. The record
was devoid of any evidence providing a basis for Supreme Court’s finding that
the father could earn $50,000 by entering the job market with these advanced
degrees. Moreover, the father was not obligated to utilize his degrees when, as
here, he was pursuing a plausible means of support by running his farm
business, and there was no proof that the father could have used his degrees to
earn $50,000 in additional income while simultaneously operating the farm, as
the court’s order contemplated. The record<span style="mso-spacerun: yes;">
</span>lacked a sufficient basis beyond mere speculation for imputing this
income.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596718"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Dismissal of juvenile
delinquency proceeding in the furtherance of justice is an extraordinary remedy
that must be employed only in those rare cases where there is a compelling
factor which clearly demonstrates that prosecution would be an injustice.</span></a><span style="mso-bookmark: _Toc108596718;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of James JJ., 168 N.Y.S.3d
584, 2022 N.Y. Slip Op. 03555 (3d Dept.,2022) a juvenile delinquency proceeding
the Appellate Division reversed an order which dismissed the proceeding in the
furtherance of justice. It held that dismissal in the furtherance of justice is
an extraordinary remedy that must be employed sparingly, that is, only in those
rare cases where there is a compelling factor which clearly demonstrates that
prosecution would be an injustice. In determining such a motion, the statutory
factors which must be considered, individually and collectively, are as
follows: “(a) the seriousness and circumstances of the crime; (b) the extent of
harm caused by the crime; (c) any exceptionally serious misconduct of law
enforcement personnel in the investigation and arrest of the respondent or in
the presentment of the petition; (d) the history, character and condition of
the respondent; (e) the needs and best interest of the respondent; (f) the need
for protection of the community; and (g) any other relevant fact indicating
that a finding would serve no useful purpose” (Family Court Act § 315.2[1]). At
least one of these factors must be readily identifiable and sufficiently
compelling to support the dismissal.<span style="mso-spacerun: yes;">
</span>According to the sworn statement of the victim – the mother of
respondent’s child on the date in question, respondent threw a full,
eight-ounce baby bottle at the victim, which hit her in the face, when she
asked him to feed the child, who was crying. The victim stated that, although
she was bleeding heavily, respondent and his father discouraged her from
seeking medical attention. When she eventually did go to the hospital the next
day, a cut on her face was glued shut by a doctor and she was told to return
for X rays after the swelling had abated. The victim indicated that she felt
unsafe living with the child in the home of respondent and his father. In
reaching its determination, Family Court placed emphasis on the fact that
respondent was only charged with an act that would constitute a misdemeanor if
committed by an adult. However, this was nevertheless a violent act, and the
victim’s allegations reflected “a trend in which respondent’s propensity
towards violence had escalated. The fact that the victim moved out of
respondent’s home with the child on the date of the incident not only
underscored the seriousness of respondent’s alleged conduct, but also belied
Family Court’s finding that the victim was not in need of protection. Family
Court’s dismissal of the petition in furtherance of justice was an improvident
exercise of its discretion. The record did not support the court’s
determination “that a finding of delinquency or continued proceedings would
constitute or result in injustice” (Family Ct Act § 315.2[1]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596719"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">In a neglect proceeding, the
imminent threat of danger to the children must be near or impending, not merely
possible. It is<span style="mso-spacerun: yes;"> </span>focused on the existence
of<span style="mso-spacerun: yes;"> </span>serious harm or potential harm to the
children, not just on what might be deemed undesirable parental behavior</span></a><span style="mso-bookmark: _Toc108596719;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><br />
<span style="mso-tab-count: 1;"> </span>In Matter of Hakeem, ---
N.Y.S.3d ----, 2022 WL 2346960, 2022 N.Y. Slip Op. 04214 (3d Dept.,2022) the
Appellate Division reversed a finding, that respondent neglected the children
by excessively consuming alcohol in such a way that caused her to lose consciousness
while the children were in her care. It pointed out that in a neglect
proceeding, while actual injury or impairment is not necessary, the imminent
threat of danger to the children must be near or impending, not merely
possible.<span style="mso-spacerun: yes;"> </span>Said differently, the inquiry
is focused on the existence of<span style="mso-spacerun: yes;"> </span>serious
harm or potential harm to the children, not just on what might be deemed
undesirable parental behavior. Respondent testified that she and the children
were living in a private room in a homeless shelter in Schenectady at the time
of the incident. After the children had gone to sleep, respondent went into the
bathroom and began drinking a bottle of brandy while talking on the phone with
a family member. According to respondent, the bathroom was accessible through a
small vestibule next to her private room, and she had left the door partially
open so she could see the children while they slept. At some point, respondent
fell asleep while seated on the toilet in the bathroom. She was later awoken by
shelter staff in the early morning hours, and staff contacted an ambulance to
respond. The report from the ambulance service indicated that the responding
ambulance crew encountered respondent in the bathroom and concluded that she
was intoxicated. Respondent was transported to Ellis Hospital in Schenectady .
The Appellate Division found that the record contained sufficient evidence
establishing that respondent failed to exercise a minimum degree of care when
she became intoxicated while the children were under her care and, in effect,
left them unsupervised for a brief period. However, petitioner failed to
establish that respondent’s ill-advised conduct placed the children at risk of
anything beyond, “at most, possible harm”.<span style="mso-spacerun: yes;">
</span>Respondent testified that her youngest children were in age-appropriate
sleeping arrangements that presented no inherent danger resulting from
respondent’s inebriated state. Although there was a period when the children
were no longer supervised by respondent when she was taken to the hospital, the
testimony revealed that shelter staff were watching the children until
petitioner’s supervisor arrived and took custody of them, and there was<span style="mso-spacerun: yes;"> </span>no indication that they were in any danger
during this period of time . Finally, the record was devoid of any proof that
the children were upset or suffered any emotional harm at any point during the
incident. The record failed to provide any indication that the children were
awake during the entirety of the period that respondent was drinking alcohol
and the ensuing period when respondent was asleep in the bathroom across from
their private room .While respondent’s conduct was far from ideal and it is
possible to speculate about the various ways that events could have turned out
differently for the children, petitioner failed to meet its burden to
sufficiently put forth evidence establishing that the children were in imminent
danger.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596720"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Party
arguing that he was deprived on meaningful appellate review as a result of
incomplete hearing transcript must identify the substance of this testimony,
and demonstrate its importance or relevance to the issues raised on appeal.</span></a><span style="mso-bookmark: _Toc108596720;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Webster v Larbour, --- N.Y.S.3d ----, 2022
WL 2498951, 2022 N.Y. Slip Op. 04333 (3d Dept.,2022) a family offense
proceeding the Appellate Division rejected the husband’s argument that he was
deprived of the right to meaningful appellate review as a result of an
incomplete hearing transcript. Although it appeared from the transcript and
accompanying log that, due to an audio equipment malfunction in Family Court, a
portion of the cross-examination and all of the redirect examination of the
husband were not recorded, the husband’s full direct examination, including the
testimony he gave concerning his theory as to the wife’s motivation for commencing
the proceeding, was contained in the record for<span style="mso-spacerun: yes;">
</span>review. As for the missing cross-examination and redirect examination,
the husband did not identify the substance of this testimony, nor had he
demonstrated its importance or relevance to the issues he now raised on appeal.
As such, it found that the missing information was neither material to the
determination nor of such significance as to preclude meaningful review. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596721"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A
party challenging an acknowledgment of paternity more than 60 days after its execution
must initially prove that it “was signed under fraud, duress, or due to a
material mistake of fact.” Only after the petitioner meets this burden will the
Family Court entertain further inquiry into whether that party should be
equitably estopped.</span></a><span style="mso-bookmark: _Toc108596721;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Daniel FF., v. Alicia GG., --- N.Y.S.3d
----, 2022 WL 2500279, 2022 N.Y. Slip Op. 04342(3d Dept.,2022) Respondent
(mother) gave birth to a child in 2017 while she was in a relationship with
petitioner, who signed an acknowledgment of paternity less than two weeks after
the child’s birth. They separated around April 2019. . In March 2021,
petitioner commenced a proceeding to vacate the acknowledgment of paternity.
Following a fact-finding hearing Family Court determined that it was in the child’s
best interests to equitably estop petitioner from denying paternity and
dismissed the petition. The Appellate Division affirmed on different grounds.
Family Ct Act § 516–a (b) generally provides that a party seeking to challenge
an acknowledgment of paternity more than 60 days after its execution must
initially prove that it “was signed under fraud, duress, or due to a material
mistake of fact” (Family Ct Act § 516–a [b][iv]). Only after the petitioner
meets this burden will the Family Court entertain further inquiry into whether
that party should be equitably estopped from challenging paternity. Petitioner
commenced this proceeding well beyond the 60–day statutory deadline and,
therefore, Family Court erred in prematurely considering the equitable estoppel
defense. This error was academic as it found that petitioner failed to satisfy
his initial burden of proof in challenging the voluntary paternity
acknowledgment. He made no reference in the petition to the specific statutory
ground upon which he sought vacatur. To the extent that petitioner’s claim of
infidelity on the mother’s part could be construed as an allegation of a
material mistake of fact or fraud, he failed to plead sufficient facts to
warrant rescission of the paternity acknowledgment on either basis.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596722"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Supreme Court has the power to
direct equitable distribution of the irrevocable choice of a survivor pension
benefit made during the marriage.</span></a><span style="mso-bookmark: _Toc108596722;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
Ulrich v Ulrich, --- N.Y.S.3d ----, 2022 WL 2382909, 2022 N.Y. Slip Op. 04242
(4<sup>th</sup> Dept.,2022) the parties were married in August 2004. By that
time, defendant had been working as a state correction officer for 16 ½ years.
In 2015, while the parties were still married, defendant retired, having accrued
27 ½ years of pension credit. At that time, defendant chose a “pop up” pension
payment option that provided that either he or plaintiff would continue to
receive a pension upon the other’s death but that, should plaintiff die first,
defendant’s pension payment would at that time change to the single life
allowance amount. Plaintiff commenced the divorce action in November 2019. The
Appellate Division held that Supreme Court did not abuse its discretion with
respect to the equitable distribution of defendant’s pension benefit. It held
that the court has the power to direct equitable distribution of the
irrevocable choice of a survivor pension benefit made during the marriage. It
affirmed the judgment which confirmed the report of the Referee, who properly
set forth the relevant statutory factors that she considered and the reasons
for her decision with respect to the pension benefit, The record reflected that
plaintiff made significant contributions to the parties’ marriage to the extent
that she cared for their shared home and both of their children from prior
marriages.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596723"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">In custody proceeding by a
non-parent the extraordinary circumstances analysis must consider the
cumulative effect of all issues present in a given case and not view each
factor in isolation</span></a><span style="mso-bookmark: _Toc108596723;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Byler v Byler, --- N.Y.S.3d ----, 2022 WL
2382450, 2022 N.Y. Slip Op. 04253 (4<sup>th</sup> Dept., 2022) the Appellate
Division affirmed an order which awarded respondent paternal aunt sole custody
of the children upon finding that children’s aunt established extraordinary
circumstances and that it was in the best interests of the children to remain
in the care of the aunt. It rejected the mother’s assertion that the court
improperly relied upon the approximately five-year separation between the mother
and the children. The child may be so long in the custody of the nonparent’
that separation from the natural parent amounts to an extraordinary
circumstance, especially when ‘the psychological trauma of removal is grave
enough to threaten destruction of the child. Conversely, when “the separation
between the natural parent and child is not in any way attributable to a lack
of interest or concern for the parental role, that separation does not amount
to an extraordinary circumstance and, deserves little significance. Here, while
the mother characterized her filing of more than 85 petitions as legitimate
attempts to regain custody of the children during the approximately five years
that they were living with the aunt, the court found that the mother’s numerous
petitions, constituted abusive and harassing litigation that unfairly burdened
the aunt by requiring her to appear to avoid default, thereby justifying its
imposition of judicial screening for any future petitions. The mother’s
numerous petitions were appropriately viewed as abusive and vexatious
litigation rather than serious attempts to regain custody or resume a parental
role in the children’s lives. It noted that the extraordinary circumstances
analysis must consider the cumulative effect of all issues present in a given
case and not view each factor in isolation. It concluded that the aunt met her
burden of establishing that extraordinary circumstances existed based upon the
cumulative effect of, among other things, the mother’s voluntary relinquishment
of physical custody of the children, the subsequent protracted separation
between the mother and the children, the psychological bonding of the children
to the aunt and potential harm to the children if removed from the aunt’s
custody, the mother’s failure to adequately address her ongoing mental health
issues and, importantly, the series of incidents in which the mother engaged in
erratic, unstable, threatening, and psychologically abusive behavior and
communication directed at the children that justifiably rendered the children
fearful of the mother<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The credible evidence that the mother’s prior in-person
supervised visitation was<span style="mso-spacerun: yes;"> </span>already
discontinued, coupled with the mother’s erratic and threatening behaviors,
including repeatedly appearing uninvited at the aunt’s house while approaching
or communicating with the children in a manner that caused them genuine fear,
provided a sound and substantial basis supporting the court’s determination to
limit the mother’s visitation to weekly supervised video or electronic
communication only.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596724"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Where
Plaintiff testified concerning her diagnosis of multiple sclerosis and its
debilitating effects, and submitted voluminous medical records corroborating
her testimony and defendant never disputed plaintiff’s diagnosis and medical
condition, plaintiff was not required to call an expert medical witness at
trial to establish her inability to work.</span></a><span style="mso-bookmark: _Toc108596724;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Anastasi v Anastasi, --- N.Y.S.3d ----, 2022 WL
2582269, 2022 N.Y. Slip Op. 04452 (4<sup>th</sup> Dept, 2022) the Appellate Division
held that where, as here, the trial court gave appropriate consideration to the
factors enumerated in Domestic Relations Law § 236 (B) (former [6] [a]), the
Court will not disturb the determination of maintenance absent an abuse of
discretion. It found that the record supported the court’s determination that
plaintiff was “ ‘unable to work to support herself financially,’ now or at any
point in the future. Plaintiff testified concerning her diagnosis of multiple
sclerosis and its debilitating effects, and submitted voluminous medical
records corroborating her testimony. Under the circumstances, and considering
that defendant never disputed plaintiff’s diagnosis and medical condition,
plaintiff was not required to call an expert medical witness at trial to
establish her inability to work. The court considered the relevant factors in
Domestic Relations Law § 236 (B) (former [6] [a]) in determining the amount and
duration of maintenance considering plaintiff’s reasonable needs and predivorce
standard of living in the context of the other enumerated statutory factors’.
It noted that plaintiff had not worked outside the home since 1998 and that the
parties enjoyed a lifestyle commensurate with a substantial income during the
marriage.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596725"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Res
judicata<span style="mso-spacerun: yes;"> </span>does not require dismissal of
complaint to set aside agreement where the issues in this action were not
identical to those raised by plaintiff in her prior motion and, plaintiff could
have pursued her current claims in the 2018 motion; plaintiff could not have pursued
her claims in the prior motion since a plenary action is required to set aside
a settlement agreement</span></a><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Nagi v Ahmed, --- N.Y.S.3d ----, 2022 WL 2582390, 2022
N.Y. Slip Op. 04461(4<sup>th</sup> Dept., 2022) the Plaintiff commenced an<span style="mso-spacerun: yes;"> </span>action seeking to vacate in part an amended
judgment of divorce entered in 2018 and to set aside the parties’ property
settlement agreement), which was incorporated but not merged into the amended
judgment of divorce. The complaint alleged, among other things, that plaintiff
signed the agreement due to “extraordinary duress and pressure” exerted on her
by defendant, among other people, and that the terms of the agreement are so
favorable to defendant as to render it unconscionable and thus unenforceable.
Supreme Court granted defendants cross-motion for summary judgment on his
affirmative defenses. It dismissed the complaint on the grounds of collateral
estoppel and ratification concluding that plaintiff was collaterally estopped
from challenging the agreement because she sought similar relief by way of a
motion she filed in July 2018 seeking to modify certain provisions of the
agreement and to enforce others. It held that Collateral estoppel applies when
(1) the issues in both proceedings are identical, (2) the issue in the prior
proceeding was actually litigated and decided, (3) there was a full and fair
opportunity to litigate in the prior proceeding, and (4) the issue previously
litigated was necessary to support a valid and final judgment on the merits. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division found that the motion that
plaintiff filed in July 2018 did not seek to vacate the amended judgment of
divorce or to set aside the agreement. The issues in this action were not
identical to those raised by plaintiff in her motion, and defendant thus failed
to meet his initial burden on his cross motion of establishing that collateral
estoppel precludes plaintiff from challenging the agreement.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>It rejected defendants argument that this action was
barred by res judicata because plaintiff could have pursued her current claims
in the 2018 motion. A party seeking to set aside a settlement agreement must do
so in a plenary action. Such relief cannot be obtained on motion. Moreover,
although plaintiff did commence a plenary action in August 2018 to set aside
the agreement on grounds of fraud, duress, and overreaching, she abandoned that
action, and a final judgment was never entered on it. The doctrine of res
judicata requires, among other things, “a valid final judgment” on a prior
action between the parties which was lacking here. There never had been a
determination on the merits of plaintiff’s claims that she signed the agreement
under duress and that the agreement is unconscionable.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected defendant’s contention
that the court properly granted the cross motion because plaintiff ratified the
agreement by acquiescing in it and receiving the benefits under it for a
considerable period of time. A divorce settlement tainted by duress is void ab
initio, not merely voidable, and is, therefore, not subject to ratification by
the mere passage of time. It noted that plaintiff received only meager benefits
under the agreement, which awarded sole custody of the parties’ children to
defendant and awarded no maintenance to plaintiff despite a long-term marriage.
Although plaintiff was not obligated to pay child support under the agreement,
she was unemployed at the time of the divorce action, and thus her child
support obligation would have been minimal. In return for her share of two
family businesses and the marital residence, which was valued at $149,000 with
no encumbrances, plaintiff received a lump sum payment of $15,000. The only
other asset received by plaintiff through equitable distribution was a
seven-year-old used motor vehicle.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596726"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A
court cannot issue a QDRO encompassing rights not provided in the underlying
stipulation, or one that is more expansive than the stipulation</span></a><span style="mso-bookmark: _Toc108596726;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In
Gay v Gay, --- N.Y.S.3d ----, 2022 WL 2586496, 2022 N.Y. Slip Op. 04480(4<sup>th</sup>
Dept., 2022) a postjudgment matrimonial proceeding, plaintiff appealed from a
qualified domestic relations order (QDRO) that directed the New York State and
Local Police and Fire Retirement System to pay defendant her marital share of
plaintiff’s pension pursuant to the Majauskas formula. The Appellate Division
agreed with Plaintiff that Supreme Court erred by deviating from the terms of
the parties’ oral stipulation, which was incorporated but not merged into the
judgment of divorce, because the stipulation provided that the numerator of the
Majauskas formula would be 253 months for plaintiff’s police service during the
marriage, but the court nonetheless added 36 months attributable to plaintiff’s
purchase of three additional years of credit for military service. A proper
QDRO obtained pursuant to a stipulation of settlement can convey only those
rights to which the parties stipulated as a basis for the judgment. An
alternative result would undermine litigants’ freedom of contract by allowing
QDROs to create new rights, or litigants to generate new claims, unexpressed in
the settlement stipulation. Thus, a court cannot issue a QDRO encompassing
rights not provided in the underlying stipulation, or one that is more expansive
than the stipulation. It found that<span style="mso-spacerun: yes;"> </span>the
stipulation unambiguously contemplated including no more than plaintiff’s
police service credit during the marriage as the numerator of the Majauskas
formula and did not contemplate the inclusion of any additional service
credits. The stipulation clearly referred to the numerator as consisting
exclusively of plaintiff’s 21 years and 1 month of police service during the
marriage, which amounted to 253 months.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0525ee; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">June 29, 2022<o:p></o:p></span></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">United States Supreme Court <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span lang="EN-CA" style="font-size: 11pt; mso-ansi-language: EN-CA;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596727"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">[Italy][Petition granted][Ameliorative measures] [Vacated
and remanded]</span></a><span style="mso-bookmark: _Toc108596727;"></span><span style="color: #333333; font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="background: white; margin-bottom: 7.5pt; text-indent: 0.5in;"><b><span style="color: #333333; font-size: 11pt; letter-spacing: -0.05pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white; margin-bottom: 7.5pt; text-indent: 0.5in;"><span style="font-family: arial;"><b><span style="color: #333333; font-size: 11pt; letter-spacing: -0.05pt;">In </span></b><b><span style="color: #333333; font-size: 11pt; mso-fareast-font-family: "Times New Roman";">Golan <i>v</i>.
Saada, ___U.S.___,<span style="mso-spacerun: yes;"> </span>(Supreme Court, June
15, 2022) </span></b><b><span style="color: #333333; font-size: 11pt;">Petitioner
Narkis Golan was a citizen of the United States. She met respondent Isacco
Saada, an Italian citizen, while attending a wedding in Milan, Italy, in 2014.
Golan soon moved to Milan, and the two wed in August 2015. Their son, B. A. S.,
was born the next summer in Milan, where the family lived for the first two
years of B. A. S.’ life.<span style="mso-spacerun: yes;"> </span>The two fought
on an almost daily basis and, during their arguments, Saada would sometimes
push, slap, and grab Golan and pull her hair. Saada also yelled and swore at
Golan and frequently insulted her and called her names, often in front of other
people. Saada once told Golan’s family that he would kill her. Much of Saada’s
abuse of Golan occurred in front of his son. In July 2018, Golan flew with B.
A. S. to the United States to attend her brother’s wedding. Rather than return
as scheduled in August, however, Golan moved into a domestic violence shelter
with B. A. S. In September, Saada filed in Italy a criminal complaint for
kidnapping and initiated a civil proceeding seeking sole custody of B. A. S.<o:p></o:p></span></b></span></p>
<p class="casct" style="background: white; margin-bottom: 7.5pt; margin-left: 0in; margin-right: 0in; margin-top: 0in; margin: 0in 0in 7.5pt;"><span style="font-family: arial;"><b><span style="color: #333333; font-size: 11pt;"> <span style="mso-tab-count: 1;"> </span>Saada
also filed a petition under the Convention and ICARA in the U. S. District
Court for the Eastern District of New York, seeking an order for B. A. S.’
return to Italy. The District Court granted Saada’s petition after a 9-day
bench trial. As a threshold matter, the court determined that Italy was B. A.
S.’ habitual residence and that Golan had wrongfully retained B. A. S. in the
United States in violation of Saada’s rights of custody. The court concluded,
however, that returning B. A. S. to Italy would expose him to a grave risk of
harm. The court observed that there was “no dispute” that Saada was
“violent—physically, psychologically, emotionally, and verbally—to” Golan and
that “B. A. S. was present for much of it.” The court described some of the
incidents B. A. S. had witnessed as “chilling.” While B. A. S. was
not “the target of violence,” undisputed expert testimony established that
“domestic violence disrupts a child’s cognitive and social-emotional
development, and affects the structure and organization of the child’s
brain.” Records indicated that Italian social services, who had been
involved with the couple while they lived in Italy, had also concluded that
“ ‘the family situation entails a developmental danger’ for B. A. S</span><em><span style="color: #333333; font-size: 11pt;">.”</span></em><span style="color: #333333; font-size: 11pt;"> The court found
that Saada had demonstrated no “capacity to change his behavior,” explaining
that Saada “minimized or tried to excuse his violent conduct” during his
testimony and that Saada’s “own expert said . . . that [Saada]
could not control his anger or take responsibility for his behavior.” <o:p></o:p></span></b></span></p>
<p class="casct" style="background: white; margin-bottom: 7.5pt; margin-left: 0in; margin-right: 0in; margin-top: 0in; margin: 0in 0in 7.5pt;"><span style="font-family: arial;"><b><span style="color: #333333; font-size: 11pt;"> <span style="mso-tab-count: 1;"> </span>The
court nonetheless ordered B. A. S.’ return to Italy based on Second Circuit
precedent obligating it to “ ‘examine the full range of options that might
make possible the safe return of a child to the home country’ ” before it
could “ ‘deny repatriation on the ground that a grave risk of harm
exists.’ ” The Second Circuit based this rule on its view that the
Convention requires return “if at all possible.” </span><em><span style="color: #333333; font-size: 11pt;">Blondin</span></em><span style="color: #333333; font-size: 11pt;"> </span><em><span style="color: #333333; font-size: 11pt;">I</span></em><span style="color: #333333; font-size: 11pt;">, 189 F. 3d, at
248. To comply with these precedents, the District Court had required the
parties to propose “ ‘ameliorative measures’ ” that could enable B.
A. S.’ safe return. Saada had proposed that he would provide Golan with $30,000
for expenses pending a decision in Italian courts as to financial support, stay
away from Golan until the custody dispute was resolved, pursue dismissal of the
criminal charges he had filed against Golan, begin cognitive behavioral
therapy, and waive any right to legal fees or expenses under the Convention.
The court concluded that these measures, combined with the fact that Saada and
Golan would be living separately, would “reduce the occasions for violence,”
thereby ameliorating the grave risk to B. A. S. sufficiently to require his
return. <o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white; margin-bottom: 7.5pt; text-indent: 0.5in;"><b><span style="color: #333333; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">The
Second Circuit vacated the return order, finding the District Court’s
ameliorative measures insufficient. Because the record did not support
concluding that no sufficient ameliorative measures existed, the Second Circuit
remanded for the District Court to consider whether such measures, in fact,
existed. After an examination over nine months, the District Court identified
new ameliorative measures and again ordered B. A. S.’ return. The
Second Circuit affirmed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white; margin-bottom: 7.5pt; text-indent: 0.5in;"><span style="font-family: arial;"><b><span style="color: #333333; font-size: 11pt; mso-fareast-font-family: "Times New Roman";">The
Supreme Court, in a unanimous opinion by Justice Sotomayor held that a court is
not categorically required to examine all possible ameliorative measures before
denying a Hague Convention petition for return of a child to a foreign country
once the court has found that return would expose the child to a grave risk of
harm. The discretion to courts under the Convention and ICARA includes the discretion
to determine whether to consider ameliorative measures that could ensure the
child’s safe return. Justice Sotomayor found that </span><span style="color: #333333; font-size: 11pt;">the Second Circuit’s rule, by
instructing district courts to order return “if at all possible,” improperly
elevated return above the Convention’s other objectives. </span><em><span style="color: #333333; font-size: 11pt;">Blondin I</span></em><span style="color: #333333; font-size: 11pt;">, 189 F. 3d, at 248. The
Convention does not pursue return exclusively or at all costs. Rather, the
Convention “is designed to protect the interests of children and their
parents,” </span><em><span style="color: #333333; font-size: 11pt;">Lozano</span></em><span style="color: #333333; font-size: 11pt;">,
572 U. S., at 19 (<span class="smallcaps"><span style="font-variant: small-caps;">Alito</span></span>,
J., concurring), and children’s interests may point against return in some
circumstances. Courts must remain conscious of this purpose, as well as the
Convention’s other objectives and requirements, which constrain courts’
discretion to consider ameliorative measures in at least three ways.<span style="mso-spacerun: yes;"> </span><span style="letter-spacing: -0.05pt;"><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal" style="background: white; margin-bottom: 7.5pt; text-indent: 0.5in;"><b><span style="color: #333333; font-size: 11pt;"><span style="font-family: arial;">First, any consideration of ameliorative
measures must prioritize the child’s physical and psychological safety. A
court may decline to consider imposing ameliorative measures where it is clear
that they would not work because the risk is so grave. Sexual abuse of a child
is one example of an intolerable situation. Other physical or
psychological abuse, serious neglect, and domestic violence in the home may
also constitute an obvious grave risk to the child’s safety that could not
readily be ameliorated. A court may also decline to consider imposing
ameliorative measures where it reasonably expects that they will not be
followed. <o:p></o:p></span></span></b></p>
<p class="casct" style="background: white; margin-bottom: 7.5pt; margin-left: 0in; margin-right: 0in; margin-top: 0in; margin: 0in 0in 7.5pt; text-indent: 0.5in;"><b><span style="color: #333333; font-size: 11pt;"><span style="font-family: arial;">Second, consideration of
ameliorative measures should abide by the Convention’s requirement that courts
addressing return petitions do not usurp the role of the court that will
adjudicate the underlying custody dispute. A court ordering ameliorative
measures in making a return determination should limit those measures in time
and scope to conditions that would permit safe return, without purporting to
decide subsequent custody matters or weighing in on permanent arrangements. <o:p></o:p></span></span></b></p>
<p class="casct" style="background: white; margin-bottom: 7.5pt; margin-left: 0in; margin-right: 0in; margin-top: 0in; margin: 0in 0in 7.5pt;"><b><span style="color: #333333; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="casct" style="background: white; margin-bottom: 7.5pt; margin-left: 0in; margin-right: 0in; margin-top: 0in; margin: 0in 0in 7.5pt; text-indent: 0.5in;"><b><span style="color: #333333; font-size: 11pt;"><span style="font-family: arial;">Third, any consideration
of ameliorative measures must accord with the Convention’s requirement that
courts act expeditiously in proceedings for the return of children. Timely
resolution of return petitions is important in part because return is a
“provisional” remedy to enable final custody determinations to proceed. A
requirement to “examine the full range of options that might make possible the
safe return of a child,” is in tension with this focus on expeditious
resolution. Consideration of ameliorative measures should not cause undue delay
in resolution of return petitions.<o:p></o:p></span></span></b></p>
<p class="casct" style="background: white; margin-bottom: 7.5pt; margin-left: 0in; margin-right: 0in; margin-top: 0in; margin: 0in 0in 7.5pt;"><b><span style="color: #333333; font-size: 11pt;"><span style="font-family: arial;"> <span style="mso-tab-count: 1;"> </span>Justice
Sotomayor summarized the Courts holding as follows: “ …although nothing in the
Convention prohibits a district court from considering ameliorative measures,
and such consideration often may be appropriate, a district court reasonably
may decline to consider ameliorative measures that have not been raised by the
parties, are unworkable, draw the court into determinations properly resolved
in custodial proceedings, or risk overly prolonging return proceedings. The
court may also find the grave risk so unequivocal, or the potential harm so
severe, that ameliorative measures would be inappropriate. Ultimately, a
district court must exercise its discretion to consider ameliorative measures
in a manner consistent with its general obligation to address the parties’
substantive arguments and its specific obligations under the Convention. A
district court’s compliance with these requirements is subject to review under
an ordinary abuse-of-discretion standard.”<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white; margin-bottom: 7.5pt; text-indent: 0.5in;"><b><span style="color: #333333; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">In
this case, the District Court made a finding of grave risk, but never had the
opportunity to inquire whether to order or deny return under the correct legal
standard. It was appropriate to allow the District Court to apply the proper
legal standard in the first instance, see <i>Monasky </i>v. <i>Taglieri</i>,
589 U. S. ___, ___. The Court held that the District Court should
determine whether the measures considered are adequate to order return in light
of the District Court’s factual findings concerning the risk to
B. A. S., bearing in mind that the Convention sets as a primary goal
the safety of the child. The order of the Second Circuit was vacated and the
case remanded.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Court of Appeals<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596728"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Authenticated Screen Shots Properly Admitted into
Evidence. Proper foundation may be established through testimony that the
screen shot accurately represents the subject matter depicted.</span></a><span style="mso-bookmark: _Toc108596728;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: 0.5in; vertical-align: top;"><span style="font-family: arial;"><b><span style="color: #4a4a4a; font-size: 11pt; mso-fareast-font-family: "Times New Roman";">In People v Rodriguez,
2022 NY Slip Op 03307 (2022) </span></b><b><span style="color: #1e1e1e; font-size: 11pt; mso-fareast-font-family: "Times New Roman";">the<span style="mso-spacerun: yes;"> </span>charges against defendant<span style="mso-spacerun: yes;"> </span>included sending numerous text messages
containing sexual content to the 15-year-old victim, a player on his volleyball
team. Text messages that defendant sent to the victim came to light when the
victim's 16-year-old boyfriend observed them on her phone, took screenshots of
messages that were sexual in nature, and forwarded the screenshots to the
victim's mother and himself. The Court of Appeals held that the trial court
acted within its discretion in determining that the People properly
authenticated the screenshots.<span style="mso-spacerun: yes;"> </span>It
observed that technologically generated documentation is ordinarily admissible
under standard evidentiary rubrics and this type of ruling may be disturbed by
this Court only when no legal foundation has been proffered or when an abuse of
discretion as a matter of law is demonstrated.<span style="mso-spacerun: yes;">
</span>The Court noted that it had recently held that for digital photographs,
like traditional photographs, "the proper foundation [may] be established
through testimony that the photograph accurately represents the subject matter
depicted" (<i>People v Price,</i> </span></b><a href="https://www.leagle.com/cite/29%20N.Y.3d%20472"><b><span style="color: #00528b; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">29 N.Y.3d 472</span></b></a><b><span style="color: #1e1e1e; font-size: 11pt; mso-fareast-font-family: "Times New Roman";">,
477 [2017] It<span style="mso-spacerun: yes;"> </span>reiterated that
"[r]arely is it required that the identity and accuracy of a photograph be
proved by the photographer" which would be the boyfriend here. Rather,
"any person having the requisite knowledge of the facts may verify"
the photograph "or an expert may testify that the photograph has not been
altered." Here, the testimony of the victim, a participant in and witness
to the conversations with defendant, sufficed to authenticate the screenshots.
She testified that all of the screenshots offered by the People fairly and
accurately represented text messages sent to and from defendant's phone. The
boyfriend also identified the screenshots as the same ones he took from the
victim's phone on November 7. Telephone records of the call detail information
for defendant's subscriber number corroborated that defendant sent the victim
numerous text messages during the relevant time period. Under these
circumstances, there was no abuse of discretion as a matter of law in the court's
determination that the screenshots of the texts messages were sufficiently
authenticated or in admission of the screenshots into evidence. <o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, First Departent <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596729"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">No increase in pendente lite
child support award was warranted Where Defendant failed to establish that the
pendente lite child support award was insufficient</span></a><span style="mso-bookmark: _Toc108596729;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Anonymous v Anonymous,--- N.Y.S.3d ----, 2022 WL 2308862 (Mem), 2022 N.Y. Slip
Op. 04114 (1<sup>st</sup> Dept.,2022) the Appellate Division affirmed an order
that awarded pendente lite child support. It held that no increase was
warranted as Defendant failed to establish that the pendente lite child support
award was insufficient. She argued that the award was inadequate in light of
plaintiff’s wealth, but not that it was insufficient to meet the child’s actual
needs or to support a lifestyle appropriate for the child (see DeNiro v.
DeNiro, 185 AD3d 465 [1st Dept 2020]; Sykes v. Sykes, 43 Misc.3d 1220[A], 2014
N.Y. Slip Op 50731[U], *22 [Sup Ct, N.Y. County 2014] ).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596730"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">A single instance of domestic
violence may be a proper basis for a finding of neglect.</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span> </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
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<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Esther N., --- N.Y.S.3d ----, 2022 WL
2308871, 2022 N.Y. Slip Op. 04126 (1<sup>st</sup> Dept.,2022) the Appellate
Division affirmed a finding that respondent father neglected the four subject
children. The findings of neglect were supported by a preponderance of the
evidence that the father committed acts of domestic violence in the presence of
two of the children and while the other two children were in the apartment (see
Family Ct Act §§ 1012[f][i][B]; 1046[b][i]) The credited testimony of the
mother and the caseworker at the fact-finding hearing demonstrated that the
father punched the mother with a closed fist while he was arguing with her about
the family’s expenses in the living room where two of the children were
present, and then continued fighting with her behind a closed bedroom door,
leading the children to ask him to stop and to summon the police. The two
children’s out-of-court statements that after they saw the father punch the
mother with a closed fist, the eldest daughter summoned the police to stop the
altercation as testified to by the caseworker was supported by the mother’s
testimony about the incident. A single instance of domestic violence may be a
proper basis for a finding of neglect. The record, including the mother’s
testimony that those children told her that they summoned the police because
they were scared of what he was going to do to her, supported the finding that
the two older children were in danger of or were emotionally impaired by the
domestic violence that he inflicted upon the mother while they were present.
The two younger children, who were in their own bedroom when the incident
occurred, were in imminent danger of physical impairment due to their proximity
to the violence directed at the mother even in the absence of evidence that
they were aware of the incident or emotionally affected by it<o:p></o:p></span></span></b></p>
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<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596731"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Support Magistrate’s
determination that respondent’s failure to pay child support as ordered was not
willful affirmed where it rested largely on his credibility findings, to which
great deference is owed</span></a><span style="mso-bookmark: _Toc108596731;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Laura R., v. Christopher B., --- N.Y.S.3d
----, 2022 WL 2164235, 2022 N.Y. Slip Op. 03978 (1<sup>st</sup> Dept.,2022) the
Appellate Division affirmed an order that, inter alia,<span style="mso-spacerun: yes;"> </span>determined that respondent father’s failure
to pay child support was not willful. It held that the <span style="color: black; mso-themecolor: text1;">Support Magistrate’s determination that respondent’s
failure to pay child support as ordered was not willful rested largely on his
credibility findings, to which great deference is owed</span>. The Support
Magistrate found that respondent testified credibly that he could not have
sought regular employment because of his parenting responsibilities. The parties’
three children lived with him full time during most or all of the relevant
period. Before the COVID–19 pandemic started, he shuttled them between home in
New Jersey and school in New York City, and after the pandemic started he
supervised the children, who all had Individual Education Programs, in their
remote learning at home. He spent the summer of 2020 with them, taking them to
baseball practice and games. Petitioner had shown no reason to disturb the
Magistrate’s findings that this testimony was credible. Petitioner’s reliance
on cases in which a party could have sought employment but did not do so was
therefore misplaced.<o:p></o:p></span></span></b></p>
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<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596732"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Finding of Neglect due to the
mother’s long-standing history of mental illness and resistance to treatment,
notwithstanding the absence of a definitive diagnosis</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Siri V. --- N.Y.S.3d ----, 2022 WL 2163064
(Mem), 2022 N.Y. Slip Op. 03982 (1<sup>st</sup> Dept.,2022) the Appellate
Division found that a preponderance of the evidence supported Family Court’s
finding that the children’s physical, mental, or emotional condition was in
imminent danger of becoming impaired as a result of the mother’s long-standing
history of mental illness and resistance to treatment, notwithstanding the
absence of a definitive diagnosis The finding of neglect was supported by the
hospital records concerning the mother’s disturbing behavior with her newborn
daughter, which indicated that the mother continued to suffer from the mental
health issues that had resulted in a previous finding of neglect in 2016<span style="mso-spacerun: yes;"> </span>Indeed, after the neglect finding in 2016,
the mother’s two oldest children were removed from her care after she failed to
seek mental health treatment and take her prescribed medication as ordered by
Family Court, and the 2016 finding was not too remote in time from this
proceeding to support a reasonable conclusion that the condition still existed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596733"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The hearing court must state
in its decision the facts it deems essential’ to its determination (CPLR 4213[b]).
Custody order reversed where<span style="mso-spacerun: yes;"> </span>Family
Court did not identify the facts adduced at the hearing that supported its
denial of the mother’s custody modification petition and Appellate Division
made its own findings.</span></a><span style="mso-bookmark: _Toc108596733;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Smith v Francis, --- N.Y.S.3d ----, 2022 WL 2232129,
2022 N.Y. Slip Op. 04026 (2d Dept.,2022) the Appellate Division reversed an
order of the Family Court made after a hearing which denied the mothers
petition to modify a 2018 custody order to award her residential custody of the
child. After the<span style="mso-spacerun: yes;"> </span>court conducted a
hearing it<span style="mso-spacerun: yes;"> </span>concluded that the mother had
failed to prove that there had been a change in circumstances warranting a
modification of the existing custody arrangement. The Appellate Division found
it lacked a sound and substantial basis in the record. It pointed out that to
facilitate effective appellate review, the hearing court “must state in its
decision ‘the facts it deems essential’ to its determination” (CPLR 4213[b]).
Here, the Family Court did not identify the facts adduced at the hearing that
supported its denial of the mother’s petition. The evidence at the hearing
showed that, on numerous occasions after the issuance of the 2018 custody
order, the father, in the child’s presence, denigrated the mother and behaved
inappropriately toward her. He consistently failed to make the child available
for telephone and video calls with the mother as required by the original
custody order, routinely ignored the mother’s attempted communications with the
child, and repeatedly failed to adhere to the court-ordered parental access
schedule. The father not only refused to foster a good relationship between the
mother and the child, he expressly testified that he did not believe he had an
obligation to do so, but actively sought to thwart such a relationship.
Parental alienation of a child from the other parent is an act so inconsistent
with the best interests of the child as to, per se, raise a strong probability
that the offending party is unfit to act as custodial parent. In addition,
during the period following the issuance of the custody order, the father
demonstrated a lack of interest in the child’s education and development by,
among other things, refusing to have the child evaluated for learning
disabilities or treated for his speech impediment. Moreover, the father failed
to respond to the mother’s inquiries about the child’s health, education, and
safety.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
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<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596734"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Pendente lite awards affirmed
where defendant failed to establish the existence of any exigent circumstances
warranting a modification of these awards, and any perceived inequity could
best be remedied by a speedy trial</span></a><span style="mso-bookmark: _Toc108596734;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Safir v Safir, --- N.Y.S.3d ----, 2022 WL 2136811,
2022 N.Y. Slip Op. 03917(2d Dept.,2022) the parties were married in August 2003
and had four children together. In or about July 2020, the plaintiff commenced
this action for a divorce. The plaintiff moved for an award of pendente lite
relief, including, among other things, sole physical custody of the parties’
children. The defendant cross-moved for pendente lite relief, including, among
other things, sole physical custody of the children and to direct the plaintiff
to pay an equal share of all household expenses. Supreme Court denied those
branches of the<span style="mso-spacerun: yes;"> </span>motions which sought
temporary custody of the children. However, for the purpose of pendente lite
child support, the court determined that the plaintiff was the “de facto”
custodial parent of the children because, inter alia, the children were
residing with the plaintiff in the marital residence at the time, while the
defendant was residing elsewhere. Thus, the court concluded that the defendant
was obligated to pay pendente lite child support to the plaintiff, and awarded
the plaintiff $6,000 per month for pendente lite child support. Based upon the
parties’ lifestyle during the marriage, the cost of maintaining the marital
residence, the plaintiff’s absence from the work force, and the defendant’s
payment of all marital expenses during the marriage, the court directed the
defendant to maintain the status quo by continuing to pay, pendente lite, 100%
of the carrying charges for the marital residence, including the costs of the
real estate taxes, homeowner’s insurance, homeowner’s association dues, and
repairs associated with that property; 100% of the carrying charges,
maintenance costs, and other expenses attributable to the Florida property; and
74% of the cost of employing two housekeepers. In doing so, the court, in
effect, imputed income to the defendant, finding that he had voluntarily
reduced his income by moving to a part-time employment schedule shortly before
the commencement of the action, and utilized the plaintiff’s base salary as her
annual gross income. The court also directed the parties to pay, pendente lite,
their pro rata share of the costs of the summer camp, education, tutoring, and
extracurricular activities for the children, and directed the parties to pay
their pro rata share of the cost of tennis lessons for the children, if the
parties agreed to continue such lessons. If the parties could not agree on
whether to continue tennis lessons for the children, or the form thereof, the
court directed that “either party may choose to pay 100% of the cost of the
type of tennis lesson they prefer.” The court further determined that the
defendant was “undoubtedly the monied spouse,” given that his “reduced,
part-time income is more than twice the Plaintiff’s current salary,” and that
he had “access to substantial amounts of separate assets.” As a result, the
court directed the defendant to pay interim counsel fees for the plaintiff of
$30,000.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division affirmed. It pointed out that
modifications of pendente lite awards should rarely be made by an appellate
court and then only under exigent circumstances, such as where a party is unable
to meet his or her financial obligations, or justice otherwise requires. It
held that the Supreme Court did not improvidently exercise its discretion in
directing the pendente lite awards. The court providently, in effect, imputed
income to him and determined the plaintiff’s income, at that point in time,
based solely upon her base salary. The defendant failed to establish the
existence of any exigent circumstances warranting a modification of these
awards, and any perceived inequity could best be remedied by a speedy trial, at
which the parties’ financial circumstances could be fully explored For the same
reason, the court properly denied the defendant’s cross motion.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596735"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Error to deny without a
hearing, the mother’s motion to modify custody where, among other things,<span style="mso-spacerun: yes;"> </span>she alleged that although the plaintiff had
been awarded residential custody, the parties and the children had continued to
live together as a family in the marital home for nearly four years and that
she had been the children’s primary caregiver</span></a><span style="mso-bookmark: _Toc108596735;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In O’Mahoney v. O’Mahoney, --- N.Y.S.3d ----, 2022 WL
2136807, 2022 N.Y. Slip Op. 03901(2d Dept.,2022) the plaintiff and the
defendant were married in 2004. The parties’ children were born in 2011. The
parties were divorced by a judgment dated May 4, 2016. Pursuant to the judgment
of divorce, the parties were awarded joint legal custody of the children, the
plaintiff was awarded residential custody, with parental access to the
defendant, and the defendant was to pay child support. . In September 2020, the
defendant moved, inter alia, to modify the custody provisions of the judgment
of divorce. Supreme Court denied the defendant’s motion. The Appellate Division
held that the Supreme Court erred in denying, without a hearing, the defendant’s
motion to modify the custody provisions in the judgment of divorce. The
defendant alleged that although the plaintiff had been awarded residential
custody, the parties and the children had continued to live together as a
family in the marital home for nearly four years after the divorce and that the
defendant had been the children’s primary caregiver. The defendant also
provided evidence that the plaintiff had interfered with her right to joint
legal custody of the children and her “reasonable rights of visitation” as
provided for in the judgment of divorce. Finally, the plaintiff and the
defendant raised specific, contested allegations as to the other’s fitness to
serve as the custodial parent. Accordingly, the defendant made an evidentiary
showing of changed circumstances requiring a change of custody to ensure the
best interests of the children, and a hearing was necessary to determine
whether the custody provisions in the judgment of divorce should be modified.
It remitted the matter to the Supreme Court for the appointment of an attorney
for the children, a hearing and a new determination.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596736"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Motion to vacate<span style="mso-spacerun: yes;"> </span>default granted where the Family Court,
granted the father’s oral application and modified the order of custody and
visitation to grant relief which far exceeded that requested in his petition,
without first receiving any testimony or other admissible evidence upon which
it could determine whether modification was required</span></a><span style="mso-bookmark: _Toc108596736;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Hogan v Smith,<span style="mso-spacerun: yes;"> </span>--- N.Y.S.3d ----, 2022 WL 2136773 (Mem),
2022 N.Y. Slip Op. 03894 (2d Dept., 2022) the Appellate Division reversed an
order which denied the mother’s motion to vacate the final order of custody and
visitation which was granted upon her default. It found that upon the
conclusion of the proceedings on May 6, 2021, the Family Court, inter alia,
granted the father’s oral application and modified the order of custody and
visitation dated October 6, 2020, so as to grant the father relief which far
exceeded that requested in his petition, without first receiving any testimony
or other admissible evidence in the matter upon which it could determine
whether modification was required to protect the best interests of the
children. Under these circumstances, and in light of the policy favoring
resolutions on the merits in child custody proceedings, the court improvidently
exercised its discretion in denying the mother’s motion to vacate the final
order of custody and visitation. It reversed the order, granted the mother’s
motion and remitted the matter to the Family Court for further proceedings on
the father’s petition.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596737"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Support Magistrate’s failure
to explain in the order of disposition the reasoning for her determination to
deny the mother’s request for a purge payment or weekend incarceration did not
constitute a violation of Family Court Act § 454(4).</span></a><span style="mso-bookmark: _Toc108596737;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Santman v. Schoenfeldt,--- N.Y.S.3d ----,
2022 WL 2136768 (Mem), 2022 N.Y. Slip Op. 03897 (2d Dept.,2022) the Support
Magistrate found that the father’s failure to pay child support was willful,
directed the father to pay the mother child support arrears of $20,204 at a
rate of $250 per month, and denied the mother’s request to commit the father
for a period of incarceration unless he paid a purge amount. The Appellate
Division held, inter alia, that contrary to the mother’s contention, the
Support Magistrate’s failure to explain in the order of disposition the
reasoning for her determination to deny the mother’s request for a purge
payment or weekend incarceration did not constitute a violation of Family Court
Act § 454(4). The Support Magistrate complied with the statute by setting forth
the facts upon which the determination was based. Any purported failure to
specifically address the mother’s requests does not amount to a statutory
violation requiring remand for further proceedings.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596738"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Imputation of income to the
father based upon the free housing and use of vehicles he received was not
supported by the record, where the Support Magistrate conducted her own
research to estimate the value of the father’s housing and adopted the mother’s
unsubstantiated estimate of the value of the father’s vehicle use.</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Sorscher v. Auerbach --- N.Y.S.3d ----, 2022
WL 2136784, 2022 N.Y. Slip Op. 03898 --- N.Y.S.3d ----, 2022 WL 2136784, 2022
N.Y. Slip Op. 03898 (2d Dept.,2022) the Appellate Division pointed out that
while a Support Magistrate is afforded considerable discretion in determining
whether to impute income to a parent, a determination to impute income will be
rejected where the amount imputed was not supported by the record, or the
imputation was an improvident exercise of discretion. Here, as the Family Court
determined, the Support Magistrate’s imputation of income to the father based
upon the free housing and use of vehicles he received was not supported by the
record, as the Support Magistrate set forth in her findings of fact that she
conducted her own research to estimate the value of the father’s housing and
adopted the mother’s unsubstantiated estimate of the value of the father’s
vehicle use. Although it agreed with the Support Magistrate’s initial
determination to impute an income to the father based upon his housing and
vehicle use, the Family Court should have remitted the matter to the Support
Magistrate to determine the appropriate value, if any, to be imputed to the
father for his free housing and vehicle use. It remitted the matter to the
Family Court for a hearing to be conducted concerning the limited issue of
whether a value can be ascertained for the father’s free housing and vehicle
use, and a new determination, if necessary, of the father’s income.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">June 15, 2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596739"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Relocation
to Georgia permitted mother who was the primary caregiver where the father was
not involved in the child’s day-to-day life, education, or healthcare, and kept
in contact with the child more through phone and FaceTime calls, rather than
in-person visits.</span></a><span style="mso-bookmark: _Toc108596739;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Thomas v Mobley, --- N.Y.S.3d ----, 2022 WL
2057827, 2022 N.Y. Slip Op. 03731 (2d Dept.,2022) the parties had one child
together, who was born in July 2008. In an order dated April 30, 2015 which was
entered upon the agreement of the parties, the parties were awarded joint legal
custody of the child, the mother was awarded residential custody, and the
father was awarded parenting time. The custody order specified that neither
party was permitted to relocate with the child outside of Nassau or Suffolk
Counties without consent of the other party or of the court. By petition dated
March 12, 2019, the mother sought to modify the custody order to permit her to
relocate with the child to Georgia. Family Court granted the mother’s petition
and directed that the father have parenting time with the child in Georgia on
10 days’ notice to the mother. The Appellate Division found that the mother
demonstrated a change in circumstances, providing a sufficient basis to conduct
a hearing. She presented evidence that, since the custody order was issued, the
safety in her neighborhood had declined, requiring her to move to protect the
child’s safety, which led to a drastic increase in her living expenses. She
also presented evidence that she had a job opportunity in Georgia with a higher
salary than what she could earn in New York and that her living expenses would
be lower in Georgia than they were in New York. The mother established by a
preponderance of the evidence that relocating to Georgia was in the child’s
best interests . The mother had sound reasons for wanting to relocate,
including providing the child with a better environment and increased financial
stability. The Family Court’s determination to credit the mother’s testimony as
to how the move would improve her finances was entitled to deference. As to the
father’s relationship with the child, who was 11 years old at the time of the
hearing, the evidence demonstrated that the mother was the primary caregiver;
that the father was not involved in the child’s day-to-day life, education, or
healthcare; and that the father kept in contact with the child more through
phone and FaceTime calls, rather than through in-person visits, which he could
continue if the child moved to Georgia. The evidence demonstrated that the
child liked the area where the mother sought to move, he had extended family in
Georgia, several of the mother’s family members who saw the child regularly in
New York were also moving to Georgia, and the child could visit the father
during school breaks. It remitted the matter to the Family Court, to set forth
a more detailed schedule for parental access, which must specify how the
parties are to pay for the travel associated with the schedule.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">Appellate Division, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596740"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">In
determining whether a parent’s belief regarding the need to use physical force
to maintain discipline was reasonable, the trier of fact must consider whether
a reasonable person in the same position as the parent would have believed that
such force was necessary</span></a><span style="mso-bookmark: _Toc108596740;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Nicole J v Joshua J,--- N.Y.S.3d ----, 2022
WL 2068682, 2022 N.Y. Slip Op. 03780 (3d Dept.,2022) a custody modification and
family offense proceeding, the evidence established that, in addition to
perpetrating acts of domestic violence against the mother, the father, who had
supervised visitation, frequently became frustrated with the child and would
yell and curse at her. During the incident that prompted the mother to file the
family offense petition, the father had difficulty managing the then
two-year-old child’s desire to play with toys in an adjoining room. The father
“yelled” and, according to the initial supervisor, “grabbed the child by the
arm and threw her on a chair pretty aggressively, causing her to cry for an
extended period of time. The father then cursed at the child, called her names
and likened her to her mother in a disparaging way. There was evidence that the
father had been similarly impatient and physically aggressive with the mother’s
other children. The interim report resulting from a Family Ct Act § 1034
investigation, which was admitted into evidence, stated that there were child
protective concerns related to the father’s temper. In independently
reviewing<span style="mso-spacerun: yes;"> </span>the record to determine
whether a fair preponderance of the evidence supported a finding that the
father committed one of the qualifying family offenses the Appellate Division
found that the proof established that the father committed the family offense
of harassment in the second degree and that he was not entitled to a
justification defense. As relevant here, a person is guilty of harassment in
the second degree when, with intent to harass, annoy or alarm another person he
or she strikes, shoves, kicks or otherwise subjects such other person to
physical contact, or attempts or threatens to do the same (Penal Law §
240.26[1]; see Family Ct Act § 812[1]). However, a child’s caretaker may use
reasonable physical force for the purpose of discipline (Penal Law § 35.10[1]).
In determining whether a parent’s belief regarding the need to use physical
force to maintain discipline was reasonable, the trier of fact must consider
whether a reasonable person in the same position as the parent would have
believed that such force was necessary. The evidence demonstrated that the
father used an aggressive amount of physical force to grab the two-year-old
child by her arm and throw her in a chair, after which he yelled profane and
disparaging insults at the child. The father’s conduct and language toward the
child, which did not constitute reasonable disciplinary measures, evinced an
intent to alarm the child. It found that the proof adduced at the hearing
sufficiently established, by a preponderance of the evidence, that the father
committed the family offense of harassment in the second degree (Penal Law §
240.26[1]; Family Ct Act § 812[1]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596741"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A
father who has promptly taken every available avenue to demonstrate that he is
willing and able to enter into the fullest possible relationship with his
under-six-month-old child should have an equally fully protected interest in
preventing termination of the relationship, even if he has not as yet actually
been able to form that relationship.</span></a><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><span style="font-family: arial;"><b><span lang="EN-CA" style="font-size: 11pt;"> </span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Adoption of William,<span style="mso-spacerun: yes;"> </span>--- N.Y.S.3d ----, 2022 WL 2092955, 2022 N.Y.
Slip Op. 03831 (4<sup>th</sup> Dept.,2022) the Appellate Division affirmed an
order that determined that the consent of respondent-petitioner Douglas W.M.
(father) was required for the adoption of William, his biological son and
awarded custody of the child to the father. It found a sound and substantial
basis to support the determination that the father demonstrated “his
willingness to take parental responsibility” (Matter of Raquel Marie X., 76
N.Y.2d 387[1990]. It held that a father who has promptly taken every available
avenue to demonstrate that he is willing and able to enter into the fullest
possible relationship with his under-six-month-old child should have an equally
fully protected interest in preventing termination of the relationship by
strangers, even if he has not as yet actually been able to form that
relationship. It found that the<span style="mso-spacerun: yes;"> </span>father
did everything possible to manifest and establish his parental responsibility’
under the circumstances. He publicly acknowledged his paternity from the outset
of the pregnancy, and, although he did not pay any expenses in connection with
the pregnancy or the birth, he testified that all of those expenses were paid
by the military. Prior to the child’s birth, the father pursued paternity
testing and requested and received from the mother a commitment that he could
have custody of the child, and actively began purchasing “items” in
anticipation of obtaining custody of the child upon birth. Based on the
mother’s commitment, the father enlisted the help of his military commanding
officers to obtain custody of his child, and made plans for relatives or family
friends to help care for the child until his enlistment in the military ended.
It found that the father established his ability to assume custody of the
child. Custody and housing are separate and distinct concepts. A parent who
lacks housing for a child is not legally precluded from obtaining custody.
Certainly, active military members should not lose custody of a child due to
their service to our country. Many parents enlist the aid of family members to
help them provide housing, including single parents who serve in the military.
That temporary inability to provide housing should not preclude them from
asserting their custodial rights to the children where, as here, they have
established their intent to embrace their parental responsibility. The father
reasonably and sincerely believed that the biological mother would not
surrender the child for adoption, and she frustrated his efforts to become
involved with the child. The evidence at the hearing established that the
mother lied to the father, telling him that she would give him custody of the
child; misled petitioners into believing that the father did not want the
child, even though she knew that he was aggressively pursuing custody; and
misled the courts by filing a false affidavit stating that no one was holding
himself out as the father.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">June 8,
2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span lang="EN-CA" style="font-size: 11pt; mso-ansi-language: EN-CA;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596742"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Finding
of neglect based solely on use of marijuana, without a finding of actual or
imminent impairment of the child’s physical or emotional condition, is
inconsistent with public policy legalizing marijuana</span></a><span style="mso-bookmark: _Toc108596742;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Saaphire A.W., 204 A.D.3d 488, 166 N.Y.S.3d
627, 2022 N.Y. Slip Op. 02382 (1<sup>st</sup> Dept.,2022) the Appellate
Division held that the evidence that the mother smoked marijuana while pregnant
with her youngest daughter, and that the mother and child both tested positive
for marijuana at the time of the birth, was insufficient, in and of itself, to
sustain a finding that the child was physically, mentally or emotionally
impaired, or was in imminent danger of being impaired. There was no evidence
that the mother’s marijuana use impacted her judgment or behavior, or that the
child was impaired or placed in imminent risk of impairment by the mother’s
drug use. Furthermore, the finding of neglect based solely on use of marijuana,
without a finding of actual or imminent impairment of the child’s physical or
emotional condition, is inconsistent with this State’s public policy legalizing
marijuana, as reflected in the amendment to the Family Court Act (Family Court
Act § 1046[a][iii] [L 2021, ch 92, § 58, eff March 31, 2021]). <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">Appellate Division, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596743"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Family
Ct Act § 1046(a)(iii) specifically forecloses a prima facie neglect finding
based solely upon the use of marihuana</span></a><span style="mso-bookmark: _Toc108596743;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of Micah
S.--- N.Y.S.3d ----, 2022 WL 1786627, 2022 N.Y. Slip Op. 03554 (3 Dept.,2022)
the Appellate Division observed in a footnote that the Marihuana Regulation and
Taxation Act (L 2021, ch 92) amended Family Ct Act § 1046(a)(iii), in pertinent
part, by specifically foreclosing a prima facie neglect finding based solely
upon the use of marihuana, while still allowing for consideration of the use of
marihuana to establish neglect, provided “that there is a separate finding that
the child’s physical[,] mental or emotional condition was impaired or is in
imminent danger of becoming impaired.”<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596744"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Appeal
by Nonrespondent mother in Neglect Proceeding dismissed where the arguments
advanced by the mother did not directly pertain to a custody determination made
within this proceeding.</span></a><span style="mso-bookmark: _Toc108596744;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of Andreija N., 2022 WL 1786662 (3d Dept.,2022) Respondent and Tiffany
O. (mother) were the parents of a child (born in 2012). In July 2018, the
petitioner commenced this proceeding alleging that respondent had abused,
severely abused and repeatedly abused the child by committing sex offenses
against her. The petition also alleged that respondent neglected the child by
threatening to harm the mother and others, purportedly causing the child to
experience fear and emotional distress. Family Court determined that petitioner
failed to meet its burden to demonstrate that respondent abused or neglected
the child and, dismissed the petition. Petitioner and the mother appealed. The
Appellate Division dismissed the mothers appeal noting that the mother was not
a proper party to this appeal. A nonrespondent parent in a child protective
proceeding has a limited statutory role and narrow rights under Family Ct Act §
1035(d) related to issues of custody: to (1) pursue temporary custody of his or
her child/children during fact-finding; and (2) seek permanent custody during
the dispositional phase. It has been observed that the notice requirements of
that statute are designed to ensure that the nonrespondent parent, often the
noncustodial parent, is notified of the proceedings and allowed to intervene
and be heard on temporary or permanent custody more often as alternative
custodians for a child rather than foster care placements. Family Ct Act §
1035(d) was amended the year after its enactment to clarify the narrow role of
nonrespondent parents,<span style="mso-spacerun: yes;"> </span>limiting their
participation to arguments and hearings at fact-finding insofar as they affect
the temporary custody of the child and to all phases of a dispositional
hearing. Thus, the role of a nonrespondent parent in a Family Ct Act article 10
proceeding has been carefully circumscribed, and the scope of a nonrespondent
parent’s participation on appeal in such a proceeding is therefore similarly
narrow. There is no question that the mother has an interest in the child’s
welfare. However, allowing her to participate with full party status would
significantly expand the intended role of a nonrespondent parent in this type
of proceeding. As the arguments advanced by the mother did not directly pertain
to a custody determination made within this proceeding, her appeal was
dismissed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">June 1,
2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596745"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The court </span></a><span style="mso-bookmark: _Toc108596745;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">i</span></span><span style="mso-bookmark: _Toc108596745;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">s not required to hold a hearing on this interim fee
application</span></span><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Adler v Adler, --- N.Y.S.3d ----, 2022 WL 1739077,
2022 N.Y. Slip Op. 03468 (1<sup>st</sup> Dept.,2022) the Appellate Division
affirmed an order which awarded the plaintiff wife, pendente lite,
custody-related counsel fees totaling $600,000. It observed that as<span style="mso-spacerun: yes;"> </span>reflected in the legal bills at issue and counsel’s
description of the work to be done imminently, a significant portion of legal
fees were incurred and will be incurred in connection with specific
custody-related matters not addressed in the parties’ prenuptial agreement, and
that could not even have been contemplated by the parties when they executed
the agreement, before the first of their four children was born. These included
disputes over visitation and parenting time, efforts to resolve such disputes
via stipulation, matters concerning the Attorney for the Children and appointed
forensics, therapy issues and communications with the children’s pediatrician,
parenting issues arising from the COVID pandemic, issues surrounding one
child’s graduation, and disputes concerning the children’s activities such as
tennis lessons and art classes. The prenuptial agreement did not address these
matters, and thus the counsel fee waiver did not apply. The court was not
required to hold a hearing on this interim fee application (see Matter of
Balber v. Zealand, 169 AD3d 500 [1st Dept 2019]). The court carefully
considered the bills and the issues, as shown by its reduction of the wife’s
$900,000 interim counsel fee request to $600,000. The husband did not show the
court failed to consider whether the billing was excessive or redundant, or
that it miscalculated the extent to which the fees awarded were, in fact,
custody-related. As the award is subject to reallocation at the end of the
case, a hearing would be premature and an unnecessary expenditure of resources
in an already heavily litigated case.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596746"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">First
Department holds that (1) its </span></a><span style="mso-bookmark: _Toc108596746;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">precedents
support a smaller percentage distribution to the nontitled spouse of the value
of a business created and managed by the titled spouse; (2) Because of the tax
consequence it was appropriate to award plaintiff a smaller distribution of
assets for which defendant will have to sell property awarded to her in
equitable distribution in order to pay him; and (3) appreciation in value of
defendant’s pre-marital business, during the marriage constituted marital property
subject to distribution</span></span><span style="mso-bookmark: _Toc108596746;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> where </span></span><span style="mso-bookmark: _Toc108596746;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">appreciation
was due to defendant’s active efforts and that there was “some nexus” between
plaintiff’s limited indirect contributions as a supportive spouse and active
parent, and the success of defendant’s business. The nontitled spouse is not
required to quantify the connection between the titled spouse’s efforts and the
increase in value of separate property during the marriage “with mathematical,
causative or analytical precision</span></span><span style="mso-bookmark: _Toc108596746;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">.</span></span><span style="mso-bookmark: _Toc108596746;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Culman v
Boesky, --- N.Y.S.3d ----, 2022 WL 1670167, 2022 N.Y. Slip Op. 03440(1<sup>st</sup>
Dept.,2022) the parties appealed from a judgment of divorce, valuing the
subject art work by including the “buyer’s premium,” awarding plaintiff 7.5% of
the appreciation in value of defendant’s business, Art Works Inc., during the
marriage, 10% of the marital value of M&E, LLC, without awarding defendant
a separate property credit, 10% of the marital value of the real property
located in the Chelsea property, 20% of the marital value of the parties’ condominium
in Aspen, Colorado, 20% of the appreciation in the cash surrender value of
defendant’s AXA life insurance policy, 10% of the marital value of defendant’s
personal art collection, and 50% of the remaining assets, including the value
of the parties’ club memberships, vehicles, wine collection, bank accounts, and
investment and retirement funds, directing defendant to pay plaintiff his
equitable share of illiquid assets within four years of judgment at 3%
interest, and awarding plaintiff $320,000 in counsel fees.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Plaintiff commenced this divorce action on January 19,
2016. The parties stipulated that they would identify and evaluate marital
assets as of May 15, 2015. At the time of trial, plaintiff was 51 and defendant
was 52. They met in 2001 and married on June 28, 2003. They had one child born
in 2004.<span style="mso-spacerun: yes;"> </span>At the date of marriage,
plaintiff was employed in the financial industry, and defendant was the owner
of an art gallery, incorporated as Art Works, Inc. (AWI), which she had
established in 1995. Throughout the marriage, the parties paid their living
expenses primarily with defendant’s income, and did so exclusively after 2008,
when plaintiff left his employment. Plaintiff then engaged in several business
ventures, some of which were funded by defendant, but none of which were
remunerative. After 2008, he did not contribute economically, either to
defendant’s business or the parties’ living expenses, except for a deposit of
$200,000 into the AWI account from an inheritance he received in 2011. However,
plaintiff was primarily responsible for managing the payment of the family’s
expenses. Both parties participated in parenting their daughter, with the
assistance of a nanny five days per week. The nanny also accompanied the family
on trips to Aspen and Nantucket. The trial court found that there was “some
evidence” that plaintiff helped care for the child when defendant was traveling
without the child, and on Saturdays from September to June when defendant was
at work, which included taking the child to classes and skiing on Saturdays in
the winter, starting in 2011. Plaintiff took the child to school and activities
when the nanny did not. However, the trial court also found that plaintiff
“engaged in conduct that was potentially detrimental” to the child when defendant
was away on business. Plaintiff attended events with defendant related to her
gallery, but he was not involved with the day-to-day work of defendant’s
business. The trial court found that plaintiff’s contributions to the marriage,
both economic and non-economic, began to diminish beginning in or about 2008,
to the extent that, after 2012 or 2013, “he failed to make any significant
contributions to the marriage.” Plaintiff executed the contract of sale for the
Chelsea property on November 5, 2004, and the closing took place in January
2005. The Chelsea property was owned by an LLC formed for that purpose on
October 28, 2004. Initially, defendant owned 100% of the LLC, but in 2011, she
transferred 20% of it to a trust of which the parties’ daughter is the
beneficiary. While defendant used some of her separate property funds to
acquire the property, she also used some marital funds to pay the costs of the
construction and renovation. In 2007, construction was completed on the
residential portion of the building, which then became the marital residence.
The majority of the Chelsea property was used by the gallery, and the residence
occupied approximately 10% of the building. AWI had a lease with the LLC
pursuant to which it paid rent to the LLC. The parties resided in the
residential portion of the building rent-free.<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>Plaintiff objected<span style="mso-spacerun: yes;"> </span>globally to the trial court’s distribution of
assets on the grounds that he was awarded only 10.2% of the marital estate,
according to his calculations. Plaintiff complained that the overall
distribution of assets to him constitutes a de minimis percentage of the
parties’ total assets. However, equitable distribution does not require equal
distributions. Its<span style="mso-spacerun: yes;"> </span>precedents support a
smaller percentage distribution to the nontitled spouse of the value of a
business created and managed by the titled spouse. In a situation like this,
where the complex marital estate is composed of multiple assets of varying
natures, many of which cannot be distributed in kind, the court must carefully
consider the equitable distribution of each asset based on the applicable
statutory equitable distribution factors, which frequently leads to an unequal
distribution that is nevertheless equitable. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>As defendant’s business was the parties’ largest asset,
the application of the general principle that business assets are generally
less evenly divided than other assets results in a greater overall distribution
in defendant’s favor. Plaintiff failed to account for the tax consequences that
defendant will bear in paying plaintiff his distributive award. In order for
defendant to pay plaintiff its increased award to him of 15% of the marital
portion of AWI, she would have to liquidate approximately 30% of the marital
portion of AWI’s value,. Accordingly, taking into account the tax impact of the
distribution to plaintiff, defendant would retain not 85% of the marital value
of AWI, but closer to 70%. On the other hand, it affirmed the distribution to
plaintiff of 50% of those marital assets that can be distributed in kind
without any tax impact, including the value of the parties’ vehicles, wine
collection, bank accounts, and investment and retirement funds. Because of the
tax consequence it was appropriate to award plaintiff a smaller distribution of
assets for which defendant will have to sell property awarded to her in
equitable distribution in order to pay him.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that<span style="mso-spacerun: yes;"> </span>plaintiff met his burden to show that the
appreciation in value of defendant’s pre-marital business, AWI, during the
marriage constituted marital property subject to distribution. The record,
including defendant’s own testimony, supported the trial court’s determination
that the appreciation was due to defendant’s active efforts and that there was
“some nexus” between plaintiff’s limited indirect contributions as a supportive
spouse and active parent, at least in the early years of the marriage, and the
success of defendant’s business. The nontitled spouse is not required to
quantify the connection between the titled spouse’s efforts and the increase in
value of separate property during the marriage “with mathematical, causative or
analytical precision” (Citing Price v. Price, 69 N.Y.2d 8 (1986) and Hartog v.
Hartog, 85 N.Y.2d 36 (1995)).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division found that an award to plaintiff
of significantly less than half of the marital portion of AWI was justified by
the following facts: defendant started her business years before she met
plaintiff; plaintiff was not involved with defendant’s acquisition or sale of
art; plaintiff’s conduct was at times problematic and even a hindrance to
defendant’s business success; plaintiff’s contributions to the marriage
diminished over time; and defendant would bear substantial tax consequences
when she sells art to pay plaintiff a distributive award (see Domestic
Relations Law § 236[B][5][d][7], [8], [11]). However, the trial court’s
distribution of only 7.5% of the marital appreciation in AWI to plaintiff was
an improvident exercise of discretion, given the court’s findings that
plaintiff made indirect contributions to defendant’s business as a supportive
spouse and parent, at least in the early years of the marriage, and deposited
$200,000 into the AWI account from an inheritance he received in 2011. He also
attended many events with her, and provided occasional assistance, particularly
following Hurricane Sandy. It found that plaintiff’s share of AWI’s
appreciation during the marriage should be 15%, or $3,486,821.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that with respect to M&E,
an entity established during the marriage and partly owned by a trust
benefitting the parties’ daughter, the award of 10% of the marital value to the
plaintiff was an improvident exercise of discretion; instead, it found that his
share should be 15%. Defendant’s role as sole arbiter of the acquisition and
disposition of artwork held by M&E, plaintiff’s lack of any direct
contribution to this asset, and his diminishing indirect contributions as a
spouse and parent over time, as well as the tax consequences to defendant from
selling assets to pay plaintiff’s distributive award justified a relatively
small award to plaintiff of this asset (see Klauer v. Abeliovich, 149 A.D.3d
617 [1st Dept. 2017], supra). However, the trial court found that plaintiff
made indirect contributions as a spouse and parent in the early years of the
marriage. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division further found that defendant was
entitled to a separate property credit for art that was gifted to her, valued
at $991,400, as detailed in tax returns (see Domestic Relations Law §
236B[1][d][1]). The stipulated value of the art held by M&E, taking into
account the buyer’s premium, was $10,529,638. After deducting defendant’s
separate property credit and the 33 1/3% interest of the trust benefitting the
parties’ child, the amount subject to equitable distribution was $6,359,143, of
which plaintiff was entitled to 15%, or $953,871.45.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>For similar reasons, the Appellate Division found that
the award to plaintiff of 10% of the value of defendant’s personal art
collection was an improvident exercise of discretion and that the distribution
to him should be 15%, or $215,812.50, with the buyer’s premium.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="margin-left: 0.5in; text-indent: -0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that<span style="mso-spacerun: yes;"> </span>trial court’s award to plaintiff of only 10%
of the marital value of the Chelsea property, which housed defendant’s art
gallery and the parties’ former marital residence, was an improvident exercise
of discretion. The award did not give sufficient weight to the facts that
marital funds were used to construct, renovate, maintain, and operate the
building and that plaintiff was involved during the construction process. On
the other hand, after 2008, plaintiff ceased to earn an income and therefore
did not contribute financially, and the parties did not pay rent or a mortgage
to live in the marital residence since it was situated in a commercially zoned
space. Considering all of these facts, it found that plaintiff was entitled to
30% of the marital value, or $3,708,233.28.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Similarly, plaintiff was entitled to 40% of the marital
value of the parties’ condominium in Aspen, instead of the 20% awarded by the
trial court. The parties purchased and renovated this property during the
marriage. The record showed that, although plaintiff was not earning income to
contribute financially, he paid the bills associated with the property and
handled the occasional summer rental.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>The Appellate Division held that
trial court providently exercised its discretion in awarding plaintiff 50% of
the value of the parties’ vehicles and the cost of their club membership fees.
Defendant’s use of the cash proceeds from the sale of her separate property art
to help fund these purchases did not render them her separate property, because
those funds were commingled with marital funds in her account and used for the
parties’ joint benefit.(see generally Mahoney-Buntzman v. Buntzman, 12 N.Y.3d
415, 421, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>The
Appellate Division held that the court providently exercised its discretion in
giving defendant four years to pay plaintiff his distributive award of the
non-liquid assets, at 3% postjudgment interest, and 60 days to pay him his
share of liquid assets, given the illiquid nature of the assets to be sold, the
related tax consequences, and the effect of the pandemic on the economy in
general and the art market in particular, of which the trial court took
judicial notice<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The judgment of divorce was modified, on the law and the
facts, to award plaintiff 15% of the marital appreciation of Art Works Inc.,
15% of the marital value of M&E LLC after awarding defendant a separate
property credit of $991,400, 30% of the marital value of the Chelsea property,
40% of the marital value of the condominium in Aspen, Colorado, 0% of the
appreciation in the cash surrender value of defendant’s AXA life insurance
policy, and 15% of the marital value of defendant’s personal art collection,
and otherwise affirmed<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596747"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">E</span></a><span style="mso-bookmark: _Toc108596747;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">vidence of an offer to purchase is generally
inadmissible at trial to show fair market value.</span></span><span style="mso-bookmark: _Toc108596747;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In Lauren S v Alexander
S., --- N.Y.S.3d ----, 2022 WL 1668835, 2022 N.Y. Slip Op. 03443 (1<sup>st</sup>
Dept.,2022) the Appellate Division found that the Supreme Court erred in
imposing a minimum value on the parties Southampton marital property based on a
purchase offer of $20 million rejected by defendant, as evidence of an offer to
purchase is generally inadmissible at trial to show fair market value.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596748"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Relocation
to Ireland permitted wife and young child where</span></a><span style="mso-bookmark: _Toc108596748;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> meaningful extended vacations could compensate for
the loss of regular visitation</span></span><span style="mso-bookmark: _Toc108596748;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Lavery v O’Sullivan, --- N.Y.S.3d ----, 2022 WL
1653929, 2022 N.Y. Slip Op. 03378 (2d Dept.,2022) plaintiff, who was a dual
citizen of the United States and Ireland, and the defendant, who was a citizen
of Ireland, married in 2015, and lived and worked in New York. They hade one
child, who was born in 2016. Both parties had traveled frequently to Ireland to
visit extended family. In October 2019, the plaintiff commenced this action
seeking, inter alia, a judgment of divorce. Supreme Court, inter alia, awarded
the plaintiff sole legal and physical custody of the child and permitted her to
relocate with the child to Ireland. The Appellate Division affirmed. It found
Supreme Court’s determination to be supported by a sound and substantial basis
in the record. “ The Supreme Court found credible the plaintiff’s testimony
that she was the child’s primary caregiver, that the defendant had engaged in
alcohol abuse and subjected the plaintiff to instances of domestic violence and
verbal abuse, and that if she were permitted to relocate with the child to
Ireland, the child’s quality of life would be improved. In Ireland, the
plaintiff and the child could live cost free in a guest house on the maternal
grandparents’ property, the cost of living in the town was less than it is in
New York, where the parties were struggling financially, and in Ireland the
plaintiff had been offered a job as a clerical administrator in a nursing home.
In addition, the plaintiff would have her parents, siblings, and cousins in the
vicinity to offer her support, as well as the defendant’s extended family. The
court properly concluded that, while relocation would disrupt the defendant’s
regular contact with the child, meaningful extended vacations could compensate
for the loss of regular visitation<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596749"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court did not
improvidently exercise its discretion in denying the father’s motion to vacate
the finding of neglect under Family Court Act § 1051(c), as the motion was made
after the disposition and was, therefore, untimely.</span></a><span style="mso-bookmark: _Toc108596749;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of<span style="mso-spacerun: yes;">
</span>Yarelis E. --- N.Y.S.3d ----, 2022 WL 1653962 (Mem), 2022 N.Y. Slip Op.
03385 (2d Dept.,2022) a finding of neglect was entered against the father and
after an order of disposition was issued, the father moved, inter alia,<span style="mso-spacerun: yes;"> </span>pursuant to Family Court Act §§ 1051(c) to
vacate the finding of neglect and to dismiss the petition. Family Court denied
the father’s motion. The Appellate Division affirmed. It held that<span style="mso-spacerun: yes;"> </span>Family Court did not improvidently exercise
its discretion in denying the father’s motion to vacate the finding of neglect
and to dismiss the petition under Family Court Act § 1051(c), as the motion was
made after the disposition and was, therefore, untimely. In any event, the
father failed to demonstrate that the aid of the court was not required (see
Family Ct Act § 1051[c]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">May 25,
2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596750"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Before entering judgment upon
the husband’s default, there should have been an inquiry into whether a
guardian ad litem was necessary where court explicitly acknowledged that the
husband’s absence was likely attributable to his mental health</span></a><span style="mso-bookmark: _Toc108596750;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In
Buck v Buck, --- N.Y.S.3d ----, 2022 WL 1572173 (Mem), 2022 N.Y. Slip Op. 03335
(1<sup>st</sup> Dept.,2022) Judgment was entered in this divorce proceeding
after the husband, pro se, failed to appear for an inquest. At the time of the
inquest, both the wife and Supreme Court were aware that the husband had been
diagnosed with a significant mental health condition, which resulted in
episodes during which the husband was demonstrably unable to care for himself
or otherwise protect his interests. At the conclusion of the inquest, the court
explicitly acknowledged that the husband’s absence was likely attributable to
his mental health. The Appellate Divisoin held that<span style="mso-spacerun: yes;"> </span>before entering judgment upon the husband’s
default, there should have been an inquiry into whether a guardian ad litem was
necessary (see CPLR 1201, 1203)<span style="mso-spacerun: yes;"> </span>Because
there was no inquiry, it vacated the judgment and the matter remanded for further
proceedings, including, if necessary, an inquiry into the husband’s current
capacity. The earlier decision of the court was recalled and vacated. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">May 18, 2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span lang="EN-CA"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Family Court
providently exercised its discretion in granting the father’s motion for an
attorneys’ fees, since it was reasonable for the court to conclude that the
mother’s repetitive motions and other dilatory tactics were undertaken
primarily to delay or prolong the resolution of the litigation</span><span lang="EN-CA" style="color: red;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In the Matter of Aponte v Jagnarain, --- N.Y.S.3d ----,
2022 WL 1481726, 2022 N.Y. Slip Op. 03111 (2d Dept.,2022) the mother moved to
vacate the final order of protection, entered upon her default, and to change
venue from Nassau County to New York County, where the child resided. After
that motion was denied, the mother made a successive motion for the same
relief, and the father cross-moved for an award of attorneys’ fees. Family
Court denied the mother’s motions and granted the father’s cross motion and
awarded him attorneys’ fees of $2,200. The Appellate Divison affirmed. It held
that the mother failed to provide a reasonable excuse for her failure to appear
on the day the hearing was scheduled to resume. The mother had discharged her
attorney on the eve of the continued hearing, and the court had denied her
request for an adjournment, which was a provident exercise of discretion,
particularly since the mother had previously discharged counsel under similar
circumstances. The mother had no reason to believe that her request for an
adjournment had been granted, and despite the court’s numerous attempts to
reach the mother by telephone over the course of two days before proceeding
with the hearing, the mother did not respond to any of the detailed voicemail
messages left by the court for the mother and her sister. It also held that the
Family Court providently exercised its discretion in granting the father’s
cross motion for an award of attorneys’ fees, since it was reasonable for the
court to conclude that the mother’s repetitive motions and other dilatory
tactics were “undertaken primarily to delay or prolong the resolution of the
litigation” (citing 22 NYCRR 130–1.1[c][2]; see Matter of Mancuso, 48 A.D.3d
570, 849 N.Y.S.2d 909; Ofman v. Campos, 12 A.D.3d 581, 582, 788 N.Y.S.2d 115).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span><a name="_Toc108596751">A witness’s testimony in a prior proceeding may be
incorporated into a later proceeding if it was given under oath, referred to
the same subject-matter, and was heard in a tribunal where the other side was
represented and allowed to cross-examine.</a></span><span style="mso-bookmark: _Toc108596751;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter Aponte v Jagnariain, --- N.Y.S.3d ----, 2022 WL 1481731, 2022 N.Y. Slip
Op. 03112 (2d Dept.,2022) the factual and procedural background was set forth in
Matter of Aponte v. Jagnarain, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 WL
1481726 [decided herewith]). There the Family Court conducted a fact-finding
hearing in the family offense proceeding, in which the father alleged that the
mother had committed the family offense of harassment in that she repeatedly
had falsely accused him of sexually abusing the parties’ child, and, upon the
mother’s failure to appear at the hearing, issued a final order of protection
directing the mother to stay away from the child except for supervised parental
access. Thereafter, the Family Court conducted a hearing on the father’s
petition to modify the prior orders of custody and parental access issued in
this matter by limiting the mother’s parental access with the child to supervised
parental access. At the hearing, the court heard testimony from the father, and
incorporated the testimony of a witness who, at the hearing in the family
offense proceeding, had recounted the accusations made by the mother against
the father. In an order dated March 9, 2021, the court, among other things, in
effect, granted the father’s petition to modify the prior orders of custody and
parental access, and directed the mother to stay away from the child, except
for supervised parental access. The Family Court determined that there had been
a change in circumstances sufficient to warrant a modification of parental
access based on evidence that the mother repeatedly made unfounded allegations
that the father had sexually abused the child, and that those accusations
required the child, at the age of four, to be subjected to intrusive physical
examinations. This Appellate Division affirmed. It<span style="mso-spacerun: yes;"> </span>held, inter alia,<span style="mso-spacerun: yes;"> </span>that the Family Court did not err in
incorporating into the record of the custody and parental access proceeding the
testimony of the witness who had testified at the hearing in the family offense
proceeding. A witness’s testimony may be incorporated into a later proceeding
if “it was given under oath, referred to the same subject-matter, and was heard
in a tribunal where the other side was represented and allowed to
cross-examine” (Fleury v. Edwards, 14 N.Y.2d 334, 338–339). Here, the prior
testimony was given under oath and referred to the same subject matter, and the
mother was allowed to cross-examine the witness at the earlier hearing, but
declined to avail herself of that opportunity when she voluntarily absented
herself from that hearing. In addition, the mother had the opportunity to call
the witness to testify at the hearing in the custody and parental access
proceeding, and, if necessary, to request that the court deem her to be a
hostile witness so that the mother could impeach her, but she failed to do so. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596752"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">While an isolated incident
cannot support a finding of harassment under Penal Law § 240.26(3) a pattern of
conduct composed of a series of acts over a period of time, however short,
evidencing a continuity of purpose can support such a finding.</span></a><span style="mso-bookmark: _Toc108596752;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of Breval v Martinez, --- N.Y.S.3d ----, 2022 WL 1481748 (Mem), 2022
N.Y. Slip Op. 03113 (2d Dept.,2022) the<span style="mso-spacerun: yes;">
</span>petitioner filed a family offense petition alleging that the respondent
had committed various family offenses. After a hearing, the court determined,
inter alia, in effect, that the petitioner failed to establish by a fair
preponderance of the evidence the elements of a family offense and, in effect,
denied the petition and dismissed the proceeding. The Appellate Division
affirmed. It observed that as relevant here, a person commits the family
offense of harassment in the second degree when, with intent to harass, annoy,
or alarm another person, he or she ‘engages in a course of conduct or
repeatedly commits acts which alarm or seriously annoy such other person and
which serve no legitimate purpose’ ” (Penal Law § 240.26[3]). While there is no
question that an isolated incident cannot support a finding of harassment, a
pattern of conduct composed of a series of acts over a period of time, however
short, evidencing a continuity of purpose can support such a finding. It held
that the Family Court properly found that the evidence adduced at the hearing
failed to identify more than an isolated incident. The court’s determination
was based on its credibility assessments and supported by the record.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc108596753"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">In a termination of parental
rights proceeding on the ground of abandonment authorized by Social Services
Law § 384–b(4)(b) while a parent’s conduct outside the abandonment period is
not determinative in an abandonment proceeding, it may be relevant to assessing
parental intent.</span></a><span style="mso-bookmark: _Toc108596753;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Grace<span style="mso-spacerun: yes;"> </span>--- N.Y.S.3d ----, 2022 WL 1481401, 2022 N.Y.
Slip Op. 03119 (2d Dept.,2022) the Appellate Division reversed an order which
terminated the mothers parental rights on the ground of abandonment. It
observed that termination of parental rights is authorized by Social Services
Law § 384–b(4)(b). In order to demonstrate that the mother abandoned the
children, the petitioner was required to demonstrate by clear and convincing
evidence that during the six months prior to the petitions being filed, the
mother evinced an intent to forego her parental rights, as manifested by her
failure to visit or communicate with the children or the petitioner although
able to do so and not prevented or discouraged from doing so by the petitioner
(see id. § 384–b[3][g][i]; [4][b]; [5]). It found that the petitioner failed to
establish by clear and convincing evidence that the mother evinced an intent to
forego her parental rights. The record demonstrated that, during the six-month
abandonment period, the mother visited with the children on two occasions, saw
the children on at least one additional occasion at a family gathering,
purchased clothing for the children, spoke with the case worker on the phone
multiple times, and objected to the goal for the children’s placement changing
to a kinship adoption rather than returning the children to the mother. Under
these circumstances, the Family Court should have denied the petitions on the
merits, insofar as asserted against the mother. It<span style="mso-spacerun: yes;"> </span>noted that the record contained testimony
from a case worker that, during family visits subsequent to the filing of the
petitions, the mother’s interactions with the children were “very positive.”
While a parent’s conduct outside the abandonment period is not determinative in
an abandonment proceeding, it may be relevant to assessing parental intent.<span style="mso-no-proof: yes;"><o:p></o:p></span></span></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">May
11, 2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Submission of
the retainer agreement with Mother’s reply papers was not fatal to her<span style="mso-spacerun: yes;"> </span>motion for counsel fees, since the Family
Court Act is clear that an award of<span style="mso-spacerun: yes;">
</span>counsel fees is mandatory</span><span style="color: red;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Bernadette R v Anthony V.L., --- N.Y.S.3d ----, 2022
WL 1462648, 2022 N.Y. Slip Op. 03087 (1<sup>st</sup> Dept.,2022) the Appellate
Division held that Family Court properly concluded that the submission of the
retainer agreement with petitioner mother’s reply papers was not fatal to her
motion for counsel fees, since the Family Court Act is clear that an award of
the counsel fees is mandatory, not discretionary (Family Court Act §§ 454[3];
438[b]). However, the entry of a money judgment when no order directing payment
of counsel fees had been entered was inconsistent with the procedure
established by Family Court Act § 460, since the father was not in default in
payment of an order.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><a name="_Hlk103147631"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">A pendente lite award may be modified where a court awards an
impermissible double shelter allowance resulting from directing the payment of
both a child support award under the Child Support Standards Act and the
carrying costs on the marital residence.<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></a></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk103147631;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk103147631;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk103147631;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Levin v Levin, --- N.Y.S.3d ----, 2022 WL 1414967 (Mem), 2022 N.Y. Slip Op.
03050 (1<sup>st</sup> Dept.,2022) on a motion for pendente lite support Supreme
Court directed plaintiff to pay $4,750 per month for child support, plus 57% of
add-on expenses, $60,000 for defendant’s interim counsel fees, and $6,085 per
month for the majority of carrying costs for the marital home. The Appellate
Division modified the order and remitted<span style="mso-spacerun: yes;">
</span>the matter to Supreme Court to clarify and recalculate the amount of
child support and/or carrying costs for the marital residence. It held
that<span style="mso-spacerun: yes;"> </span>a pendente lite award should only
be modified rarely and the general rule is that an aggrieved party’s remedy for
perceived inequities in a pendente lite award is a speedy trial. However, a
pendente lite award may be modified where a court awards an impermissible
double shelter allowance resulting from directing the payment of both a child
support award under the Child Support Standards Act and the carrying costs on
the marital residence.<span style="mso-spacerun: yes;"> </span>It held that
here, the pendente lite award should be modified as the court directed the
plaintiff to pay both child support as well as the majority of the carrying
costs on the marital residence, resulting in a double shelter allowance. The
court did so even though neither party sought a directive regarding carrying
costs on the marital residence and the court failed to provide any explanation
as to why it was awarding both child support and carrying costs on the marital
residence. It declined to reach the merits of plaintiff’s argument that the
pendente lite award should be modified with respect to plaintiff’s obligation
to pay retroactive child support and defendant’s counsel fees because
plaintiff’s remedy for such perceived inequities is a speedy trial. <o:p></o:p></span></span></b></span></p>
<span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk103147631;"></span>
</b></span><p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt; letter-spacing: -0.15pt;"><span style="font-family: arial;">Improper to direct parties to equally share the costs of
supervised parental access, without evaluating the parties’ economic realities,
including ability to pay and the actual cost of each visit<o:p></o:p></span></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt; letter-spacing: -0.15pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; letter-spacing: -0.15pt;"><span style="mso-tab-count: 1;"> </span>In
Matter of Gray v Tyson --- N.Y.S.3d ----, 2022 WL 1414933, 2022 N.Y. Slip Op.
02998 (2d Dept.,2022)<span style="mso-spacerun: yes;"> </span>the Appellate
Division held that<span style="mso-spacerun: yes;"> </span>the Family Court
should not have directed the parties to equally share the costs of the mother’s
supervised parental access, without evaluating the parties’ economic realities,
including the mother’s ability to pay and the actual cost of each visit. It
remitted the matter to the Family Court, for a hearing to resolve those issues,
and a determination thereafter regarding the parties’ respective shares of the
costs for the mother’s supervised parental access.</span></b><b><span style="color: red; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><a name="_Hlk102557905"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Where life insurance is appropriate, it should be set in an amount
sufficient to prevent financial injury<o:p></o:p></span></span></b></a></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk102557905;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk102557905;"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk102557905;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Shvalb
v Rubinshtein,<span style="mso-spacerun: yes;"> </span>--- N.Y.S.3d ----, 2022
WL 1231633, 2022 N.Y. Slip Op. 02827 (2d Dept.,2022) the parties were married
in 2007 and had two children born in 2010. The Appellate Division observed that
a<span style="mso-spacerun: yes;"> </span>party’s obligation to pay maintenance
and child support terminates upon that party’s death. The death of a payor
spouse, however, may cause financial injury to a former spouse or children who,
but for the payor spouse’s death, would have continued to receive maintenance,
a distributive award, or child support. Accordingly, the legislature has
provided that a court may require a payor spouse to maintain life insurance to
prevent that financial injury (see Domestic Relations Law § 236[B][8][a ).
Thus, where life insurance is appropriate, it should be set in an amount
sufficient to achieve that purpose. Here, the Supreme Court should have
directed the plaintiff to maintain a life insurance policy for the benefit of
the parties’ children until their emancipation. It remitted the matter to the
Supreme Court, for a determination of the amount of life insurance sufficient
to secure the plaintiff’s child support obligations.<o:p></o:p></span></span></b></span></p>
<span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk102557905;"></span>
</b></span><p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 4;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Where a child
justifiably relies on the representations of a man that he is his or her father
with the result that he or she will be harmed by the man’s denial of paternity,
the man may be estopped from making such a denial where it is in the Childs
best interest</span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Mitches- Lewis v. Lewis, --- N.Y.S.3d ----, 2022 WL
1231541, 2022 N.Y. Slip Op. 02787 (2d Dept.,2022) the parties were married on
April 18, 2008. On August 21, 2008, the subject child was born. In August 2018,
the plaintiff commenced this action for a divorce. Thereafter, the plaintiff
moved, inter alia, for an award of interim counsel fees and to direct the
defendant to pay pendente lite child support for the child. The defendant
cross-moved to direct the parties and the child to submit to genetic marker
testing, asserting that he was not the biological father of the child. Supreme
Court, awarded interim counsel fees of $7,000. In a separate order the court
denied the defendant’s cross motion to direct the parties and the child to
submit to genetic marker testing. The Appellate Division affirmed.<span style="mso-spacerun: yes;"> </span>It pointed out that where a child justifiably
relies on the representations of a man that he is his or her father with the
result that he or she will be harmed by the man’s denial of paternity, the man
may be estopped from making such a denial. However, before a party can be
estopped from denying paternity or from obtaining a DNA test that may establish
that he is not the child’s biological parent, the court must be convinced that
applying equitable estoppel is in the child’s best interest’ . Here, the
Supreme Court providently exercised its discretion in determining that the
defendant should be equitably estopped from denying paternity. While the
defendant was not present for the child’s birth because he was on overseas
military duty at the time, the defendant has not refuted the plaintiff’s assertion
that his mother was present for the child’s birth. The defendant was named as
the child’s father on the child’s birth certificate, and the child was given
the defendant’s surname. Although the parties ended their relationship in
September 2008, shortly after the child’s birth, the defendant acknowledged
that he voluntarily provided financial support for the needs of the child for
around nine years prior to the time he first denied paternity in May 2018. The
defendant made no effort to deny his status as the child’s father until after
he received a letter in March or April 2018 from a child support enforcement
office. The defendant also indicated that he received military benefits for the
child since the child’s birth, and provided for health, vision, and dental
insurance for the child. Moreover, the child, who was now 13 years old, had
only ever known the defendant to be his father. Under the circumstances, the
court providently exercised its discretion in determining that it was in the
best interest of the child to apply the doctrine of equitable estoppel.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="Default"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Where agreement
requires appraisal from licensed appraisers, if appraiser does not
substantially comply with the mandatory USPAP standards his appraisal should
not be considered <o:p></o:p></span></span></b></p>
<p class="Default"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="Default"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="Default" style="text-indent: 0.5in;"><span style="font-family: arial;"><b><span style="font-size: 11pt;">In
Martin v Martin </span><!--[if supportFields]><b><span lang=EN-CA
style='font-size:11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><span style="font-size: 11pt;">--- N.Y.S.3d ----, 2022 WL 1243095, 2022 N.Y. Slip Op.
02840 (3D Dept., 2022) the parties agreement provided that "the parties .
. . shall obtain three (3) appraisals, from licensed appraisers, and the
arithmetic mean of these appraisals shall be considered the fair market value
of the premises." In a post-judgment enforcement proceeding the husband
argued that one appraisal had to<span style="mso-spacerun: yes;"> </span>be
disregarded because the appraiser did not comply with the provisions and
standards set forth in the Uniform Standards of Professional Appraisal
Practice. The agreement specifically required appraisals from licensed
appraisers. The Appellate Division pointed out that pursuant to Executive Law
article 6-E, the Board of Real Estate Appraisal adopts regulations establishing
standards for appraisals and prescribing the form and content of appraisal
reports (see Executive Law § 160-d [1] [d]; [2], [3]). Under these regulations,
every appraisal by a certified or licensed real estate appraiser must comply
with the provisions and standards set forth in the Uniform Standards of
Professional Appraisal Practice (hereinafter USPAP) (see 19 NYCRR 1106.1 [a]),
a -4- 532482 </span><span color="windowtext" style="font-size: 11pt;">document
"published by the Appraisal Foundation, which is authorized by the United
States Congress as the source of appraisal standards" (19 NYCRR 1106.1
[b]). Thus, a reasonable implication of the agreement was that the parties, by
specifying that the appraisers be licensed, intended for the appraisers to
comply with appraisal standards mandated for state licensed and certified
appraisers. It noted that th</span><span style="font-size: 11pt;">ere is
a distinction between state certified real estate appraisers and state licensed
real estate appraisers (see e.g., Executive Law §§ 160; 160-a [6] [a], [b];
160-b [1]; 160-h); certified appraisers have met higher training
standards.<span style="mso-spacerun: yes;"> </span>The Appellate Division held
that if it was<span style="mso-spacerun: yes;"> </span>established that
appraiser did not substantially comply with the mandatory USPAP standards (see
19 NYCRR 1106.1 [a]), his appraisal should not be considered as one of the
three appraisals required by the parties' agreement. However, if the court
determines following this hearing that he substantially complied with USPAP
standards in compiling his appraisal report and reaching an opinion on the
value of the property, his appraisal should be considered along with those of
the other two appraisers, and the husband must pay the wife to purchase her
share of equity in the property based upon the mean of those three appraisals.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Although none of
judicial surrender documents expressly prohibit contacting the child, such a
condition is necessarily included by implication in a<span style="mso-spacerun: yes;"> </span>judicial surrender which states that Family
Court informed respondent that the surrender would result in her “giving up all
rights to have custody, visit with, speak with, write or learn about the child,
forever,” unless respondent and the local social services agency agreed upon
different terms.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><o:p></o:p></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In Matter of Riley XX, --- N.Y.S.3d ----, 2022 WL
1243115, 2022 N.Y. Slip Op. 02839 (3d Dept.,2022) the Appellate Division held
that enforcement of the post adoption contract agreement was not<span style="mso-spacerun: yes;"> </span>in the child’s best interests. It found<span style="mso-spacerun: yes;"> </span>a sound and substantial basis in the record
for Family Court’s conclusions that the child’s best interests would be served
by prohibiting respondent from contacting the child and that an order of
protection was necessary to do so. Further, as respondent was attempting to inappropriately
initiate contact with the child and repeatedly posting her pictures in public
spaces despite the stated objections of petitioners, the court did not abuse
its discretion in refusing to enforce the condition of the post-adoption
contact agreement requiring petitioners to provide respondent with pictures and
updates.<span style="mso-spacerun: yes;"> </span>Although none of the documents
expressly prohibited respondent from contacting the child, the Appellate
Division found such a condition is necessarily included by implication in
a<span style="mso-spacerun: yes;"> </span>judicial surrender which states that
Family Court informed respondent that the surrender would result in her “giving
up all rights to have custody, visit with, speak with, write or learn about the
child, forever,” unless respondent and the local social services agency agreed
upon different terms as specified therein. The surrender also stated that it is
subject to conditions contained in an attachment, which notes – under a heading
of post-adoption communication or contact – that respondent “will receive updates
and pictures at least twice per year.” No visitation or other contact with the
child is mentioned. If parties to a contract omit terms – particularly, terms
that are readily found in other, similar contracts — the inescapable conclusion
is that the parties intended the omission”. Thus, by negative implication, the
limited affirmative condition in the agreement indicated that no other type of
contact had been agreed upon. Family Court apparently recognized that an
appropriate method for petitioners to present their concerns about respondent’s
attempts to contact the child would have been by a petition for enforcement of
the post adoption contact agreement, pursuant to Domestic Relations Law § 112–b
(4) (see Social Services Law § 383–c [2][b]). That statutory subdivision
provides that “[a]n order incorporating an agreement regarding [postadoption]
communication or contact ... may be enforced by any party to the agreement or
the attorney for the child by filing a petition in the family court in the
county where the adoption was approved. Such petition shall have annexed to it
a copy of the order approving the agreement regarding communication or contact.
The court shall not enforce an order under this section unless it finds that
the enforcement is in the child’s best interests” (Domestic Relations Law §
112–b [4]). Although petitioners did not directly follow that procedural path,
they nonetheless met the underlying requirements; they filed their motions in
the proper court, attached a copy of the agreement and adoption order, and
clearly stated the relief that they requested. Family Court expressly found
that respondent “had notice of the relief sought, [was] well aware of the
issues, and had the full opportunity to present evidence and argument[s]” at
the hearing. Thus, respondent did not demonstrate prejudice arising from the
manner in which this matter was initiated. Courts are permitted to ignore a
defect in the form of a proceeding, and to convert a motion into a special
proceeding (see CPLR 103[c]; 2001; Family Ct Act § 165[a]). It<span style="mso-spacerun: yes;"> </span>expressly deemed petitioners’ filings to be
an application for enforcement of the postadoption contact agreement.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Where upon
finding of neglect the child was<span style="mso-spacerun: yes;">
</span>“directly placed” with Kaline S it was error to dismiss neglect petition
upon ground child had not been “in the care of an authorized agency for a
period of at least one year prior to [petitioner] filing a permanent neglect
petition.” Direct placement authorized by Family Court fell within the purview
of Social Services Law § 384–b(1)(b)<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Frank Q., --- N.Y.S.3d ----, 2022 WL
1243176, 2022 N.Y. Slip Op. 02843 (3d Dept.,2022) the Appellate Division
reversed an order which dismissed petitioner’s application, in a proceeding
pursuant to Social Services Law § 384–b, to adjudicate the subject child to be
permanently neglected. Respondent was the mother of the subject child (born in
2018). Several months after the child’s birth, petitioner commenced a Family Ct
Act article 10 proceeding alleging that the child was neglected by respondent
and the child’s father. Thereafter, the parties consented to a temporary order
of removal of the child and placement with Kaline S., a suitable person known
to them. By order of Family Court, a permanency hearing was scheduled for June
2019 “if the child remains in foster care or is directly placed pursuant to
[Family Ct Act §§ ] 1017 or 1055.” Thereafter, respondent consented to a
finding of neglect and Family Court issued an order of fact-finding and
disposition in May 2019, which ordered, pursuant to Family Ct Act § 1055, that
the child is “directly placed” with Kaline S. In December 2019, while the child
was still in a direct placement with Kaline S., petitioner commenced this
permanent neglect proceeding seeking to terminate respondent’s parental rights,
alleging that the child had been in the “care of an authorized agency” for a
continuous one-year period. Following a five-day fact-finding hearing, although
Family Court found “overwhelming evidence” of respondent’s neglect, it dismissed
the petition on the ground that the child had not been “in the care of an
authorized agency for a period of at least one year prior to [petitioner]
filing a permanent neglect petition.” Family Court reasoned that, based on the
language in Family Ct Act § 1017(2)(a), there was a clear distinction between a
“direct release to a suitable person” like Kaline S. and a “placement with an
authorized agency” like petitioner. Although the word “care” is not defined by
statute, Family Court held that petitioner’s actions in providing services for
the benefit of the child did not rise to that level, such as to “bathe, feed,
cloth, educate or do any of the things required to care for the child.” Family
Court distinguished this case from Matter of Dale P., 84 N.Y.2d 72, 614
N.Y.S.2d 967, 638 N.E.2d 506 (1994), and noted that the legislative intent of
Social Services Law § 384–b was to prevent children from languishing in the
foster care system, and it was undisputed that the child had never been in
foster care. Petitioner appealed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division found that Family Court’s
interpretation of Social Services Law § 384–b too narrow and calling for a
result that is “unnecessarily circuitous”, and ultimately contrary to the
stated legislative intent. Regarding the phrase “care of an authorized agency,”
courts have consistently held that a direct placement authorized by Family
Court, like the order of fact-finding and disposition issued in May 2019
pursuant to Family Ct Act § 1055, falls within the purview of Social Services
Law § 384–b. In Matter of Dale P., 84 N.Y.2d at 75–76, 78–79, 614 N.Y.S.2d 967,
638 N.E.2d 506, the Court of Appeals rejected the argument that a child had to
be formally placed in foster care, where a finding of abandonment had been made
and a child’s care had been with a suitable person pursuant to Family Ct Act §
1055. Similarly, this Court had rejected the “narrow definitional approach”
adopted by Family Court that a child who was directly placed with a suitable
person was not within the “care of an authorized agency. Other Departments of
the Appellate Division have also embraced the validity of a direct placement to
satisfy Social Services Law § 384–b (see Matter of Hannah D., 292 A.D.2d 867,
867, 740 N.Y.S.2d 537 [4th Dept. 2002] [holding that “we reject the contention
of (the mother) that the proceeding to terminate her parental rights on the
ground of permanent neglect could not be maintained where, as here, the
children had been placed directly with relatives”]; Matter of Anthony Julius
A., 231 A.D.2d 462, 462, 647 N.Y.S.2d 212 [1st Dept. 1996] [finding “no merit
to (the mother’s) contention that her parental rights could not be terminated
unless the child had first been placed in the care of an authorized agency.
Direct placement authorized by the Family Court can also be a predicate for a
termination of parental rights proceeding”]). The Court agreed here<span style="mso-spacerun: yes;"> </span>that the child had been in the care of
petitioner to satisfy the statute. Petitioner evaluated Kaline S., performing a
background check and interview, before ultimately approving her as a suitable
person to care for the child. Although Kaline S. declined a foster care
subsidy, she agreed to comply with monitoring and the requests of petitioner,
and she further submitted to Family Court’s jurisdiction, consenting to
“cooperate with respect to making the child available for court-ordered
visitation with respondent[ ], siblings and others, appointments with the
child’s attorneys and clinicians and other individuals or programs providing services
to the child[ ], [and] visits (including home visits) by the child protective
agency.” The record reflected close involvement and coordination between
petitioner and Kaline S. during the pendency of this matter. Accordingly, it
found that, in further consideration of Social Services Law § 384–b (1)(b),
Family Court erred in dismissing the petition on the basis that the child had
not been in the “care of an authorized agency.”<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">An allegation in
petition that the parent wanted more parenting time with the child so that they
could participate in more activities did not constitute a change in
circumstances warranting a hearing as to whether modification would serve the
child’s best interests.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Joshua KK., v. Jaime.--- N.Y.S.3d ----, 2022
WL 1243133, 2022 N.Y. Slip Op. 02847 (3d Dept.,2022) the Appellate Division
reversed an order granted the fathers petition and awarded the father
additional parenting time, including overnight visits. It held that the father,
as the party seeking modification of a prior custody order, had the threshold
burden of showing a change in circumstances since the entry of that prior order
so as to trigger an examination as to whether modification would serve the
child’s best interests. As a change in circumstances, the father alleged in the
petition that he wanted more parenting time with the child so that they could
participate in more activities. The father likewise testified at the hearing
about the activities that he engaged in with the child during his parenting
time and what he would do with her if given more parenting time.<span style="mso-spacerun: yes;"> </span>Family Court found that a change in
circumstances existed – namely, that the father wanted to have a closer
relationship with the child and the amount of parenting time provided in the January
2019 order was insufficient to develop that relationship. Even crediting the
father’s testimony, the father’s mere dissatisfaction with the amount of
parenting time provided in the January 2019 order and the desire for more time
did not constitute a change in circumstances.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Where transcript
of family offense hearing included in the record on appeal reflected that
counsel posed over 80 questions to respondent’s mother and that the parties and
Family Court could hear the witness’s answer to only four of those questions,
with 77 answers reported as “inaudible” meaningful review was impossible and
new hearing ordered.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Jereline Z v Joseph A, 2022 WL 1243172 (3d
Dept.,2022)<span style="mso-spacerun: yes;"> </span>Family Court issued an order
finding that respondent had committed family offenses and determined that the
appropriate disposition was a one-year order of protection in favor of
petitioner and the child. Respondent appealed from that order, arguing, among
other things, that meaningful review was impossible because the transcript of
the fact-finding hearing omitted potentially significant testimony. The
Appellate Division observed that the hearing was recorded by an electronic
recording system – not a court reporter – and the transcript provided in the
record was prepared over seven months later by a commercial transcription
service. One of the witnesses called at the hearing was respondent’s mother,
who witnessed a November 2019 incident and testified as to what she observed.
Although the transcript of the hearing included in the record on appeal
reflected that counsel posed over 80 questions to respondent’s mother and that
the parties and Family Court could hear her resulting answers, the transcript
provides the witness’s answer to only four of those questions, with 77 answers
reported as “inaudible.” Petitioner suggested that the absence of that
testimony was immaterial, as respondent’s mother testified with regard to a
November 2019 incident and Family Court only found that respondent had
committed family offenses during an April 2020 incident. The Appellate Division
found that it could not assess that argument without the testimony of
respondent’s mother, which therefore constituted “a potentially significant
portion of the transcript” . As the absence of that testimony made meaningful
appellate review an impossibility, it reversed and remitted for a new hearing.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Fathers
visitation with child terminated where evidence established that the child’s
health and safety were compromised while in the father’s custody, and that
continuing risk to her was detrimental to her welfare. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of Jared MM.,<span style="mso-spacerun: yes;"> </span>v. Mark KK., --- N.Y.S.3d ----, 2022 WL
1414524, 2022 N.Y. Slip Op. 03032 (3d Dept.,2022)<span style="mso-spacerun: yes;"> </span>the Appellate Division affirmed an order
which terminated the fathers visitation where<span style="mso-spacerun: yes;">
</span>the father routinely failed to avail himself of the parenting time that
he was afforded, requiring the grandfather (who was awarded custody) and his
wife to distract the child or simply not tell her about possibly seeing the
father so as to avoid her confusion or disappointment when he ultimately failed
to show up. The father was also the only person to testify at the hearing that
he and the child enjoyed a relationship that was in any way beneficial to her.
Most significantly, the credible evidence at the hearing demonstrated, by a
preponderance of the evidence that the child’s health and safety were
compromised while in the father’s custody, and that continuing risk to her was
detrimental to her welfare. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division pointed out in a footnote that as
a consequence of an order which vacated the father’s prior judicial consent to a
private placement adoption because no adoption had taken place it was required
to treat his claim to the child as that of a parent. Contrary to the conclusion
of Family Court the father was not required to himself establish extraordinary
circumstances to proceed on his own petition.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Not every
petition to modify custody is automatically entitled to a hearing, including
where the party seeking the modification fails to make a sufficient evidentiary
showing to warrant a hearing or no hearing is requested and Family Court has
sufficient information to undertake a comprehensive independent review of the
child’s best interests.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In the Matter of Nathan PP.,<span style="mso-spacerun: yes;"> </span>v. ANGELA PP., --- N.Y.S.3d ----, 2022 WL
1414475, 2022 N.Y. Slip Op. 03031 (3d Dept.,2022) the Appellate Division
affirmed Family Court’s order granting the mother’s motion to dismiss the
father amended petition to modify custody. It held that generally, in order to
survive a motion to dismiss, the petitioner is required to establish a change
in circumstances warranting an inquiry into whether the best interests of the
child would be served by modifying the existing custody arrangement. However,
parties to a custody proceeding may, like here, stipulate that either party can
later seek modification of the custody order without demonstrating a change in
circumstances. Despite eliminating that threshold burden of demonstrating a
change in circumstances, a party still show that modification of the underlying
order is necessary to ensure the child’s continued best interests. Although an
evidentiary hearing is generally necessary, not every petition in a Family
Court Act article 6 proceeding is automatically entitled to a hearing,
including where the party seeking the modification fails to make a sufficient
evidentiary showing to warrant a hearing or no hearing is requested and Family
Court has sufficient information to undertake a comprehensive independent
review of the child’s best interests.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">The Appellate
Division cannot treat a document as a notice of appeal when nothing in it
suggests that it was intended to be one<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of
Washington County Department of Social Services on Behalf of Vernon v.
Oudekerk, --- N.Y.S.3d ----, 2022 WL 1414592 (Mem), 2022 N.Y. Slip Op. 03038
(3d Dept.,2022)<span style="mso-spacerun: yes;"> </span>the Appellate Division
pointed out that the power of an appellate court to review a judgment or order
is subject to an appeal being timely taken. An appeal is taken from a Family
Court order by filing an original notice of appeal with the clerk of the family
court in which the order was made and from which the appeal is taken, then
serving that notice upon any adverse party as provided for in CPLR 5515(1) and
upon the child’s attorney, if any, within the time allowed by Family Ct Act §
1113 (Family Ct Act § 1115). Where an appealing party fails to complete both
steps by timely filing a notice of appeal in the proper court and by serving it
on the individuals entitled to notice the Court lacks subject matter
jurisdiction to hear the appeal. The record did not<span style="mso-spacerun: yes;"> </span>contain a notice of appeal, with the father
instead providing a “notice of poor person requesting permission to proceed”
that served the different purposes of requesting poor person relief and the
assignment of counsel in anticipation of an appeal from one or more of the
January 2021 orders. It held that although a mistake, omission, defect or
irregularity in a notice of appeal may be disregarded (CPLR 2001), and it may
deem a notice of appeal to be valid where it is premature or contains an
inaccurate description of the judgment or order appealed from (CPLR 5520[c]),
it cannot treat a document as a notice of appeal when nothing in it suggests
that it was intended to be one. Further, the record gave<span style="mso-spacerun: yes;"> </span>no indication that the document was served
upon petitioner as required for a notice of appeal. As the record was devoid of
proof that a notice of appeal was filed or served in a timely manner, the
appeal was dismissed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="break-after: avoid; mso-pagination: widow-orphan lines-together; page-break-after: avoid; tab-stops: .5in; text-align: justify; text-justify: inter-ideograph;"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">April 27,
2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Parent’s
disrespect for the court’s authority is not a sufficient basis to modify
custody</span></b><b><span style="font-size: 11pt;">. <o:p></o:p></span></b></span></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In<span style="mso-spacerun: yes;"> </span>Matter of
Corcoran v Liebowitz, --- N.Y.S.3d ----, 2022 WL 1160899 (Mem), 2022 N.Y. Slip
Op. 02542 (2d Dept.,2022) the Appellate Division reversed an order which,
without a hearing, granted the mother’s motion to award her sole legal custody
of the children and remitted for a new hearing before a different judge. It
held that in<span style="mso-spacerun: yes;"> </span>order to modify an existing
court-sanctioned custody or parental access agreement, there must be a showing
that there was a sufficient change in circumstances so that modification is
required to protect the best interests of the child. Although a parent seeking
a change of custody is not automatically entitled to a hearing custody
determinations should generally’ be made ‘only after a full and plenary hearing
and inquiry. Where facts material to the best interest analysis, and the
circumstances surrounding such facts, remain in dispute,’ a hearing is
required. The record did not demonstrate the absence of unresolved factual
issues so as to render a hearing unnecessary. The record suggested that the
award of sole legal custody to the mother served more as a punishment to the
father for his misconduct than as an appropriate custody award in the
children’s best interests. While the Family Court’s determination was initially
limited to awarding the mother only decision-making authority as to education
for the parties’ youngest child, the court abruptly awarded sole legal custody
of both children to the mother in response to the father stating that the
court’s decision was “ridiculous” and “demand[ing] we go to trial.” The court
advised the father that his interjections “[c]hanged my mind,” and that “I was
going to give you the option ... to remain a joint custodian, but ... you
didn’t let me even finish my thought.” While the father’s disrespect for the
court’s authority should not be countenanced, this was not a sufficient basis
to modify custody. <o:p></o:p></span></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Direction in parental access order, in effect allowing father to
determine when the<span style="mso-spacerun: yes;"> </span>child can have
parental access time with the mother is improper delegation of authority <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Felgueiras v Cabral --- N.Y.S.3d ----, 2022 WL
1097247, 2022 N.Y. Slip Op. 02410 (2d Dept.,2022) the Appellate Division
vacated that part of an order which after<span style="mso-spacerun: yes;">
</span>modifying custody to award custody to the father and provide the mother
with parental access, directed that in the event that the mother ceases
attending a Personalized Recovery Oriented Services (PROS) program before being
successfully discharged, or has any unsupervised parental access with the child
without prior court approval, parental access shall be immediately suspended.
It held that these provisions did not appear to give the mother the opportunity
to judicially challenge the father’s determinations concerning her compliance with
the Personalized Recovery Oriented Services (PROS) program or whether she had
unsupervised parental access with the child, and, consequently, constituted an
improper delegation of authority by the Family Court to the father to determine
when the child can have parental access time with the mother.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Where the court
possesses information sufficient to afford a comprehensive, independent review,
a hearing pursuant to Family Court Act § 1061is not required<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
the Matter of Sebastian P., --- N.Y.S.3d ----, 2022 WL 1097215 (Mem), 2022 N.Y.
Slip Op. 02415 (2d Dept.,2022) the Appellate Division pointed out<span style="mso-spacerun: yes;"> </span>that pursuant to Family Court Act § 1061, the
Family Court may set aside, modify, or vacate any order issued in the course of
an article 10 proceeding for “good cause shown. This statute expresses the
strong Legislative policy in favor of continuing Family Court jurisdiction over
the child and family so that the court can do what is necessary in the
furtherance of the child’s welfare. The conducting of a hearing under section
1061 is not mandated, but is left entirely to the Family Court’s discretion.
Where the court possesses information sufficient to afford a comprehensive,
independent review, a hearing is not required .The Family Court was not required
to conduct a hearing before determining the mother’s motion pursuant to Family
Court Act § 1061, since the material facts underlying the motion were not in
dispute.”<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">The Court has
the power to impose restrictions on the childs interactions with third parties
during visitation if it is in the child’s best interests to do so<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In Matter of Hall v Velez, --- N.Y.S.3d ----, 2022 WL
1196681 (Mem), 2022 N.Y. Slip Op. 02676 (4<sup>th</sup> Dept., 2022) the
Appellate Division affirmed an order that, among other things, modified a prior
order of custody and visitation by prohibiting any contact between the parties’
children and the mother’s male friend. It observed that Family Court is
‘afforded wide discretion in crafting an appropriate visitation schedule’ ...
and ‘has the power to impose restrictions on [the children’s] interactions with
third parties during visitation if it is in the child[ren]’s best interests to
do so. The evidence in the record established that the mother’s friend engaged
in acts of violence in the presence of the children, repeatedly used drugs with
the mother and, along with the mother, frequently and flagrantly violated the
court’s temporary order that the children not be in his presence. Consequently,
the court properly determined that allowing the mother’s friend to have contact
with the children created an unnecessary risk to their health and well-being.
It concluded that the court’s determination that it is in the children’s best
interests to have no contact with the mother’s friend had a sound and
substantial basis in the record.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Recent
Legislation (new matter underlined)<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Domestic Relations Law 13-b</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<pre><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Laws of 2022, Ch 56,§ 39 amended Domestic Relations Law 13-b to read as follows:<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>§ 13-b. Time within which marriage may be solemnized. A marriage shall<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>not be solemnized within twenty-four hours after<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>issuance<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>marriage<span style="mso-spacerun: yes;"> </span>license, unless authorized by an order of a court of record as<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>hereinafter provided, nor shall it be solemnized after sixty<span style="mso-spacerun: yes;"> </span>days<span style="mso-spacerun: yes;"> </span>from<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>date<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>issuance<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the marriage license unless authorized<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>pursuant to section ten of the <o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>veterans'<span style="mso-spacerun: yes;"> </span>services<span style="mso-spacerun: yes;"> </span>law.<span style="mso-spacerun: yes;"> </span>Every<span style="mso-spacerun: yes;"> </span>license to marry hereafter issued by a<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>town or city clerk, in addition to other requirements specified by<span style="mso-spacerun: yes;"> </span>this<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>chapter, must contain a statement of the day and the hour the license is<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>issued<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>period during which the marriage may be solemnized. It<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>shall be the duty of the clergyman or magistrate performing the marriage<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ceremony, or if the marriage is solemnized by written contract,<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>judge<span style="mso-spacerun: yes;"> </span>before<span style="mso-spacerun: yes;"> </span>whom the contract is acknowledged, to annex to or endorse<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>upon the marriage license the date and hour the marriage is<span style="mso-spacerun: yes;"> </span>solemnized.<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>A<span style="mso-spacerun: yes;"> </span>judge<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>justice<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the supreme court of this state or the county<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>judge of the county in which either party to be married resides, or<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>judge<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>family<span style="mso-spacerun: yes;"> </span>court of such county, if it shall appear from an<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>examination of the license and any other proofs submitted by the parties<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>that one of the parties is in danger of imminent death, or by reason<span style="mso-spacerun: yes;"> </span>of<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>other<span style="mso-spacerun: yes;"> </span>emergency<span style="mso-spacerun: yes;"> </span>public interest will be promoted thereby, or that such<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>delay will work irreparable injury or great hardship upon the<span style="mso-spacerun: yes;"> </span>contract-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ing<span style="mso-spacerun: yes;"> </span>parties, or one of them, may, make an order authorizing the immedi-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ate<span style="mso-spacerun: yes;"> </span>solemnization<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the marriage and upon filing such order with the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>clergyman or magistrate performing the<span style="mso-spacerun: yes;"> </span>marriage<span style="mso-spacerun: yes;"> </span>ceremony,<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>if<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>marriage<span style="mso-spacerun: yes;"> </span>is to be solemnized by written contract, with the judge before<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>whom the contract is acknowledged,<span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;"> </span>clergyman<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>magistrate<span style="mso-spacerun: yes;"> </span>may<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>solemnize<span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;"> </span>marriage, or such judge may take such acknowledgment as<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the case may be, without waiting for such three day period<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>twenty-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>four hour period to elapse. The clergyman, magistrate or judge must file<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;"> </span>order<span style="mso-spacerun: yes;"> </span>with<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>town or city clerk who issued the license within<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>five days after the marriage is solemnized. Such town or city clerk must<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>record and index the order in the book required to be kept by him or her<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>for recording affidavits, statements, consents and licenses, and when so<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>recorded the order shall become a public record<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>available<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>any<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>prosecution<span style="mso-spacerun: yes;"> </span>under this section. A person who shall solemnize a marriage<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>in violation of this section shall be guilty of a misdemeanor<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>upon<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>conviction thereof shall be punished by a fine of fifty dollars for each<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>offense,<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>addition<span style="mso-spacerun: yes;"> </span>thereto,<span style="mso-spacerun: yes;"> </span>his<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>her right to solemnize a<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>marriage shall be suspended for ninety days.<o:p></o:p></span></span></b></pre>
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<p class="MsoNormal"><b><span style="color: black; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Domestic Relations Law § 14-a
(3)(a) </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Laws of 2022, Ch
56, § 3.Amended Domestic Relations Law § 14-a (3)(a) to read as follows</span></b><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;">:<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="color: black;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>a.<span style="mso-spacerun: yes;"> </span>No<span style="mso-spacerun: yes;"> </span>fee<span style="mso-spacerun: yes;"> </span>shall be charged for any certificate when required by the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>United States department<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>veterans<span style="mso-spacerun: yes;"> </span>affairs<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>by<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>department<span style="mso-spacerun: yes;"> </span>of veterans' services of the state of New York to be used in<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>determining the eligibility of any person to participate in the benefits<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>made available by the United States department of veterans affairs or by<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the state of New York.<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></pre><pre style="mso-outline-level: 1;"><span style="font-family: arial;"><b><span style="color: black; mso-themecolor: text1;"><span style="mso-spacerun: yes;"> </span></span></b><b><span style="color: red; font-size: 11pt;">Domestic Relations Law §19(1)<o:p></o:p></span></b></span></pre><pre><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt;"><br />
<span style="mso-spacerun: yes;"> </span></span></b><b><span style="color: red; font-size: 11pt;">Laws of 2022, Ch 56, § 4. amended Domestic Relations Law §19(1)to read as follows:<o:p></o:p></span></b></span></pre><pre><b><span style="color: black; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>1. Each town<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>city<span style="mso-spacerun: yes;"> </span>clerk<span style="mso-spacerun: yes;"> </span>hereby<span style="mso-spacerun: yes;"> </span>empowered<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>issue<span style="mso-spacerun: yes;"> </span>marriage<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>licenses shall keep a book supplied by the state department of health in<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>which<span style="mso-spacerun: yes;"> </span>such clerk shall record and index such information as is required<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>therein, which book shall be kept and preserved as a part of the<span style="mso-spacerun: yes;"> </span>public<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>records<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>his<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>her<span style="mso-spacerun: yes;"> </span>office. Whenever an application is made for a<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>search of such records the city or town clerk, excepting the city<span style="mso-spacerun: yes;"> </span>clerk<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the city of New York, may make such search and furnish a certificate<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of the result to the applicant upon the payment of a fee of five dollars<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>for a search of one year and a further fee of one dollar for the<span style="mso-spacerun: yes;"> </span>second<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>year<span style="mso-spacerun: yes;"> </span>for<span style="mso-spacerun: yes;"> </span>which such search is requested and fifty cents for each addi-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>tional year thereafter, which fees shall be<span style="mso-spacerun: yes;"> </span>paid<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>advance<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>such<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>search.<span style="mso-spacerun: yes;"> </span>Whenever an application is made for a search of such records in<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the city of New York, the city clerk of the city of New<span style="mso-spacerun: yes;"> </span>York<span style="mso-spacerun: yes;"> </span>may<span style="mso-spacerun: yes;"> </span>make<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;"> </span>search<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>furnish<span style="mso-spacerun: yes;"> </span>a certificate of the result to the applicant<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>upon the payment of a fee of five dollars for a search of one year and a<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>further fee of one dollar for<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>second<span style="mso-spacerun: yes;"> </span>year<span style="mso-spacerun: yes;"> </span>for<span style="mso-spacerun: yes;"> </span>which<span style="mso-spacerun: yes;"> </span>search<span style="mso-spacerun: yes;"> </span>is<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>requested and fifty cents each additional year thereafter. Notwithstand-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ing any other provision of this article, no fee shall be charged for any<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>search<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>certificate when required by the United States department of<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>veterans affairs or by the department of<span style="mso-spacerun: yes;"> </span>veterans'<span style="mso-spacerun: yes;"> </span>services<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>state<span style="mso-spacerun: yes;"> </span>of New York to be used in determining the eligibility of<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>any person to participate in the benefits made available by<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>United<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>States<span style="mso-spacerun: yes;"> </span>department<span style="mso-spacerun: yes;"> </span>of veterans affairs or by the state of New York. All<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>such affidavits, statements and consents, immediately upon the taking or<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>receiving of the same by the town or city clerk, shall be<span style="mso-spacerun: yes;"> </span>recorded<span style="mso-spacerun: yes;"> </span>and<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>indexed<span style="mso-spacerun: yes;"> </span>as<span style="mso-spacerun: yes;"> </span>provided<span style="mso-spacerun: yes;"> </span>herein<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>shall<span style="mso-spacerun: yes;"> </span>be public records and open to<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>public inspection whenever the same may be<span style="mso-spacerun: yes;"> </span>necessary<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>required<span style="mso-spacerun: yes;"> </span>for<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>judicial<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>other<span style="mso-spacerun: yes;"> </span>proper<span style="mso-spacerun: yes;"> </span>purposes. At such times as the commissioner<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>shall direct, the said town or city clerk, excepting the city<span style="mso-spacerun: yes;"> </span>clerk<span style="mso-spacerun: yes;"> </span>of<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>city<span style="mso-spacerun: yes;"> </span>of New York, shall file in the office of the state department<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of health the original of each affidavit, statement, consent, order of a<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>justice<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>judge<span style="mso-spacerun: yes;"> </span>authorizing<span style="mso-spacerun: yes;"> </span>immediate<span style="mso-spacerun: yes;"> </span>solemnization<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>marriage,<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>license and certificate, filed with or made before such clerk during the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>preceding<span style="mso-spacerun: yes;"> </span>month.<span style="mso-spacerun: yes;"> </span>Such<span style="mso-spacerun: yes;"> </span>clerk shall not be required to file any of said<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>documents with the state department<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>health<span style="mso-spacerun: yes;"> </span>until<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>license<span style="mso-spacerun: yes;"> </span>is<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>returned<span style="mso-spacerun: yes;"> </span>with<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>certificate showing that the marriage to which they<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>refer has been actually performed.<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>The county clerks of the counties comprising<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>city<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>New<span style="mso-spacerun: yes;"> </span>York<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>shall<span style="mso-spacerun: yes;"> </span>cause<span style="mso-spacerun: yes;"> </span>all<span style="mso-spacerun: yes;"> </span>original<span style="mso-spacerun: yes;"> </span>applications and original licenses with the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>marriage solemnization statements thereon heretofore<span style="mso-spacerun: yes;"> </span>filed<span style="mso-spacerun: yes;"> </span>with<span style="mso-spacerun: yes;"> </span>each,<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>all<span style="mso-spacerun: yes;"> </span>papers and records and binders relating to such original docu-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ments pertaining to marriage licenses issued<span style="mso-spacerun: yes;"> </span>by<span style="mso-spacerun: yes;"> </span>said<span style="mso-spacerun: yes;"> </span>city<span style="mso-spacerun: yes;"> </span>clerk,<span style="mso-spacerun: yes;"> </span>in<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>their<span style="mso-spacerun: yes;"> </span>custody<span style="mso-spacerun: yes;"> </span>and possession to be removed, transferred, and delivered<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>to the borough offices of the city clerk in each of said counties.<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></pre>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Domestic Relations Law §</span><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">20-c</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><br />
Laws of 2022, Ch 57, §1 added Section 20-c to the Domestic Relations Law to
read as follows</span></b><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">:</span></b><b><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>§<span style="mso-spacerun: yes;"> </span>20-c.<span style="mso-spacerun: yes;">
</span>Certification of marriage; new certificate in case of subse-<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>quent
change of name or gender. 1. A new marriage certificate<span style="mso-spacerun: yes;"> </span>shall<span style="mso-spacerun: yes;">
</span>be<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>issued<span style="mso-spacerun: yes;"> </span>by the town or city clerk where the marriage
license and certif-<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>icate
was issued, upon receipt of proper proof of a change<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>name<span style="mso-spacerun: yes;"> </span>or<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>gender
designation. Proper proof shall consist of: (a) a judgment, order<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>decree<span style="mso-spacerun: yes;">
</span>affirming<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;"> </span>change of name or gender designation of
either<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>party
to a marriage; (b) an amended birth<span style="mso-spacerun: yes;"> </span>certificate<span style="mso-spacerun: yes;"> </span>demonstrating<span style="mso-spacerun: yes;">
</span>a<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>change<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>name<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>gender designation; (c) in the case of a
change of<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>gender
designation, a notarized affidavit from the individual<span style="mso-spacerun: yes;"> </span>attesting<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>to
their change of gender designation; or (d) such other proof as may be<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>established
by the commissioner of health.<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>2.<span style="mso-spacerun: yes;"> </span>When<span style="mso-spacerun: yes;"> </span>a
new marriage certificate is made pursuant to this section,<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>the
town or city clerk shall substitute such<span style="mso-spacerun: yes;">
</span>new<span style="mso-spacerun: yes;"> </span>certificate<span style="mso-spacerun: yes;"> </span>for<span style="mso-spacerun: yes;">
</span>the<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>marriage<span style="mso-spacerun: yes;"> </span>certificate<span style="mso-spacerun: yes;">
</span>then<span style="mso-spacerun: yes;"> </span>on<span style="mso-spacerun: yes;"> </span>file,<span style="mso-spacerun: yes;">
</span>if any, and shall send the state<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>commissioner
of health a digital copy of the new marriage certificate in<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>a
format prescribed by the commissioner, with the exception of the<span style="mso-spacerun: yes;"> </span>city<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>clerk<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>New<span style="mso-spacerun: yes;"> </span>York who shall retain their
copy. The town or city clerk<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>shall
make a copy of the new marriage certificate for the<span style="mso-spacerun: yes;"> </span>local<span style="mso-spacerun: yes;">
</span>record<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>hold the contents of the original marriage
certificate confidential<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>along
with all supporting documentation, papers<span style="mso-spacerun: yes;">
</span>and<span style="mso-spacerun: yes;"> </span>copies<span style="mso-spacerun: yes;"> </span>pertaining<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>thereto.<span style="mso-spacerun: yes;"> </span>It shall not be released or otherwise
divulged except by order<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>of
a court of competent jurisdiction.<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>3.
The town or city clerk shall be entitled to a fee<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>ten<span style="mso-spacerun: yes;"> </span>dollars<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>for<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>amendment<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>certified<span style="mso-spacerun: yes;">
</span>copy of any marriage certificate in<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>accordance
with the provisions of this section.<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>4.
The state commissioner of health may, in their<span style="mso-spacerun: yes;">
</span>discretion,<span style="mso-spacerun: yes;"> </span>report<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>attorney<span style="mso-spacerun: yes;"> </span>general<span style="mso-spacerun: yes;"> </span>any<span style="mso-spacerun: yes;">
</span>town or city clerk that, without cause,<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>fails
to issue a new marriage certificate upon receipt of<span style="mso-spacerun: yes;"> </span>proper <span style="mso-spacerun: yes;"> </span>proof<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;">
</span>change<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>name<span style="mso-spacerun: yes;">
</span>or<span style="mso-spacerun: yes;"> </span>gender<span style="mso-spacerun: yes;"> </span>designation in accordance with this<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>section.
The attorney general shall thereupon, in the name of the<span style="mso-spacerun: yes;"> </span>state<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>commissioner
of health or the people of the state, institute such action<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>proceeding<span style="mso-spacerun: yes;">
</span>as<span style="mso-spacerun: yes;"> </span>may<span style="mso-spacerun: yes;"> </span>be necessary to compel the issuance of such
new<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>marriage
certificate. <o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>(§2 of the Act provides that this provision is effective six months <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>After it shall have<span style="mso-spacerun: yes;"> </span>become a
law.)<o:p></o:p></span></span></b></p>
<pre><b><span style="color: black; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></pre><pre style="mso-outline-level: 1;"><span style="font-family: arial;"><b><span style="color: red;"><br />
</span></b><b><span style="color: red; font-size: 11pt;">Family Court Act §302.1(4)<o:p></o:p></span></b></span></pre><pre><b><span style="color: black; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></pre><pre><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Laws of 2022, Ch 56 § 1 amended Family Court Act §302.1 by adding<span style="mso-spacerun: yes;"> </span>a new subdivision 4 to read as follows:<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>4. Where a proceeding had been commenced in the youth part of a<span style="mso-spacerun: yes;"> </span>supe-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>rior court for an act alleged to have been committed prior to his or her<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>eighteenth birthday and then had been removed to family court, the fami-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ly court shall exercise jurisdiction under this article, notwithstanding<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>fact<span style="mso-spacerun: yes;"> </span>that<span style="mso-spacerun: yes;"> </span>the respondent may be over the age of eighteen prior to<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the proceeding having commenced in the family court.<o:p></o:p></span></span></b></pre>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court Act § 302.2<span style="mso-spacerun: yes;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<pre><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Laws of 2022, Ch<span style="mso-spacerun: yes;"> </span>56, § 2 amended Family Court Act § 302.2<span style="mso-spacerun: yes;"> </span>to read as follows:</span></b><b><span style="color: black; font-size: 11pt;"><o:p></o:p></span></b></span></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>§ 302.2. Statute of limitations.<span style="mso-spacerun: yes;"> </span>A<span style="mso-spacerun: yes;"> </span>juvenile<span style="mso-spacerun: yes;"> </span>delinquency<span style="mso-spacerun: yes;"> </span>proceeding<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>must<span style="mso-spacerun: yes;"> </span>be commenced within the period of limitation prescribed in section<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>30.10 of the criminal procedure law or, unless<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>alleged<span style="mso-spacerun: yes;"> </span>act<span style="mso-spacerun: yes;"> </span>is<span style="mso-spacerun: yes;"> </span>a<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>designated<span style="mso-spacerun: yes;"> </span>felony<span style="mso-spacerun: yes;"> </span>as<span style="mso-spacerun: yes;"> </span>defined in subdivision eight of section 301.2 of<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>this part or is an act allegedly committed when the respondent was<span style="mso-spacerun: yes;"> </span>aged<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>sixteen<span style="mso-spacerun: yes;"> </span>years<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>older,<span style="mso-spacerun: yes;"> </span>commenced before the respondent's eighteenth<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>birthday, whichever occurs earlier, provided<span style="mso-spacerun: yes;"> </span>however,<span style="mso-spacerun: yes;"> </span>that<span style="mso-spacerun: yes;"> </span>consistent<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>with<span style="mso-spacerun: yes;"> </span>subdivision<span style="mso-spacerun: yes;"> </span>four<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>section<span style="mso-spacerun: yes;"> </span>302.1 of this part,<span style="mso-spacerun: yes;"> </span>a proceeding<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>commenced for an act allegedly committed when the<span style="mso-spacerun: yes;"> </span>respondent<span style="mso-spacerun: yes;"> </span>was<span style="mso-spacerun: yes;"> </span>aged<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>sixteen<span style="mso-spacerun: yes;"> </span>years<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>older<span style="mso-spacerun: yes;"> </span>shall be considered timely if it is commenced<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>within such period of limitation prescribed<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>section<span style="mso-spacerun: yes;"> </span>30.10<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>criminal<span style="mso-spacerun: yes;"> </span>procedure law or prior to the respondent's twentieth birthday,<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>whichever<span style="mso-spacerun: yes;"> </span>occurs<span style="mso-spacerun: yes;"> </span>earlier,<span style="mso-spacerun: yes;"> </span>regardless<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>whether<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>action<span style="mso-spacerun: yes;"> </span>had<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>originally<span style="mso-spacerun: yes;"> </span>been commenced prior to the respondent's eighteenth birthday<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>in a youth part of a superior court. When the alleged act constitutes<span style="mso-spacerun: yes;"> </span>a<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>designated<span style="mso-spacerun: yes;"> </span>felony<span style="mso-spacerun: yes;"> </span>as<span style="mso-spacerun: yes;"> </span>defined in subdivision eight of section 301.2 of<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>this part or is an act allegedly committed when the respondent was<span style="mso-spacerun: yes;"> </span>aged<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>sixteen<span style="mso-spacerun: yes;"> </span>years<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>older, such proceeding must be commenced within such<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>period of limitation or<span style="mso-spacerun: yes;"> </span>before<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>respondent's<span style="mso-spacerun: yes;"> </span>twentieth<span style="mso-spacerun: yes;"> </span>birthday,<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>whichever occurs earlier.<o:p></o:p></span></span></b></pre>
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<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court Act</span><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> §309.1<br style="mso-special-character: line-break;" />
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<pre><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Laws of 2022, Ch 56, §<span style="mso-spacerun: yes;"> </span>3 amended the Family Court Act by adding a new section 309.1 to read as follows</span></b><b><span style="color: blue; font-size: 11pt;">:<o:p></o:p></span></b></span></pre><pre><b><span style="color: blue;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>§ 309.1. Community based<span style="mso-spacerun: yes;"> </span>treatment<span style="mso-spacerun: yes;"> </span>referrals.<span style="mso-spacerun: yes;"> </span>1.<span style="mso-spacerun: yes;"> </span>A<span style="mso-spacerun: yes;"> </span>youth<span style="mso-spacerun: yes;"> </span>who<span style="mso-spacerun: yes;"> </span>is<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>released<span style="mso-spacerun: yes;"> </span>prior <span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>the filing of a petition shall be made aware of and<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>referred to community based organizations<span style="mso-spacerun: yes;"> </span>offering<span style="mso-spacerun: yes;"> </span>counseling,<span style="mso-spacerun: yes;"> </span>treat-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ment,<span style="mso-spacerun: yes;"> </span>employment, educational, or vocational services in which they may<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>voluntarily enroll or participate. Such services shall be separate<span style="mso-spacerun: yes;"> </span>from<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>in addition to any adjustment services provided under section 308.1<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of this part, where applicable.<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>2. The youth shall be advised that the<span style="mso-spacerun: yes;"> </span>service<span style="mso-spacerun: yes;"> </span>referrals<span style="mso-spacerun: yes;"> </span>are<span style="mso-spacerun: yes;"> </span>being<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>made<span style="mso-spacerun: yes;"> </span>as<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;"> </span>resource<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>participation<span style="mso-spacerun: yes;"> </span>in them is voluntary and that<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>refusal to participate will not negatively impact any<span style="mso-spacerun: yes;"> </span>aspect<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>their<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>pending<span style="mso-spacerun: yes;"> </span>case.<span style="mso-spacerun: yes;"> </span>Provided, however, nothing shall preclude the youth from<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>voluntarily providing information, after consulting with their attorney,<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>demonstrating<span style="mso-spacerun: yes;"> </span>successful<span style="mso-spacerun: yes;"> </span>enrollment,<span style="mso-spacerun: yes;"> </span>participation,<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>completion,<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>where<span style="mso-spacerun: yes;"> </span>applicable,<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>any<span style="mso-spacerun: yes;"> </span>such services. The court shall consider any<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>information provided by the youth regarding such<span style="mso-spacerun: yes;"> </span>participation<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>case proceedings including but not limited to dispositional or placement<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>determinations.<span style="mso-spacerun: yes;"> </span>The<span style="mso-spacerun: yes;"> </span>court may require supporting documentation for any<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"> <span style="mso-spacerun: yes;"> </span>such consideration that the youth requests, provided however, that<span style="mso-spacerun: yes;"> </span>such<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>information<span style="mso-spacerun: yes;"> </span>shall<span style="mso-spacerun: yes;"> </span>be maintained as confidential in accordance with any<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>applicable state or federal law.<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>3. No statements made to probation when discussing any service<span style="mso-spacerun: yes;"> </span>refer-<o:p></o:p></span></span></b></pre><pre><b><span style="color: black; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>rals under this section shall be admissible in a fact-finding hearing.<o:p></o:p></span></span></b></pre><pre><b><span style="color: black;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></pre><pre><b><span style="color: black;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>(§ 4 of the Act provides.<span style="mso-spacerun: yes;"> </span>This<span style="mso-spacerun: yes;"> </span>act<span style="mso-spacerun: yes;"> </span>shall take effect immediately;<span style="mso-spacerun: yes;"> </span>provided that section three of this act shall apply to offenses committed<span style="mso-spacerun: yes;"> </span>on<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>after<span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;"> </span>date<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>offenses for which the statute of limitations that was in effect prior to such date has not elapsed as of such date.)<o:p></o:p></span></span></b></pre>
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<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Juvenile Delinquincy Amendments<span style="mso-spacerun: yes;"> </span>(new matter underlined)</span><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><br style="mso-special-character: line-break;" />
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<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">Laws of 2022 Ch 38 a</span></b><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;">pproved February 24,
2022, </span></b><b><span style="color: red; font-size: 11pt;">effective December
29, 2022</span></b><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;">amended<span style="mso-spacerun: yes;"> </span>Chapter
810 of the laws of 2021 by making technical changes related to the law defining
the age in which a youth would be considered a juvenile delinquent. The
amendment takes effect one year after it shall have become a law.<o:p></o:p></span></span></b></p>
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<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Family Court Act § 117 (b) opening paragraph</span><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">: <o:p></o:p></span></span></h1>
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<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>Laws of 2022, Ch 38, Section 1 amended
Family Court Act § 117 (b) opening<span style="mso-spacerun: yes;">
</span>paragraph to read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>For every juvenile delinquency
proceeding under article three<span style="mso-spacerun: yes;"> </span>involv-<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ing<span style="mso-spacerun: yes;">
</span>an<span style="mso-spacerun: yes;"> </span>allegation of an act committed
by a person which, if done by an<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>adult, would be a crime (i) defined in
sections 125.27<span style="mso-spacerun: yes;"> </span>(murder<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>first<span style="mso-spacerun: yes;">
</span>degree); 125.25 (murder in the second degree); 135.25 (kidnapping<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>in the first degree); or 150.20 (arson in
the first degree) of the penal<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>law committed by a person thirteen, fourteen<span style="color: green;">,</span> fifteen<span style="color: green;">, sixteen,<span style="mso-spacerun: yes;"> </span>or</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">seventeen</span><span style="mso-spacerun: yes;"> </span>years<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>age; or such conduct committed
as a sexually moti-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>vated felony, where authorized pursuant to
section 130.91 of<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>penal<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>law;<span style="mso-spacerun: yes;">
</span>(ii)<span style="mso-spacerun: yes;"> </span>defined<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;">
</span>sections<span style="mso-spacerun: yes;"> </span>120.10 (assault in the
first degree);<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>125.20 (manslaughter in the first degree);
130.35<span style="mso-spacerun: yes;"> </span>(rape<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;">
</span>the<span style="mso-spacerun: yes;"> </span>first<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>degree);<span style="mso-spacerun: yes;">
</span>130.50<span style="mso-spacerun: yes;"> </span>(criminal<span style="mso-spacerun: yes;"> </span>sexual<span style="mso-spacerun: yes;">
</span>act<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>first degree); <span style="color: green;">130.70</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">(aggravated sexual
abuse in the first degree);</span> 135.20 (kidnapping in the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>second degree), but only where the abduction
involved the use or<span style="mso-spacerun: yes;"> </span>threat<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of use of deadly physical force; 150.15
(arson in the second degree); or<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>160.15<span style="mso-spacerun: yes;">
</span>(robbery<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>first
degree) of the penal law committed by a<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>person thirteen, fourteen<span style="color: green;">,</span> fifteen<span style="color: green;">, sixteen, or
seventeen</span> years<span style="mso-spacerun: yes;"> </span>of<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>age;<span style="mso-spacerun: yes;">
</span>or<span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;"> </span>conduct<span style="mso-spacerun: yes;">
</span>committed as a sexually motivated felony, where<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>authorized pursuant to section 130.91 of the
penal law; (iii) defined in<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the penal law as an attempt to commit
murder<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>first<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>second<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>degree or kidnapping in the first degree
committed by a person thirteen,<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>fourteen<span style="color: green;">,</span><span style="mso-spacerun: yes;"> </span>fifteen<span style="color: green;">,<span style="mso-spacerun: yes;"> </span>sixteen,<span style="mso-spacerun: yes;">
</span>or<span style="mso-spacerun: yes;"> </span>seventeen</span> years of age;
or such<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>conduct committed as<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;">
</span>sexually<span style="mso-spacerun: yes;"> </span>motivated<span style="mso-spacerun: yes;"> </span>felony,<span style="mso-spacerun: yes;">
</span>where<span style="mso-spacerun: yes;"> </span>authorized<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>pursuant<span style="mso-spacerun: yes;">
</span>to<span style="mso-spacerun: yes;"> </span>section<span style="mso-spacerun: yes;"> </span>130.91<span style="mso-spacerun: yes;">
</span>of the penal law; (iv) defined in section<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>140.30 (burglary in the first degree);
subdivision one of section 140.25<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>(burglary in the second<span style="mso-spacerun: yes;"> </span>degree);<span style="mso-spacerun: yes;">
</span>subdivision <span style="mso-spacerun: yes;"> </span>two<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>section<span style="mso-spacerun: yes;"> </span>160.10<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>(robbery<span style="mso-spacerun: yes;">
</span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>second degree) of the penal law; or section
265.03 of<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the penal law, where such machine gun or
such firearm<span style="mso-spacerun: yes;"> </span>is<span style="mso-spacerun: yes;"> </span>possessed<span style="mso-spacerun: yes;">
</span>on<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>school<span style="mso-spacerun: yes;">
</span>grounds,<span style="mso-spacerun: yes;"> </span>as<span style="mso-spacerun: yes;"> </span>that<span style="mso-spacerun: yes;">
</span>phrase is defined in subdivision fourteen of<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>section 220.00 of the penal law committed
by<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;">
</span>person<span style="mso-spacerun: yes;"> </span>fourteen<span style="mso-spacerun: yes;"> </span>[<s><span style="color: red;">or</span></s>]<span style="color: green;">,</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>fifteen<span style="color: green;">,<span style="mso-spacerun: yes;"> </span>sixteen,<span style="mso-spacerun: yes;">
</span>or seventeen</span> years of age; or such conduct committed<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>as a sexually motivated felony, where<span style="mso-spacerun: yes;"> </span>authorized<span style="mso-spacerun: yes;">
</span>pursuant<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>section<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>130.91<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>the penal law; (v) defined in
section 120.05 (assault in the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>second degree) or 160.10 (robbery in the
second degree) of the penal law<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>committed by a person fourteen<span style="color: green;">,</span><span style="mso-spacerun: yes;"> </span>fifteen<span style="color: green;">,<span style="mso-spacerun: yes;"> </span>sixteen,<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;">
</span>seventeen</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>years<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>age<span style="mso-spacerun: yes;"> </span>but only where there has been a prior finding
by a court <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>that such person has previously committed an
act which, if committed<span style="mso-spacerun: yes;"> </span>by<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>an adult, would be the crime of assault in
the second degree, robbery in<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>second degree or any designated felony act specified in clause (i),<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>(ii)<span style="mso-spacerun: yes;">
</span>or<span style="mso-spacerun: yes;"> </span>(iii) of this subdivision
regardless of the age of such person<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>at the time of the commission of the prior
act; or<span style="mso-spacerun: yes;"> </span>(vi)<span style="mso-spacerun: yes;"> </span>other<span style="mso-spacerun: yes;">
</span>than<span style="mso-spacerun: yes;"> </span>a<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>misdemeanor, committed by a person at least <span style="color: green;">twelve</span> but less than<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">eighteen</span><span style="mso-spacerun: yes;"> </span>years<span style="mso-spacerun: yes;">
</span>of age, but only where there <span style="color: green;">have</span> been<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>two prior findings by the court that such
person has committed<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;"> </span>prior<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>act which, if committed by an adult<span style="color: green;">,</span><span style="mso-spacerun: yes;"> </span>would be a
felony:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: red; font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Family Court Act § 301.2 (1)<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";">Laws
of 2022 Ch 38 §<span style="mso-spacerun: yes;"> </span>2 amended Family Court
Act § 301.2 (1) to read as follows:</span></b><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>1. "Juvenile delinquent"
means a person <span style="color: green;">over</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">seven<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;">
</span>less<span style="mso-spacerun: yes;"> </span>than<span style="mso-spacerun: yes;"> </span>sixteen<span style="mso-spacerun: yes;">
</span>years<span style="mso-spacerun: yes;"> </span>of age, or commencing on
October</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">first, two
thousand eighteen a person over seven and less than seventeen</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">years of age, and
commencing October<span style="mso-spacerun: yes;"> </span>first,<span style="mso-spacerun: yes;"> </span>two<span style="mso-spacerun: yes;">
</span>thousand<span style="mso-spacerun: yes;"> </span>nineteen<span style="mso-spacerun: yes;"> </span>a</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">person<span style="mso-spacerun: yes;"> </span>over<span style="mso-spacerun: yes;">
</span>seven</span><span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>less<span style="mso-spacerun: yes;">
</span>than<span style="mso-spacerun: yes;"> </span>eighteen years of age, who,
having<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>committed an act that would constitute a
crime, or<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;"> </span>violation,<span style="mso-spacerun: yes;">
</span>where<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;">
</span>violation<span style="mso-spacerun: yes;"> </span>is<span style="mso-spacerun: yes;"> </span>alleged to have occurred in the same
transaction or<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>occurrence of the alleged criminal act, if
committed by an adult, (a) is<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>not criminally responsible for such conduct
by reason of infancy, or (b)<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>is the defendant in an action ordered
removed from a criminal<span style="mso-spacerun: yes;"> </span>court<span style="mso-spacerun: yes;"> </span>to<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>family<span style="mso-spacerun: yes;"> </span>court<span style="mso-spacerun: yes;"> </span>pursuant to article seven hundred twenty-five
of the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>criminal procedure law.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Family Court Act § 301.2 (1)</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: red; font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws of 2022 Ch 38 §<span style="mso-spacerun: yes;"> </span>3 amended Family Court Act § 301.2 (1) to
read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="color: black; mso-themecolor: text1;">1. "Juvenile delinquent" means:<o:p></o:p></span></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>(a)(i)<span style="mso-spacerun: yes;"> </span>a person at least twelve
and less than eighteen years of age, having committed an act that would<span style="mso-spacerun: yes;"> </span>constitute<span style="mso-spacerun: yes;">
</span>a<span style="mso-spacerun: yes;"> </span>crime<span style="mso-spacerun: yes;"> </span>if<span style="mso-spacerun: yes;">
</span>committed<span style="mso-spacerun: yes;"> </span>by<span style="mso-spacerun: yes;"> </span>an<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;">adult; or<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>(ii)<span style="mso-spacerun: yes;"> </span>a person over sixteen and
less than seventeen years of age or, a<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>person over sixteen and less than eighteen years of age commencing Octo-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ber
first, two thousand nineteen, having committed an act that<span style="mso-spacerun: yes;"> </span>would<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>constitute<span style="mso-spacerun: yes;"> </span>a violation as defined
by subdivision three of section 10.00<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of
the penal law if committed by<span style="mso-spacerun: yes;"> </span>an<span style="mso-spacerun: yes;"> </span>adult,<span style="mso-spacerun: yes;">
</span>where<span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;"> </span>violation<span style="mso-spacerun: yes;">
</span>is<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>alleged<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>have<span style="mso-spacerun: yes;">
</span>occurred in the same transaction or occurrence of the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>alleged criminal act; or<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>(iii) a person over the age of seven and less than twelve years of age<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>having committed an act that<span style="mso-spacerun: yes;">
</span>would<span style="mso-spacerun: yes;"> </span>constitute<span style="mso-spacerun: yes;"> </span>one<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>following<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>crimes,<span style="mso-spacerun: yes;"> </span>if<span style="mso-spacerun: yes;"> </span>committed<span style="mso-spacerun: yes;">
</span>by an adult: (A) aggravated criminally negligent<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>homicide as defined in section 125.11 of the penal<span style="mso-spacerun: yes;"> </span>law;<span style="mso-spacerun: yes;">
</span>(B)<span style="mso-spacerun: yes;"> </span>vehicular<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>manslaughter<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>second degree as defined in section 125.12 of the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>penal law; (C) vehicular manslaughter in the first degree as
defined<span style="mso-spacerun: yes;"> </span>in<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>section<span style="mso-spacerun: yes;"> </span>125.13<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the
penal law; (D) aggravated vehicular homicide as<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>defined in section 125.14 of the penal<span style="mso-spacerun: yes;">
</span>law;<span style="mso-spacerun: yes;"> </span>(E)<span style="mso-spacerun: yes;"> </span>manslaughter<span style="mso-spacerun: yes;">
</span>in<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>second<span style="mso-spacerun: yes;"> </span>degree<span style="mso-spacerun: yes;"> </span>as<span style="mso-spacerun: yes;">
</span>defined<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>section<span style="mso-spacerun: yes;">
</span>125.15<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the penal law; (F)<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>manslaughter in the first degree as defined in<span style="mso-spacerun: yes;"> </span>section<span style="mso-spacerun: yes;">
</span>125.20<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>penal<span style="mso-spacerun: yes;"> </span>law;<span style="mso-spacerun: yes;"> </span>(G) aggravated manslaughter in the second
degree as defined<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>in
section 125.21 of the penal law; (H) aggravated manslaughter<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>first<span style="mso-spacerun: yes;"> </span>degree<span style="mso-spacerun: yes;"> </span>as defined in section 125.22 of the penal
law; (I) murder<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>in
the second degree as defined in section 125.25 of the penal law;<span style="mso-spacerun: yes;"> </span>(J)<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>aggravated murder as defined in section 125.26 of the penal law; and (K)<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>murder<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>first<span style="mso-spacerun: yes;"> </span>degree as defined in
section 125.27 of the penal<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>law;
and<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>(b) who is:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>(i) not criminally responsible for such conduct by<span style="mso-spacerun: yes;"> </span>reason<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>infan-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>Cy ;
or<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>(ii) the defendant in an action ordered removed from a crimi-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;">
</span>nal<span style="mso-spacerun: yes;"> </span>court to the family court
pursuant to article seven hundred twenty-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>five
of the criminal procedure law.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Family Court Act § 301.2 (8)</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws
of 2022 Ch 38<span style="mso-spacerun: yes;"> </span>§ 4<span style="mso-bidi-font-weight: bold;"> </span><span style="mso-spacerun: yes;"> </span>Amended Family Court Act §
301.2 (8) to read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>8. "Designated felony act"
means an act which, if done<span style="mso-spacerun: yes;"> </span>by<span style="mso-spacerun: yes;"> </span>an<span style="mso-spacerun: yes;">
</span>adult,<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>would<span style="mso-spacerun: yes;">
</span>be<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;"> </span>crime: (i) defined in sections 125.27 (murder
in the first<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>degree); 125.25 (murder in the second
degree); 135.25 (kidnapping in the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>first degree); or 150.20 (arson in the first
degree) of<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>penal<span style="mso-spacerun: yes;">
</span>law<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>committed by a person thirteen, fourteen,
fifteen, sixteen, or seventeen<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>years<span style="mso-spacerun: yes;">
</span>of age; or such conduct committed as a sexually motivated felony,<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>where authorized pursuant to section<span style="mso-spacerun: yes;"> </span>130.91<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>penal<span style="mso-spacerun: yes;">
</span>law;<span style="mso-spacerun: yes;"> </span>(ii)<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>defined<span style="mso-spacerun: yes;">
</span>in<span style="mso-spacerun: yes;"> </span>sections<span style="mso-spacerun: yes;"> </span>120.10<span style="mso-spacerun: yes;">
</span>(assault<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>first<span style="mso-spacerun: yes;"> </span>degree); 125.20<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>(manslaughter in the first degree); 130.35
(rape in the<span style="mso-spacerun: yes;"> </span>first<span style="mso-spacerun: yes;"> </span>degree);<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>130.50<span style="mso-spacerun: yes;">
</span>(criminal<span style="mso-spacerun: yes;"> </span>sexual<span style="mso-spacerun: yes;"> </span>act<span style="mso-spacerun: yes;"> </span>in
the first degree); 130.70 (aggravated<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>sexual abuse in the first degree);<span style="mso-spacerun: yes;"> </span>135.20<span style="mso-spacerun: yes;">
</span>(kidnapping<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>second<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>degree)<span style="mso-spacerun: yes;">
</span>but<span style="mso-spacerun: yes;"> </span>only where the abduction
involved the use or threat of use<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of deadly physical force; 150.15 (arson in
the second degree) or<span style="mso-spacerun: yes;"> </span>160.15<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>(robbery<span style="mso-spacerun: yes;">
</span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>first<span style="mso-spacerun: yes;">
</span>degree) of the penal law committed by a person<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>thirteen, fourteen, fifteen, sixteen, or
seventeen years of age; or such<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>conduct committed as<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;">
</span>sexually<span style="mso-spacerun: yes;"> </span>motivated<span style="mso-spacerun: yes;"> </span>felony,<span style="mso-spacerun: yes;">
</span>where<span style="mso-spacerun: yes;"> </span>authorized<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>pursuant<span style="mso-spacerun: yes;">
</span>to section 130.91 of the penal law; (iii) defined in the penal <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>law as an attempt to commit murder in
the<span style="mso-spacerun: yes;"> </span>first<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;">
</span>second<span style="mso-spacerun: yes;"> </span>degree<span style="mso-spacerun: yes;"> </span>or<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>kidnapping in the first degree committed by
a person thirteen, fourteen,<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>fifteen,<span style="mso-spacerun: yes;">
</span>sixteen,<span style="mso-spacerun: yes;"> </span>or seventeen years of
age; or such conduct committed<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>as<span style="mso-spacerun: yes;">
</span>a<span style="mso-spacerun: yes;"> </span>sexually<span style="mso-spacerun: yes;"> </span>motivated<span style="mso-spacerun: yes;">
</span>felony, where authorized pursuant to section<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>130.91 of the penal law; (iv) defined in
section 140.30 (burglary in the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>first degree); subdivision one of section
140.25 (burglary in the second<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>degree); subdivision two<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>section<span style="mso-spacerun: yes;"> </span>160.10<span style="mso-spacerun: yes;"> </span>(robbery<span style="mso-spacerun: yes;">
</span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>second<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>degree) of the penal law; or section 265.03
of the penal law, where such<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>machine<span style="mso-spacerun: yes;">
</span>gun<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>such<span style="mso-spacerun: yes;">
</span>firearm<span style="mso-spacerun: yes;"> </span>is possessed on school
grounds, as that<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>phrase is defined in subdivision fourteen of
section 220.00 of the penal<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>law committed by a person fourteen<span style="color: green;">,</span> fifteen<span style="color: green;">, sixteen,
or<span style="mso-spacerun: yes;"> </span>seventeen</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>years<span style="mso-spacerun: yes;">
</span>of age; or such conduct committed as a sexually motivated felony,<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>where authorized pursuant to<span style="mso-spacerun: yes;"> </span>section<span style="mso-spacerun: yes;">
</span>130.91<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>penal<span style="mso-spacerun: yes;"> </span>law;<span style="mso-spacerun: yes;"> </span>(v)<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>defined<span style="mso-spacerun: yes;">
</span>in<span style="mso-spacerun: yes;"> </span>section<span style="mso-spacerun: yes;"> </span>120.05<span style="mso-spacerun: yes;">
</span>(assault<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the second degree) or 160.10<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>(robbery in the second degree) of the penal
law committed<span style="mso-spacerun: yes;"> </span>by<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;">
</span>person<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>fourteen,<span style="mso-spacerun: yes;">
</span>fifteen,<span style="mso-spacerun: yes;"> </span>sixteen<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;">
</span>seventeen<span style="mso-spacerun: yes;"> </span>years of age but only
where<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>there has been a prior finding by a court
that such person has previous-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ly committed an act which, if committed by
an adult, would be the<span style="mso-spacerun: yes;"> </span>crime<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;">
</span>assault<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>second degree, robbery in the second degree or any<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>designated felony act specified in paragraph
(i), (ii), or (iii) of this<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>subdivision regardless of the age of such
person<span style="mso-spacerun: yes;"> </span>at<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>time<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>commission<span style="mso-spacerun: yes;">
</span>of the prior act; (vi) other than a misdemeanor committed by<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>a person at least twelve but less than
eighteen years of age,<span style="mso-spacerun: yes;"> </span>but<span style="mso-spacerun: yes;"> </span>only<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>where<span style="mso-spacerun: yes;">
</span>there<span style="mso-spacerun: yes;"> </span>have been two prior
findings by the court that such person<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>has committed a prior <span style="color: green;">act which, if committed by an adult,<span style="mso-spacerun: yes;"> </span>would<span style="mso-spacerun: yes;">
</span>be<span style="mso-spacerun: yes;"> </span>a</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>felony.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Family Court Act §304.1 (3)</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws
of 2022 Ch 38<span style="mso-spacerun: yes;"> </span>§<span style="mso-spacerun: yes;"> </span>5. Amended Family Court Act §304.1 (3) to
read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>3. The detention of a child under <span style="color: green;">ten</span> years<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>age<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>a<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>secure<span style="mso-spacerun: yes;">
</span>detention<span style="mso-spacerun: yes;"> </span>facility<span style="mso-spacerun: yes;"> </span>shall<span style="mso-spacerun: yes;">
</span>not<span style="mso-spacerun: yes;"> </span>be<span style="mso-spacerun: yes;"> </span>directed<span style="mso-spacerun: yes;">
</span>under<span style="mso-spacerun: yes;"> </span>any of the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>provisions of this article.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: red; font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: red; font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Family Court Act §304.1 (3)<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Laws of 2022 Ch 38 §<span style="mso-spacerun: yes;"> </span>6. Amended Family Court Act §304.1 (3)to read
as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>3.<span style="mso-spacerun: yes;">
</span>The<span style="mso-spacerun: yes;"> </span>detention<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>a
child under<span style="mso-spacerun: yes;"> </span><span style="color: green;">thirteen</span>
years of age in a<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>secure detention facility shall not be
directed, <span style="color: green;">unless such child is at</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">least ten years
old and is considered a juvenile delinquent pursuant<span style="mso-spacerun: yes;"> </span>to</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">subparagraph<span style="mso-spacerun: yes;"> </span>(iii) of paragraph (a) of subdivision one of
section 301.2</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">of this article,</span>
nor shall the detention of a child<span style="mso-spacerun: yes;">
</span>adjudicated<span style="mso-spacerun: yes;"> </span>solely<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>for<span style="mso-spacerun: yes;">
</span>an<span style="mso-spacerun: yes;"> </span>act that would constitute a
violation as defined in subdivision<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>three of section 10.00 of the penal law, be
directed under<span style="mso-spacerun: yes;"> </span>any<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>provisions of this article.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Social Services Law §409-a(1)(a) </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"><br />
Laws of 2022 Ch 38 §<span style="mso-spacerun: yes;"> </span>7. Amended Social
Services Law §409-a (1)(a) to read as follows:<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>(a)<span style="mso-spacerun: yes;">
</span>A social services official shall provide preventive services to a<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>child and his or her family, in
accordance<span style="mso-spacerun: yes;"> </span>with<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>family's<span style="mso-spacerun: yes;"> </span>service<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>plan<span style="mso-spacerun: yes;">
</span>as required by section four hundred nine-e of this chapter and the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>social services district's child
welfare<span style="mso-spacerun: yes;"> </span>services<span style="mso-spacerun: yes;"> </span>plan<span style="mso-spacerun: yes;">
</span>submitted<span style="mso-spacerun: yes;"> </span>and<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>approved pursuant to section four hundred
nine-d of this chapter, upon a<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>finding<span style="mso-spacerun: yes;">
</span>by such official that (i) the child will be placed, returned to<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>or continued in foster care unless such
services are provided<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>that<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>it<span style="mso-spacerun: yes;">
</span>is<span style="mso-spacerun: yes;"> </span>reasonable<span style="mso-spacerun: yes;"> </span>to believe that by providing such services
the child<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>will be able to remain with or be returned
to his or her family, and for<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>a former foster care youth under the age of
twenty-one who was previous-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ly placed in the care and custody or
custody<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;"> </span>guardianship<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>local commissioner of social services or
other officer, board or depart-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>ment<span style="mso-spacerun: yes;">
</span>authorized<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>receive<span style="mso-spacerun: yes;">
</span>children<span style="mso-spacerun: yes;"> </span>as<span style="mso-spacerun: yes;"> </span>public<span style="mso-spacerun: yes;">
</span>charges where it is<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>reasonable to believe that by providing such
services the former<span style="mso-spacerun: yes;"> </span>foster<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>care<span style="mso-spacerun: yes;">
</span>youth<span style="mso-spacerun: yes;"> </span>will avoid a return to
foster care or (ii) the child is the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>subject of a petition under article seven of
the family court act or<span style="mso-spacerun: yes;"> </span>by<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>probation<span style="mso-spacerun: yes;"> </span>service,<span style="mso-spacerun: yes;"> </span>to<span style="mso-spacerun: yes;"> </span>be<span style="mso-spacerun: yes;"> </span>at risk of being the subject of such a<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>petition, and the social services official
determines that the child<span style="mso-spacerun: yes;"> </span>is<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>at<span style="mso-spacerun: yes;">
</span>risk<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>placement into foster care or (iii) the child
is under the<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>age of twelve, the child does not fall under
the definition of<span style="mso-spacerun: yes;"> </span>a<span style="mso-spacerun: yes;"> </span>juve-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>nile delinquent pursuant to<span style="mso-spacerun: yes;"> </span><span style="color: green;">subparagraph (iii)
of para-</span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: green;">graph<span style="mso-spacerun: yes;"> </span>(a)</span><span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>subdivision one of section
301.2 of the family court act<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>and but for their age, their behavior would
bring them within the juris-<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>diction of the family court pursuant to<span style="mso-spacerun: yes;"> </span>article<span style="mso-spacerun: yes;">
</span>three<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;">
</span>family<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>court act, and the social services official
determines that the child is<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>at<span style="mso-spacerun: yes;">
</span>risk of placement into foster care. Such finding shall be entered in<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>the child's uniform case record established
and maintained<span style="mso-spacerun: yes;"> </span>pursuant<span style="mso-spacerun: yes;"> </span>to<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>section<span style="mso-spacerun: yes;">
</span>four<span style="mso-spacerun: yes;"> </span>hundred<span style="mso-spacerun: yes;"> </span>nine-f<span style="mso-spacerun: yes;">
</span>of<span style="mso-spacerun: yes;"> </span>this article. The commissioner
shall<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>promulgate regulations to assist social<span style="mso-spacerun: yes;"> </span>services<span style="mso-spacerun: yes;">
</span>officials<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>making<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>determinations<span style="mso-spacerun: yes;"> </span>of eligibility for mandated preventive
services pursuant<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>to this subparagraph.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Laws of 2022 Ch 38 §<span style="mso-spacerun: yes;"> </span>6 </span><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Effective date</span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><b><span style="font-size: 10pt;"><span style="mso-spacerun: yes;"> </span></span></b><b><span style="color: red; font-size: 11pt; mso-fareast-font-family: "Times New Roman";">Laws of 2022 Ch 38 §<span style="mso-spacerun: yes;"> </span>6</span></b><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-spacerun: yes;">
</span>§<span style="mso-spacerun: yes;"> </span>13 provides that the amendments
shall<span style="mso-spacerun: yes;"> </span>take effect on the same date and
in the same manner as a chapter of the laws of 2021 amending the family<span style="mso-spacerun: yes;"> </span>court<span style="mso-spacerun: yes;">
</span>act, the<span style="mso-spacerun: yes;"> </span>social<span style="mso-spacerun: yes;"> </span>services<span style="mso-spacerun: yes;">
</span>law and the executive law relating to raising the lower age of juvenile
delinquency jurisdiction from<span style="mso-spacerun: yes;"> </span>age<span style="mso-spacerun: yes;"> </span>seven<span style="mso-spacerun: yes;">
</span>to<span style="mso-spacerun: yes;"> </span>age twelve<span style="mso-spacerun: yes;"> </span>and<span style="mso-spacerun: yes;">
</span>establishing<span style="mso-spacerun: yes;"> </span>differential<span style="mso-spacerun: yes;"> </span>response<span style="mso-spacerun: yes;">
</span>programs for children under the age of twelve, as proposed in<span style="mso-spacerun: yes;"> </span>legislative<span style="mso-spacerun: yes;">
</span>bills<span style="mso-spacerun: yes;"> </span>numbers<span style="mso-spacerun: yes;"> </span>S.4051-A<span style="mso-spacerun: yes;">
</span>and<span style="mso-spacerun: yes;"> </span>A. 4982-A, takes effect;
provided, however, that the amendments to subparagraph (ii) of paragraph (a) of
subdivision 1 of<span style="mso-spacerun: yes;"> </span>section<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">409-a of the
social services law made by section seven of this act shall<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">not<span style="mso-spacerun: yes;"> </span>affect<span style="mso-spacerun: yes;">
</span>the<span style="mso-spacerun: yes;"> </span>expiration of such
subparagraph and shall be deemed to<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">expire
therewith.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">April 13,
2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><br />
<a name="_Toc100729159">Plaintiff failed to demonstrate that child support
award, based on a $250,000 income cap, was insufficient to meet the children’s “actual
needs” to live an “appropriate lifestyle” as evidence reflected that the
parties lived a comfortable upper-middle-class lifestyle and both had
significant financial resources to support the use of the cap. Awarding
defendant a $291,513.40 credit against future add-on expenses for his
overpayment of child support during the pendency of the matter did not violate
public policy.</a></span><span style="mso-bookmark: _Toc100729159;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Castelloe v Fong, --- N.Y.S.3d ----, 2022 WL 960668,
2022 N.Y. Slip Op. 02190 (1<sup>st</sup> Dept.,2022) the Appellate Division
affirmed an order which, to the extent appealed from as limited by the briefs,
confirmed the Special Referee’s report, awarding plaintiff monthly basic child
support of $3,333.33, and, awarded defendant a child support overpayment credit
of $291,513.40 against his future share of add-on expenses.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>It held that the court providently exercised its
discretion in imputing income to the parties. The Referee properly imputed
income of $250,000 to defendant based on the cash gifts he received from his
parents during the three years preceding the hearing, and omitting earlier
gifts used to purchase his current residence and to pay the parties’ legal
fees. The Referee properly rejected plaintiff’s contention that additional
income should be imputed to defendant based on his earning capacity, given the
evidence demonstrating that the 60–year–old defendant was terminated from his
job before the marriage and had not worked full-time since 2008, three years
before the commencement of this divorce action. Plaintiff presented no expert
testimony to establish defendant’s earning capacity at the time of the hearing,
and there was no evidence that defendant intentionally diminished his income to
avoid his support obligations.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Although plaintiff argued that the Referee relied on an
outdated lifestyle analysis in fashioning a child support award and that the
award does not capture the economic realities of raising now teenaged children,
she failed to demonstrate that the award, based on a $250,000 income cap, was
insufficient to meet the children’s “actual needs” to live an “appropriate
lifestyle” (Matter of Culhane v. Holt, 28 A.D.3d 251, 252, 813 N.Y.S.2d 400
[1st Dept. 2006]. The trial evidence reflected that the parties lived a
comfortable upper-middle-class lifestyle and that both parties had significant
financial resources to support the use of a $250,000 cap.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>It rejected Plaintiff’s argument that awarding defendant
a $291,513.40 credit against future add-on expenses for his overpayment of child
support during the pendency of this matter violated public policy because it
will effectively extinguish his child support obligation. While public policy
forbids offsetting over payments against basic child support, it does not
forbid offsetting against add-on expenses. Given that plaintiff had sufficient
financial resources at her disposal, it found that defendant was entitled to
use any overpayment, retroactive to the agreed-upon date of January 27, 2017,
to offset his share of future add-on expenses.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729160"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Appellate Division rejected
husband claim that<span style="mso-spacerun: yes;"> </span>the wife and her
counsel drove up litigation costs, where the Special Referee and the court
found both parties caused delays and took intransigent positions that prevented
settlement. A Counsel fee award is not based solely on litigation conduct; the
paramount factor is financial need.</span></a><span style="mso-bookmark: _Toc100729160;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"> In
Rennock v Rennock, 2022 WL 960872 (1<sup>st</sup> Dept., 2022) the Appellate
Division found that the husband’s arguments concerning maintenance were
unavailing. The amount and duration of maintenance is a matter committed to the
sound discretion of the trial court and he did<span style="mso-spacerun: yes;">
</span>not show that the award to the wife of $2,500 per onth, with such
payments to cease in July 2022, when she will be age 66 and able to receive
social security benefits, was an abuse of such discretion.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>As to the $2,559 per month in child support, the Special
Referee’s reliance on the husband’s 2014 income, and the inclusion of capital
gains in assessing that year’s income for CSSA purposes, was a provident
exercise of discretion. The Special Referee canvassed his income from other
years and, as its summary of such income shows, the 2014 income was not the
anomaly he claimed it to be. Nor did he show reason to revisit the inclusion of
capital gains in the income calculation.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>It affirmed the $162,500 counsel fee award (Domestic
Relations Law § 237). The husband claimed the wife and her counsel drove up
litigation costs, but the Special Referee and the court found both parties
caused delays and took intransigent positions that prevented settlement.
Further, such award is not based solely on litigation conduct; the paramount
factor is financial need a factor whose application here the husband showed no
reason to revisit.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729161"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The child’s fear and anxiety
was a sound and substantial basis to limit<span style="mso-spacerun: yes;">
</span>parental access with the child to letters, and weekly one-hour telephone
or video sessions as consented to by the child.</span></a><span style="mso-bookmark: _Toc100729161;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Walker v. Sterkowicz-Walker, --- N.Y.S.3d
----, 2022 WL 960668, 2022 N.Y. Slip Op. 02190 (2d Dept.,2022) after two
court-ordered “observation and evaluation” virtual visits between the mother
and the child, which were supervised by two licensed social workers, and upon
supplemental findings, the court awarded the mother parental access with the
child only to the extent of allowing the mother to communicate with the child
through written letters either by regular mail or electronically, and by
speaking with the child weekly by telephone or by Skype, Zoom, or other
electronic video platform for up to one hour, provided that the child consents.
The Appellate Division affirmed. It held that the determination of appropriate
parental access is entrusted to the sound discretion of the Family Court, and
the determination will not be set aside unless it lacks a sound and substantial
basis in the record. Here, a sound and substantial basis existed in the record
to limit her parental access with the child to letters, and weekly one-hour
telephone or video sessions as consented to by the child. The testimony of the
father and the child’s therapist as to the child’s fear and anxiety surrounding
parental access, the social workers’ observation of physical symptoms of that
fear and anxiety in the child, and the therapist’s testimony that visitation
between the mother and the child would be “very damaging” to the child, all
supported limiting parental access to letters, and to weekly one-hour telephone
or video sessions as consented to by the child. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729162"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">The
state issuing a child support order retains continuing, exclusive jurisdiction
over its child support orders so long as an individual contestant continues to
reside in the issuing state. A state may modify the issuing state’s order of
child support only when the issuing state has lost continuing, exclusive
jurisdiction</span></a><span style="mso-bookmark: _Toc100729162;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Salim v Freeman, --- N.Y.S.3d ----, 2022 WL
1020819 (Mem), 2022 N.Y. Slip Op. 02268 (2d Dept.,2022) the mother and the
father were the parents of a child who was born Virginia in 2007. In September
2020, the father commenced a proceeding in New York for child support pursuant
to the Uniform Interstate Family Support Act (UIFSA). The Support Magistrate
issued a temporary order of support directing the mother to pay child support
to the father. The mother moved to dismiss the petition on the ground, among
others, in effect, that the Family Court lacked jurisdiction because there was
a prior child support order that had been issued by a court in Virginia. The
Support Magistrate granted the mother’s motion, dismissed the petition, and
vacated the temporary order of support. Family Court, granted the father’s
objections and reinstated the temporary order of support. The Appellate
Division reversed. It observed that the UIFSA, adopted in New York as 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]). Under the Full Faith and Credit for Child Support Orders Act and
UIFSA, the state issuing a child support order retains continuing, exclusive
jurisdiction over its child support orders so long as an individual contestant
continues to reside in the issuing state. A state may modify the issuing
state’s order of child support only when the issuing state has lost continuing,
exclusive jurisdiction . In this context, a “modification” is defined to mean
“a change in a child support order that affects the amount, scope, or duration
of the order and modifies, replaces, supersedes, or otherwise is made
subsequent to the child support order” (28 USC § 1738B[b][8]). Support for the
parties’ child was previously awarded to the mother in an order issued by a
court within the jurisdiction of Virginia prior to the filing of the father’s
petition. Accordingly, his petition was in the nature of a “modification”
petition, rather than a “de novo” application. Since the father resided in the
Commonwealth of Virginia, that entity retained continuing, exclusive
jurisdiction of its child support order, and New York did not have jurisdiction
to modify it.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729163"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The amount and duration of a
maintenance award will not be disturbed provided that the statutory factors and
the parties’ predivorce standard of living are considered. The court need not
articulate every factor it considers, but it must provide a reasoned analysis
of the factors it ultimately relies upon in awarding or declining to award
maintenance.<span style="mso-spacerun: yes;"> </span>Findings of fact submitted
pursuant to CPLR 4213(a) cannot constitute the decision of the court as
mandated by Domestic Relations Law § 236(B)(5)(g).</span></a><span style="mso-bookmark: _Toc100729163;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<h1 style="line-height: normal;"><span style="font-size: 11pt; text-decoration: none;"><o:p><span style="font-family: arial;"> </span></o:p></span></h1>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729164"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Counsel fees properly denied
where wife failed to support her claim by filing a copy of the retainer
agreement and a detailed affidavit setting forth the charges incurred.</span></a><span style="mso-bookmark: _Toc100729164;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
Louie v Louie, --- N.Y.S.3d ----, 2022 WL 959399, 2022 N.Y. Slip Op. 02172 (3<sup>rd</sup>
Dept.,2022) the Plaintiff (wife) and defendant ( husband) were married in 1975
and had one emancipated child (born in 1976). The parties separated in 2007,
and, in 2019, the wife commenced a divorce action. A bench trial was conducted
to determine the issues of maintenance, equitable distribution and
classification of the assets. Following the trial, Supreme Court adopted the
findings of fact and conclusions of law submitted by the husband and issued a
judgment of divorce. The judgment distributed the marital assets, directed the
sale of certain properties and found that certain financial accounts were the
husband’s separate property, but declined to award the wife maintenance or
counsel fees.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division noted that the amount and duration
of a maintenance award are addressed to the sound discretion of the trial
court, and will not be disturbed provided that the statutory factors and the
parties’ predivorce standard of living are considered. The court need not
articulate every factor it considers, but it must provide a reasoned analysis
of the factors it ultimately relies upon in awarding or declining to award
maintenance.<span style="mso-spacerun: yes;"> </span>Supreme Court wholly
adopted verbatim the husband’s proposed findings of fact and conclusions of
law, without articulating the factors it considered or providing a reasoned
analysis for its rulings on the proposed findings of fact and conclusions of
law. Findings of fact submitted pursuant to CPLR 4213(a) cannot constitute the
decision of the court as mandated by Domestic Relations Law § 236(B)(5)(g).
(Capasso v. Capasso, 119 A.D.2d 268, 269, 506 N.Y.S.2d 686 [1986].<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The trial testimony established that this was a 44–year
marriage and both parties were retired, with the husband having retired in 1999
and the wife in 2016. The proof demonstrates that the wife earned approximately
$31,582 per year and the husband earned approximately $117,000. The wife paid
for a family health insurance plan through her former employer, and the husband
and the wife also have Medicare. The parties’ predivorce standard of living was
very comfortable. Given the lengthy term of the marriage, the significant
disparity between the parties’ incomes and the unlikelihood that the wife will
be able to close that gap despite her receiving additional assets from the
equitable distribution of the marital property, as a majority of the husband’s
income is from his separate property, it found that the husband should pay the
wife monthly maintenance of $2,1391 for a period of 20 years. With regard to
the effective date of the maintenance award, generally, awards are retroactive
to the date an action for divorce is commenced. It found that the wife, who
requested maintenance in both the summons with notice and the complaint, was
entitled to a retroactive award of maintenance to the commencement of the
divorce action.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division affirmed the denial of the wife’s
request for counsel fees. The record failed to demonstrate that the wife
properly supported her claim by filing a copy of the retainer agreement and a detailed
affidavit setting forth the charges incurred (see Domestic Relations Law §
237[a]; 22 NYCRR 1400.3). An award of counsel fees requires that an evidentiary
basis be established as to two elements: the parties’ respective financial
circumstances and the value of the legal services rendered. Although the wife
was the less-monied spouse, the record evidence indicating the amount of
counsel fees that she expended, without more, failed to furnish a meaningful
way to gauge the value of the services rendered.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected the wife’s argument
that<span style="mso-spacerun: yes;"> </span>Supreme Court erred in
characterizing the husband’s funds in his Sterling Bank account and Citibank
account as separate property. The husband testified, without contradiction,
that he inherited funds from his parents and that he placed those funds in an
account in his name only at Sterling Bank. The funds remained in his name, and
the funds were never placed in the wife’s name. As to the Citibank account, the
husband testified that this account was initially in his mother’s name. The
husband’s name was added to the account to assist in paying his mother’s
expenses. The wife’s name was never added to the account. Moreover, the wife
failed to demonstrate that the account was later transmuted into marital
property by commingling the funds.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span><a name="_Toc100729165">The amount and duration of a maintenance award will not be
disturbed provided that the statutory factors and the parties’ predivorce
standard of living are considered. The court need not analyze and apply each
and every factor set forth in the statute, but must provide a reasoned analysis
of the factors it ultimately relies upon in awarding maintenance.</a></span><span style="mso-bookmark: _Toc100729165;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Giulilano v Giuliano,--- N.Y.S.3d ----, 2022 WL
959403, 2022 N.Y. Slip Op. 02160 (3d Dept.,2022) Plaintiff (husband) and
defendant ( wife) were married in 1993 and had three children (born in 1994,
1998 and 2007). In 2015, the husband commenced the divorce action.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected the wife’s argument that
Supreme Court erred in imputing income to her. Income may be imputed based upon
a prior employment experience, as well as such person’s future earning capacity
in light of that party’s educational background. At trial, the wife testified
that she was a registered nurse and that she applied for various full-time
nursing jobs. She had worked part time as a nurse but also taught yoga classes.
The wife explained that she could not work on a full-time basis because of the
needs of the youngest child. The wife’s friend, however, was asked at trial
whether the wife made any comment to her to the effect that returning to
full-time work would hurt her divorce case, to which the friend responded, “I
believe so.” The friend also testified that she did not tell the wife about
nursing opportunities because “[t]here was no interest.” The Appellate Division
held that although the wife argued that Supreme Court improperly relied on the
friend’s testimony in imputing income to her, it was within the province of the
court, as the trier of fact, to credit such testimony. Furthermore, the court
considered that there was no proof indicating that the wife was not capable of
full-time employment as a nurse. In view of the record evidence and taking into
account that the court’s credibility determinations are entitled to deference,
the court providently exercised its discretion in imputing income to the
wife.<span style="mso-spacerun: yes;"> </span>Supreme Court did not err in
imputing income to her in the amount of $58,000. The court reached this $58,000
amount based upon the wife’s capability of full-time work, her testimony
regarding her hourly wage as a nurse and by taking into account a 40–hour work
week. Because the court did not abuse its discretion in its calculation of
imputed income, would not be disturbed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected the wife’s challenge to
Supreme Court’s determination reducing her maintenance from the presumptive
amount to a monthly amount of $450 for a period of three years. The amount and
duration of a maintenance award are addressed to the sound discretion of the
trial court and will not be disturbed provided that the statutory factors and
the parties’ predivorce standard of living are considered. The court need not
analyze and apply each and every factor set forth in the statute, but must
provide a reasoned analysis of the factors it ultimately relies upon in
awarding maintenance. Supreme Court found, and the record confirmed, that the
wife was in good health and was capable of economic independence based on her
work as a registered nurse and a yoga instructor. The court also considered
that the husband paid most of the college expenses for the middle child, as
well as medical costs for the middle and youngest children. The court’s
decision provided a reasoned analysis for deviating from the presumptive maintenance
amount and, therefore, the court’s determination was not disturbed .<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected the wife challenges to
Supreme Court’s determination reducing the presumptive child support amount to
be paid by the husband. The court’s decision reflected that it considered the
husband’s contributions to the college expenses and medical costs of the
children. Having reviewed the record in its entirety, its determination would
not be disturbed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The wife correctly contended that the reduced maintenance
and child support awards should have been retroactively ordered. The matter was
remitted for the purpose of determining the amount of retroactive maintenance
and child support and the amount of credits, if any, to which the husband is
entitled.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The wife took issue with Supreme Court’s determination
awarding her 5% of the value of the husband’s business. The wife relied on her
testimony that she performed tasks for the business and assisted with
administrative and operational matters. The husband, however, offered proof to
the contrary as to the wife’s direct contributions to his business. Presented
with conflicting proof, the court did not credit the wife’s testimony, and no
basis existed to disturb its credibility determination.. As to the wife’s indirect
contributions, the court noted, and the evidence discloses, that the wife cared
for the children and contributed to the overall household income while the
husband worked. Upon review of the record it held that the wife should have
been awarded 15% of the value of the husband’s business<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729166"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">In light of the determination
on appeal that the order was not entered upon respondent’s default,
respondent’s failure to move to vacate the default finding did not preclude his
appeal.</span></a><span style="mso-bookmark: _Toc100729166;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
the Matter of David VV., v. Alison., --- N.Y.S.3d ----, 2022 WL 959420, 2022
N.Y. Slip Op. 02165 (3d Dept.,2022) Petitioner and the attorney for the child
argued that the appeal in this termination of parental rights proceeding had to
be dismissed because the challenged order was entered upon respondent’s
default. The Appellate Division disagreed and<span style="mso-spacerun: yes;">
</span>found that under the circumstances Family Court abused its discretion in
holding respondent to be in default. The order was reversed and the matter
remitted for a new fact-finding hearing on the issue of abandonment. In light
of the determination that the order was not entered upon respondent’s default,
respondent’s failure to move to vacate the default finding did not preclude his
appeal.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729167"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A
modification of maintenance pursuant to Domestic Relations Law §
236(B)(9)(b)(1) is generally not appropriate where one spouse has the present
ability to obtain higher paying employment, but brings about a reversal of
financial condition by the spouse’s own actions or inactions.</span></a><span style="mso-bookmark: _Toc100729167;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Hickman v Hickman, --- N.Y.S.3d ----, 2022 WL 1037788,
2022 N.Y. Slip Op. 02318 (3d Dept.,2022) Plaintiff ( wife) and defendant
(husband) were divorced in 2012. The parties’ divorce judgment required the
husband to pay the wife spousal maintenance of $50,000 per year (or
approximately $4,167 per month) for five years, as well as child support for
their two children. In May 2020, after the maintenance obligation had
terminated, the wife moved to modify the maintenance provision of the divorce
judgment pursuant to Domestic Relations Law § 236(B)(9)(b)(1), seeking spousal
maintenance of $7,000 per month. Supreme Court denied the wife’s motion. The
Appellate Division affirmed. It pointed out that<span style="mso-spacerun: yes;"> </span>Domestic Relations Law § 236(B)(9)(b)(1)
provides that a court in a matrimonial action may modify a maintenance award of
any prior order or judgment made after trial “upon a showing of the payee’s
inability to be self-supporting or upon a showing of a substantial change in
circumstance, including financial hardship.” The party seeking the modification
of a maintenance award has the burden of establishing the existence of the
change in circumstance that warrants the modification”. Determining whether a
substantial change has occurred and the extent of relief occasioned by such a
change are matters addressed to the discretion of the trial court, with each
case turning on its particular facts. A modification is generally not
appropriate where one spouse has the present ability to obtain higher paying
employment, but brings about a reversal of financial condition by the spouse’s
own actions or inactions. A hearing is not required on a maintenance
modification application unless the movant makes a prima facie showing of
entitlement to a modification and demonstrates the existence of genuine issues
of fact regarding a substantial change in circumstance. In the divorce judgment
and the decision upon which it was based, Supreme Court imputed annual income
of $55,000 to the wife. The court acknowledged that she had ceased full-time
employment to be a mother and homemaker for 14 years during the marriage.
However, the court noted, based on her education and prior work experience,
that she was qualified and capable of obtaining employment and, although it
might take some time, she could work toward self-sufficiency during the
five-year duration of ordered maintenance payments. The court also noted that
the wife had been aware of the divorce proceedings and her need to support
herself for several years at that time, but had not yet taken steps leading to
her return to self-sufficiency, had not engaged in serious efforts to find
employment, and appeared to lack interest in returning to the workforce.
Accepting as true the wife’s assertions in her application for modification,
she applied for more than 100 jobs over 18 months, finally being offered one
position with an annual salary of $40,000. After 15 months in that position,
which had work hours from 9:00 a.m. to 5:00 p.m., she quit her job because she
felt that she needed more flexibility to transport her children, then both
teenagers, to after school activities. The wife then purchased a nonmedical
home care business, despite having no experience in that field. The business
experienced net losses each year, and she lacked capital to advertise and
market its services. The wife avers that she unsuccessfully continued to look
for jobs and tried to sell the business. Due to the expenses of the marital
residence, the wife agreed to sell it earlier than required by the divorce
judgment. Using some of the money from that sale along with a large mortgage,
she purchased a spacious, expensive house, just five months before the
maintenance payments were scheduled to cease.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that although the record demonstrated
that the husband’s income increased significantly after the divorce, that is
not determinative and does not necessarily present a substantial change in
circumstance warranting a modification to increase maintenance. The wife was
not required to show a change in circumstance that was unexpected, but she was
required to establish a substantial change in circumstance or an inability to
support herself. The record supported the conclusion that the wife’s behavior
was at least partially responsible for her current financial situation,
considering that she voluntarily left her job, purchased a house beyond her
means and, contrary to advice from professionals, purchased a business that
resulted in no profit. Despite some proof of her 18–month job search before
gaining employment, the wife did not demonstrate that she was unable to find
employment after quitting that job or discovering that her business was
unprofitable. As the wife failed to make a prima facie showing of an inability
to be self-supporting or a substantial change in circumstance that would
warrant reinstating spousal maintenance, she was not entitled to a hearing on
her application.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729168"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Although
only 1 month passed between the custody<span style="mso-spacerun: yes;">
</span>order and the father’s modification petition, the mother’s attempted
suicide and her being pushed down a flight of stairs by her boyfriend while the
child was in her care, reflected a change in circumstances that warranted a
review of the custodial arrangement</span></a><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Devin W, --- N.Y.S.3d ----, 2022 WL 1037792,
2022 N.Y. Slip Op. 02316 (3d Dept.,2022) Petitioner ( father) and respondent (
mother) were the parents of a daughter (born in 2016). Pursuant to an order
entered upon consent in January 2019, the parties were awarded joint custody of
the child, with the child being placed with the mother during the week and with
the father from 6:00 p.m. on Friday to 7:00 p.m. on Monday. In February 2019,
the father filed a modification petition seeking sole physical custody of the
child due to the mother’s mental and physical health issues. Family Court
issued a December 2019 decision finding that the mother’s January 2019 suicide
attempt and her involvement in a domestic violence incident constituted a
change in circumstances that warranted revisiting the custodial arrangement.
The court further found that the best interests of the child lie in awarding
the father physical placement of the child and the mother supervised
visitation. Family Court contemporaneously issued an order awarding the parties
joint legal custody of the child, the father primary physical placement and the
mother supervised visitation on alternating weekends, a week in the summer and
as agreed by the parties. The Appellate Division affirmed. It held that
although little time had passed between the stipulation that led to the January
2019 order and the father’s February 2019 modification petition, the mother’s
own testimony reflected that, shortly after the parties had agreed to the terms
of that order, she attempted suicide and was pushed down a flight of stairs by
her then-boyfriend during a domestic dispute that occurred while the child was
in her care, those developments reflected a change in circumstances that
warranted a review of what custodial arrangement would be in the child’s best interests.
Although the inquiry into whether a “change in circumstances has occurred
should be limited to occurrences since the date of the prior custody order, a
best interests inquiry is broader and may include other facts that give the
court a view of the totality of the circumstances and family dynamics,
including proof that relates to either party’s fitness as a parent”<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">March 30,
2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="mso-bidi-font-weight: bold;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729169"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">C</span></a><span style="mso-bookmark: _Toc100729169;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">onfidential mental health records may only be
disclosed upon a finding that the interests of justice significantly outweigh
the need for confidentiality</span></span><span style="mso-bookmark: _Toc100729169;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">. Under</span></span><span style="mso-bookmark: _Toc100729169;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> Family Court
Act § 1038(d) the court must conduct a balancing test to weigh the need of the
moving party for the discovery against any potential harm to the child</span></span><span style="mso-bookmark: _Toc100729169;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Matter of
Briany T., 202 A.D.3d 408, 161 N.Y.S.3d 79, 2022 N.Y. Slip Op. 00629 (1<sup>st</sup>
Dept.,2022) Respondent sought<span style="mso-spacerun: yes;"> </span>disclosure
of records relating to the prior and current mental health treatment of the
13–year–old child who reported that he sexually abused her, claiming that those
records are material and necessary to his defense that the child is fabricating
her allegations. The Appellate Division held that confidential mental health
records may only be disclosed upon a finding by a court that “the interests of
justice significantly outweigh the need for confidentiality” (Mental Hygiene
Law § 33.13[c][1]). Pursuant to Family Court Act § 1038(d), the court must
conduct a balancing test to weigh “the need of the [moving] party for the
discovery to assist in the preparation of the case” against “any potential harm
to the child [arising] from the discovery”.<span style="mso-spacerun: yes;">
</span>It held that although a close question, given respondent’s need to
prepare his defense, his right to impeach the child’s credibility as she was likely
to be a witness, and the child’s diminished interest in the confidentiality of
older records from an institution that was not currently providing services to
her, an in camera review of the NYP records was warranted (Matter of Dean T.,
Jr., 117 A.D.3d at 492, 985 N.Y.S.2d 518). It remanded the matter to the Family
Court to review the child’s mental health records from NYP in camera to
determine whether there was any information in those records that tended to
support respondent’s defense that the child had previously made a false
allegation when she was approximately four years old and had<span style="mso-spacerun: yes;"> </span>underlying mental health issues relating to
the earlier disclosure.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729170"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Default
judgment of divorce vacated where husband’s absence was likely attributable to
his mental health and there should have been an inquiry into whether a guardian
ad litem was necessary.</span></a><span style="mso-bookmark: _Toc100729170;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
Richard v Buck, --- N.Y.S.3d ----, 2022 WL 903740 (1<sup>st</sup> Dept.,2022)
the Appellate Division reversed a Judgment that was entered in this divorce
proceeding after the husband, pro se, failed to appear for an inquest. At the
time of the inquest, both the wife and supreme court were aware that the
husband had been diagnosed with a significant mental health condition, which
resulted in episodes during which the husband was demonstrably unable to care
for himself or otherwise protect his interests. At the conclusion of the
inquest, the court explicitly acknowledged that the husband’s absence was
likely attributable to his mental health. Thus, before entering judgment upon
the husband’s default, there should have been an inquiry into whether a
guardian ad litem was necessary. Because there was no inquiry, the judgment was
vacated and the matter remanded for further proceedings, including, if
necessary, an inquiry into the husband’s current capacity.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729171"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">P</span></a><span style="mso-bookmark: _Toc100729171;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">endente lite maintenance</span></span><span style="mso-bookmark: _Toc100729171;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> properly denied </span></span><span style="mso-bookmark: _Toc100729171;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>without
prejudice</span></span><span style="mso-bookmark: _Toc100729171;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> here wife </span></span><span style="mso-bookmark: _Toc100729171;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>failed to </span></span><span style="mso-bookmark: _Toc100729171;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">submit </span></span><span style="mso-bookmark: _Toc100729171;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>statement of
net worth</span></span><span style="mso-bookmark: _Toc100729171;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Yin v.<span style="mso-spacerun: yes;"> </span>Qiao,
--- N.Y.S.3d ----, 2022 WL 791392 (Mem), 2022 N.Y. Slip Op. 01839 (2d
Dept.,2022) the Appellate Division held, among other things, that<span style="mso-spacerun: yes;"> </span>the Supreme Court properly denied that branch
of plaintiff’s motion which was for an award of pendente lite maintenance,
without prejudice, because she failed to attach a statement of net worth to her
motion papers (see 22 NYCRR 202.16[k][2]; Barton v. Barton, 137 A.D.3d 723,
724, 27 N.Y.S.3d 572).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729172"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Supreme Court improvidently
exercised its discretion in awarding the defendant</span></a><span style="mso-bookmark: _Toc100729172;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> husband, who was the monied
spouse,</span></span><span style="mso-bookmark: _Toc100729172;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> attorney’s
fees</span></span><span style="mso-bookmark: _Toc100729172;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> where </span></span><span style="mso-bookmark: _Toc100729172;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">the
plaintiff’s motion was not so lacking in merit as to justify such an award.</span></span><span style="mso-bookmark: _Toc100729172;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> Award of </span></span><span style="mso-bookmark: _Toc100729172;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">prospective sanctions on the plaintiff in future
litigation</span></span><span style="mso-bookmark: _Toc100729172;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> improvident exercise of discretion.</span></span><span style="mso-bookmark: _Toc100729172;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Assad v Assad, 200 A.D.3d 831, 161 N.Y.S.3d 92, 2021 N.Y. Slip Op. 06978 (2d
Dept., 2021) the parties were divorced by judgment dated September 13, 2016,
which incorporated, but did not merge, a stipulation of settlement of the
parties dated January 29, 2016. Pursuant to the stipulation of settlement, the
parties shared joint legal custody of their three children, with primary
residential custody to the plaintiff and a parental access schedule for the
defendant. The stipulation also provided that the plaintiff was prohibited from
relocating with the children outside of New York City without prior written
consent of the defendant, or court order. On June 16, 2020, the plaintiff
moved, inter alia, to modify the stipulation of settlement to permit her to relocate
with the children to Texas, or in the alternative, to upwardly modify the
defendant’s child support obligation and award her sole custody of the
children. The defendant cross-moved for an award of attorney’s fees. In an
order entered January 4, 2021, the Supreme Court, inter alia, denied, without a
hearing, those branches of the plaintiff’s motion, granted that branch of the
defendant’s cross motion to the extent of awarding him attorney’s fees of
$5,000, and, sua sponte, enjoined the plaintiff, absent an emergency, from
instituting further actions or filing motions without first obtaining written
leave of the court, and directed that if the plaintiff attempted to re-litigate
the same issues in the future, sanctions would be imposed against her for the
defendant’s full costs and fees of defending the action. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that Supreme Court properly
denied the plaintiff’s motion to permit her to relocate with the children to
Texas or to award her sole custody of the children. However, the Supreme Court
erred in summarily denying the plaintiff’s motion which was to modify the
stipulation of settlement to upwardly modify the defendant’s child support
obligation. Since the parties did not opt out of the provisions of Domestic
Relations Law § 236(B)(9)(b)(2)(ii), the plaintiff was not obligated to
demonstrate a substantial change in circumstances where, as here, she
demonstrated that three years had passed since the last order concerning child
support was entered Moreover, the plaintiff also demonstrated that the
defendant’s gross income had increased by 15% or more during that time.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division also held that a<span style="mso-spacerun: yes;"> </span>court has the authority to award an
attorney’s fee in custody proceedings when warranted under the circumstances of
the case (see Domestic Relations Law § 237[b]). Here, the Supreme Court
improvidently exercised its discretion in awarding the defendant attorney’s
fees. The plaintiff’s motion did not attempt to re-litigate previously waived
claims, and it represented the plaintiff’s first request for permission to
relocate, sole custody of the children, and an upward modification of the
defendant’s child support obligation since the judgment of divorce was entered
in 2016. Moreover, the defendant was<span style="mso-spacerun: yes;"> </span>the
monied party and the plaintiff’s motion “was not so lacking in merit as to
justify such an award.” <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>For similar reasons, the Supreme Court improvidently
exercised its discretion in enjoining the plaintiff, absent an emergency, from
instituting further actions or filing motions without first obtaining written
leave of the court and in imposing prospective sanctions on the plaintiff in
future litigation.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729173"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Both voluntary child support
payments which were made prior to a pendente lite order and payments made
pursuant to a pendente lite order may be credited toward a party’s retroactive
child support.</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Ford v Ford, 200 A.D.3d 854, 161 N.Y.S.3d 103, 2021
N.Y. Slip Op. 06988<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">(2d Dept., 2021) the<span style="mso-spacerun: yes;"> </span>parties were married in 1998, and had three
children. The plaintiff commenced an action for a divorce on May 4, 2012. On
March 6, 2013, the plaintiff moved for pendente lite relief. In an amended
order dated August 2, 2013, the Supreme Court directed the defendant, inter
alia, to continue to pay to the plaintiff unallocated maintenance and child
support and to pay 100% of various carrying charges on the marital residence,
which was in the plaintiff’s exclusive use and occupancy in accordance with a
stipulation of the parties and awarded the plaintiff interim counsel fees of
$3,000. On December 15, 2016, the parties entered into a stipulation of
settlement in which they agreed, inter alia, to the defendant’s prospective
child support obligation. The parties agreed to submit to the court for
determination the issues of retroactive child support and additional counsel
fees on behalf of the plaintiff. A judgment of divorce was entered April 26,
2017. The Appellate Division held, inter alia, that a party is entitled to a
credit for any amount of temporary child support already paid as well as for
carrying charges on the marital home. Both voluntary child support payments
which were made prior to a pendente lite order and payments made pursuant to a
pendente lite order may be credited toward a party’s retroactive child support.<span style="mso-spacerun: yes;"> </span>It noted that payments made by the defendant
toward counsel fees on behalf of the children do not constitute basic child
support.<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><br />
<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729174"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Petitioner
deprived of her statutory right to counsel where </span></a><span style="mso-bookmark: _Toc100729174;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>Family Court
failed to conduct a searching inquiry of the petitioner to ensure that her
waiver of her right to counsel was knowing, intelligent, and voluntary. </span></span><span style="mso-bookmark: _Toc100729174;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">C</span></span><span style="mso-bookmark: _Toc100729174;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">ourt’s determination, after brief questioning of the
petitioner,</span></span><span style="mso-bookmark: _Toc100729174;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> did not constitute a hearing to determine subject matter
jurisdiction.</span></span><span style="mso-bookmark: _Toc100729174;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In Matter of Minor v
Birkenmeyer, 200 A.D.3d 1044, 161 N.Y.S.3d 209, 2021 N.Y. Slip Op. 07546 (2d
Dept.,2021)<span style="mso-spacerun: yes;"> </span>the petitioner commenced a
family offense proceeding against the respondent, with whom she alleged she had
resided in the past. At the initial court appearance, the Family Court advised
the petitioner that she had a right to counsel, that “[h]aving an attorney can
be helpful” but that having an attorney “is not something that we force people
to do.” The court advised the petitioner that it could give her time to consult
with or hire an attorney or that the petitioner could ask the court to
determine if the petitioner would be eligible to have an attorney assigned to
represent her at no cost. The court also informed the petitioner that she also
had the right to represent herself and inquired if, for purposes of the
proceedings that day, she wanted to be represented by counsel. The petitioner
responded, “[f]or today’s purposes no I don’t think so.” The court then asked
the petitioner several questions about the petitioner’s relationship with the
respondent. Thereafter, in an order dated January 13, 2021, the Family Court
dismissed, with prejudice, the proceeding for lack of subject matter
jurisdiction. The Appellate Division reversed. It held that a<span style="mso-spacerun: yes;"> </span>party in a proceeding pursuant to Family
Court Act article 8 has the right to be represented by counsel.<span style="mso-spacerun: yes;"> </span>Family Court failed to conduct a searching
inquiry of the petitioner to ensure that her waiver of her right to counsel was
knowing, intelligent, and voluntary. Thus, the petitioner was deprived of her
statutory right to counsel. It also held that the Family Court also should have
conducted a hearing prior to determining that it lacked subject matter
jurisdiction on the ground that the parties did not have an intimate
relationship within the meaning of Family Court Act § 812(1)(e). The court’s
determination, after brief questioning of the petitioner, without affording the
petitioner the opportunity to testify or proffer any evidence as to whether the
relationship she had with the respondent constituted an intimate relationship
within the meaning of Family Court Act § 812(1)(e), did not constitute a
hearing. It remitted the matter to the Family Court for a hearing to determine
whether the Family Court had subject matter jurisdiction and for further
proceeding, if warranted. It directed that upon remittitur, the court must
conduct an appropriate inquiry as to whether the petitioner wishes to waive her
right to counsel.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729175"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Parents
</span></a><span style="mso-bookmark: _Toc100729175;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">retain the right to make
certain medical decisions for their children in foster care.</span></span><span style="mso-bookmark: _Toc100729175;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Appellate Division establishes
standard for determining if children in foster care can have covid-19 vaccine
despite objection by </span></span><span style="mso-bookmark: _Toc100729175;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">parent</span></span><span style="mso-bookmark: _Toc100729175;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">.</span></span><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> </span><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
Matter of Athena Y., 201 A.D.3d 113, 161 N.Y.S.3d 335, 2021 N.Y. Slip Op. 06908
(3d Dept.,2021)<span style="mso-spacerun: yes;"> </span>Petitioner commenced a
proceeding in August 2020 alleging that respondent neglected her four children.
In February 2021, petitioner effected an emergency removal of the children and
placed them in foster care. In response to respondent’s motion for their
return, Family Court held a hearing and denied that motion. Several months
later, the attorney for the children (AFC) informed Family Court that the two
oldest children, then 13 and 15 years old, wished to receive the COVID–19
vaccine, but respondent did not consent. In response to the court’s request for
the parties’ positions, the AFC, petitioner and the children’s father all
submitted letters in support of allowing the children to be vaccinated, while
respondent opposed the vaccination. After reviewing the parties’ submissions,
Family Court held that the children had the right to decide whether to receive
the COVID–19 vaccine and ordered that they shall be given the vaccine if they
still consent. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division reversed. It held that parents
have a fundamental right to raise their children in the manner they choose,
subject to the state’s ability to intervene to protect children in narrow
circumstances. By statute, the right to make health care decisions for oneself
belongs to anyone at least 18 years old. Under common law, parents generally
have the right to make health care decisions for their minor children, though
some exceptions exist, such as for emergency situations. Even when the state
intrudes on a family by obtaining a temporary order of custody due to abuse or
neglect, “parents retain the right to make certain medical decisions for their
children in foster care,” up until the moment that parental rights are
terminated. Family Court determined that the situation is “similar to
reproductive health services for children in foster care,” as governed by
regulations permitting children ages 12 and older to make their own decisions
after being informed about such relevant services (see 18 NYCRR 463.1,
463.2[b]). The Appellate Division held that Respondent was entitled to a
hearing before Family Court issued an order authorizing vaccination of the
children. Due process generally requires notice and an opportunity to be heard
before medical treatment is imposed upon a patient by court order (see Matter
of Fosmire v. Nicoleau, 75 N.Y.2d 218, 224, [1990]), but the opportunity to be
heard does not always require a formal procedure. Family Court gave the parties
notice that it was considering the AFC’s request and directed the parties to
submit their positions to the court in writing, thus providing some limited
opportunity to be heard. Having reviewed those submissions, the court rendered
its decision. The court made specific findings that the subject children “have
been fully informed regarding COVID–19 and the vaccine” and that they “have the
capacity to consent.” These factual findings were made without evidence and
based solely on hearsay, through unsworn letters containing representations by
counsel. This did not constitute a sufficient basis to support these findings.
At such a hearing, the court must focus on whether respondent’s refusal to
authorize vaccination constitutes “an acceptable course of medical treatment
for [her] child[ren] in light of all the surrounding circumstances,” while
heeding the Court of Appeals’ cautionary point that courts cannot “assume the
role of a surrogate parent” (Matter of Hofbauer, 47 N.Y.2d at 656). As the
Office of Children and Family Services’ guidance documents prohibit local
agencies from administering a COVID–19 vaccine if the child refuses to consent,
the hearing must address whether the subject children have been fully informed
about COVID–19 and the vaccine and whether they have the capacity to consent.
After the hearing, the court must carefully balance the risks and benefits of
the potential vaccination to decide whether to authorize it for the subject
children). It remitted for Family Court to promptly conduct a hearing on the
issue, applying this standard.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729176"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Where
al</span></a><span style="mso-bookmark: _Toc100729176;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">l parties were in agreement
that there was no concern over equitable estoppel and that a genetic marker
test as to respondent should be ordered<span style="mso-spacerun: yes;">
</span>Family Court </span></span><span style="mso-bookmark: _Toc100729176;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">exceeded its authority by ordering that another party
should be </span></span><span style="mso-bookmark: _Toc100729176;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">named
respondent in this proceeding. </span></span><span style="mso-bookmark: _Toc100729176;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A</span></span><span style="mso-bookmark: _Toc100729176;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> court
cannot, on its own initiative, add or direct the addition of a party</span></span><span style="mso-bookmark: _Toc100729176;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">.</span></span><span style="mso-bookmark: _Toc100729176;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In the Matter of Schenectady County Department of Social
Services on Behalf of Desiree CC v. Noah DD.,200 A.D.3d 1509, 161 N.Y.S.3d 442,
2021 N.Y. Slip Op. 07587 (3d Dept.,2022) nine months prior to the child’s
January 2017 birth, Petitioner<span style="mso-spacerun: yes;"> </span>was in a
sexual relationship with respondent, and the two resided together in North
Carolina. She entered into a relationship with Rory EE., a resident of New
York, in November 2017, when the child was 10 months old. About four months
later, petitioner filed an application on behalf of the mother against
respondent seeking an order of filiation. By January 2019, after the child had
just turned two years old, all parties were in agreement that there was no
concern over equitable estoppel in this matter and that a genetic marker test
as to respondent should be ordered (see generally Family Ct Act § 532[a]).
Family Court nonetheless determined that a hearing and written findings as to
equitable estoppel were required before a test could be ordered and it
subsequently added Rory EE. as a named respondent in this proceeding. The
Appellate Division held Family Court exceeded its authority by adding him.
Although a court may raise the absence of a necessary party at any stage of the
proceedings upon its own motion a court cannot, on its own initiative, add or
direct the addition of a party. Rather, the court may only summon a person who
should be joined, if the court has jurisdiction over the person; if
jurisdiction over the person can be obtained only by his or her consent or
appearance, the court must determine whether the proceeding should be permitted
to proceed in that person’s absence. Family Court plainly did not have the
authority to make Rory EE. a named party to this proceeding. . Family
Court<span style="mso-spacerun: yes;"> </span>also failed to obtain jurisdiction
over Rory EE. No petition or summons, or supplemental summons, was filed
against or served upon him (see Family Ct Act §§ 522–525), no party<span style="mso-spacerun: yes;"> </span>moved to add him as a necessary party and
there was no stipulation to that end (see CPLR 1003), and he had not appeared
before Family Court or otherwise consented to the court’s jurisdiction (see
CPLR 320[b]). It reversed and remitted for further proceedings, “at which time
the parties remain free to move for or stipulate to Rory EE. being added as a
necessary party, or not, and, absent such a motion or stipulation, and if his
joinder is deemed to be necessary, the court is limited to directing that
reasonable efforts be made to join him as a party or considering whether this
matter should proceed in his absence (see CPLR 1001)”.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729177"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Enforcement
of a post-adoption contact agreement will only be ordered if it is determined
to be in the child’s best interests</span></a><span style="mso-bookmark: _Toc100729177;"></span><span style="text-decoration: none; text-underline: none;"><span style="mso-tab-count: 3;"> </span><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In Matter of Jennifer JJ., v. Jessica JJ., 2022 WL
867119 (3d Dept.,2022) the Appellate Division pointed out that pursuant to
Domestic Relations Law § 112–b (4), birth parents and adoptive parents may enter
into a legally enforceable agreement regarding post-adoption contact that may
thereafter be enforced by filing a petition in Family Court. It held that
enforcement of a post-adoption contact agreement will only be ordered if it is
determined to be in the child’s best interests. The hearing court’s
determination of best interests will only be disturbed if it lacks a sound and
substantial basis in the record.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729178"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A
former judge is automatically prohibited, as a matter of law, from acting as an
attorney in any action, claim, matter, motion or proceeding, which has been
before him or her in his or her official character.</span></a><span style="mso-bookmark: _Toc100729178;"></span><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;"><span style="mso-spacerun: yes;"> </span>In Corey O v
Angela P, 2022 WL 867063 (3d Dept.,2022) the Appellate Division affirmed an
order which awarded the parties joint legal custody of the children with the
father having primary physical custody and the mother having parenting time.
The Appellate Division observed that the attorney for the children ( AFC) was
previously a judge who, in 2014, decided a custody case involving the mother
her. It noted that a former judge is automatically prohibited, as a matter of
law, from acting as an attorney “in any action, claim, matter, motion or
proceeding, which has been before him [or her] in his [or her] official
character” (Judiciary Law § 17). Here, the custody case neither involved the
subject children nor the subject children’s father. It was an entirely separate
proceeding involving different children and a different father. The mother
did<span style="mso-spacerun: yes;"> </span>not allege any factual ties between
these underlying proceedings and the prior custody case. The only common tie
between them was that the mother was a litigant. Only the mother, and not her
present custody claim over the subject children, had been before the AFC during
his tenure as a judge.<span style="mso-spacerun: yes;"> </span>Although not
explicitly clear from the record, the mother’s fitness as the custodial parent
presumably was an issue presented in her prior custody case. It was also an
issue present here. Equating a discrete issue with a “matter” provided in
Judiciary Law § 17, however, impermissibly stretches the meaning of “matter”
such that it does not comport with “action, claim, ... motion or proceeding” –
the other terms in Judiciary Law § 17. Moreover, in view of the jurisdiction of
Family Court and the particular cases such court hears, a party’s fitness as a
custodial parent frequently arises as an issue whether directly or indirectly.
By giving an expansive view to “matter,” the AFC, a former Family Court judge
who had presided over countless proceedings in the past, would be disqualified
from representing any party in any future case where another party in such case
was previously before the AFC in one of those past proceedings, a result that
would occur without regard to the nature of either the past proceeding or future
case. It held that based on the circumstances of this case, neither a new
hearing nor automatic disqualification of the AFC under Judiciary Law § 17
was<span style="mso-spacerun: yes;"> </span>required.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729179"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">T</span></a><span style="mso-bookmark: _Toc100729179;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">he costs of providing suitable housing, clothing and
food for<span style="mso-spacerun: yes;"> </span>child do not qualify as
extraordinary expenses so as to justify a deviation from the presumptive </span></span><span style="mso-bookmark: _Toc100729179;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">child support </span></span><span style="mso-bookmark: _Toc100729179;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">amount</span></span><span style="mso-bookmark: _Toc100729179;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">. E</span></span><span style="mso-bookmark: _Toc100729179;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">ntertainment,
including sports, </span></span><span style="mso-bookmark: _Toc100729179;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">is not </span></span><span style="mso-bookmark: _Toc100729179;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">an
extraordinary visitation expense for purposes of calculating child support.</span></span><span style="mso-bookmark: _Toc100729179;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Livingston County Support Collection Unit on
behalf of Yusko v.<span style="mso-spacerun: yes;"> </span>Sansocie, ---
N.Y.S.3d ----, 2022 WL 819070, 2022 N.Y. Slip Op. 01914 (4<sup>th</sup> Dept.,
2022)<span style="mso-spacerun: yes;"> </span>there was a shared custody
arrangement in which the father was the primary custodial parent. The Support
Magistrate determined that, because the children spent approximately 50% of the
parenting time with the mother and because the mother incurred expenses for the
children’s “food, clothing, shelter, utilities, cell phones, transportation[,]
and extracurricular activities” during the times they were with her, she should
be granted a variance from the presumptive support obligation. That was error.
Although “extraordinary expenses incurred by the non-custodial parent in
exercising visitation” with a child not on public assistance may support a
finding that the presumptive support obligation is unjust or inappropriate
(Family Ct Act § 413 [1] [f] [9] [I]), “[t]he costs of providing suitable
housing, clothing and food for [a child] during custodial periods do not
qualify as extraordinary expenses so as to justify a deviation from the
presumptive amount”, “nor is the cost of entertainment, including sports, an
extraordinary visitation expense for purposes of calculating child support”.
The Appellate Division concluded that the Support Magistrate’s determination
“was merely another way of [improperly] applying the proportional offset
method” which has been rejected. It remitted the matter to Family Court for a
determination of respondent’s support obligation upon an adequate record.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Family Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729180"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Family
Court holds that </span></a><span style="mso-bookmark: _Toc100729180;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">attorneys can
recoup fees that are expended while attempting to recover counsel fees</span></span><span style="mso-bookmark: _Toc100729180;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> </span></span><span style="mso-bookmark: _Toc100729180;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">in family offense proceedings</span></span><span style="mso-bookmark: _Toc100729180;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11pt;"><span style="mso-tab-count: 1;"> </span>In Matter of a Custody/Visitation Proceeding Article 8 of
the Family Court Act M. M., v. A. A., .74 Misc.3d 202 (Fam Ct, 2021) Respondent
was a physician who earned upwards of $300,000 a year. Petitioner was a stay-at-home
mother who does not have an independent source of income. Petitioner commenced
a family offense proceeding which resulted in a stipulated final order of
protection. Petitioner’s counsel brought a motion for legal fees in excess of
$40,000 dollars pursuant to Family Court Act § 842 (a) and (f). The Court
granted the motion in part. It noted that Family Court Act § 842(f) states that
if an order of protection is either obtained or enforced, the wrongdoer may be
required “to pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by such order.”
See Family Court Act § 842(f).<span style="mso-spacerun: yes;"> </span>The
Family Court Act is silent as to whether attorneys can recoup additional fees
that are expended while attempting to recover underlying counsel fees, and
there is a very limited body of case law which addresses “fees for fees” in
family offense proceedings. However ,the Court of Appeals has held that they
are authorized. (</span><em><span style="color: #145da4; font-size: 11pt;">O'Shea v O'Shea</span></em><i><span style="font-size: 11pt;">,
</span></i><span style="font-size: 11pt;">93 NY2d 187, 193 (1999)). It
explained that the Parties’ respective financial positions are a threshold
consideration in determining whether to award attorney’s fees. Other factors to
be considered are “the nature and extent of the services rendered, the
complexity of the issues involved, and counsel’s experience, ability, and
reputation.”<span style="mso-spacerun: yes;"> </span>Thereafter, the court must
determine the “reasonable” value of the services provided through an
evidentiary hearing. The court can consider the same factors used in
determining whether legal fees should be awarded when assessing their
reasonable value and total amount to be paid. In utilizing its discretion
regarding the total amount of legal fees<span style="mso-spacerun: yes;">
</span>to be paid, the court should assess facts, including the parties’
finances, relative to each other. For instance, in a fee hearing involving a
more monied Respondent father, the same factors which support an award of
counsel fees also militate against granting the mother’s request that
respondent be responsible for her entire fee.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><span style="font-family: arial;">March 16,
2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729181"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Residence
means living in a particular locality, even if a person does not intend to make
that place a fixed and permanent home, i.e., a domicile. A person’s ‘residence’
entails something more than temporary or physical presence, with some degree of
permanence and an intention to remain. To consider a place a residence, he must
stay there for some length of time and have the bona fide intent to retain the
place as a residence with at least some degree of permanency. Sheltering in
place in a seasonal home did not create a sufficient degree of permanence to
establish residency at that location</span></a><span style="mso-bookmark: _Toc100729181;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="color: red;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="font-size: 11pt;"><span style="mso-tab-count: 1;"> </span>In
Matter of Fisch v Davidson, --- N.Y.S.3d ----, 2022 WL 697403, 2022 N.Y. Slip
Op. 01442 (2d Dept.,2022)<span style="mso-spacerun: yes;"> </span>the parties to
this divorce action primarily resided in New York County, while maintaining a
seasonal second home in Suffolk County. In March 2020, when the COVID-19
pandemic first reached New York City, the defendant retreated to the Suffolk
County residence along with her pregnant and immunocompromised daughter and
began spending more time there in order to assist the daughter during the
pregnancy and after the child’s birth. In August 2020, the plaintiff commenced
this action for a divorce in Suffolk County, on the ground that the parties
were residents of Suffolk County. The defendant moved pursuant to CPLR 510 and
511 for a change of venue, and the Supreme Court denied the motion. The Supreme
Court denied the defendant’s motion. The court concluded, inter alia,<span style="mso-spacerun: yes;"> </span>that Suffolk County was a proper venue
pursuant to CPLR 503(a) and 510(1) because the defendant was a resident of
Suffolk County.<span style="mso-spacerun: yes;"> </span>The Appellate Division
reversed. It held that under the circumstances of this case sheltering in place
in a seasonal home did not create a sufficient degree of permanence to
establish residency at that location. It held that because the parties’ stays
in Suffolk County were only seasonal and temporary<span style="mso-spacerun: yes;"> </span>neither of them were residents of Suffolk
County at the time of the commencement of the action. Because Suffolk County
was not a proper venue, the Supreme Court should have granted the defendant’s
motion pursuant to CPLR 510 and 511 to change the venue of the action from
Suffolk County to New York County.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11pt;"><span style="mso-spacerun: yes;"> </span>In its analysis the Appellate Division
observed that CPLR 510(1) provides that the court, upon motion, may change the
place of trial of an action where the county designated for that purpose is not
a proper county. CPLR 503(a) provides that except where otherwise prescribed by
law, the place of trial shall be in the county in which one of the
parties resided</span></b><b><span style="font-size: 11pt;"> </span></b><b><span style="font-size: 11pt;">when
it was commenced.<span style="mso-spacerun: yes;"> </span>The leading Court of
Appeals case on the issue of the meaning of “reside” is Yaniveth R. v. LTD
Realty Co. (27 NY3d 186).<span style="mso-spacerun: yes;"> </span>In that case,
the Court of Appeals concluded that a child who did not live in the subject
apartment but spent approximately 50 hours per week there with a caregiver did
not “reside” in the apartment In doing so, the Court of Appeals reviewed, among
other things, venue cases interpreting CPLR 503(a) and its predecessor, and
synthesized from them the following definition of “residence”: “[r]esidence
means living in a particular locality, even if a person does not intend to make
that place a fixed and permanent home, i.e., a domicile…. [A] person’s
‘residence’ entails something more than temporary or physical presence, with
some degree of permanence and [an] intention to remain. Thus, [a]lthough it is
true that a person may have more than one residence[,]…to consider a place as
such, he [or she] must stay there for some length of time and have the bona
fide intent to retain the place as a residence with at least some degree of
permanency”.<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>This Court has held that “[r]esidence
requires more stability than a brief sojourn for business, social or
recreational activities.” Thus, in Doe v. Hall (36 AD3d 651), the Court held
that the affidavit of the plaintiff’s son, who stated that at the time of the
commencement of the action the plaintiff maintained a residence at her son’s
apartment in Queens County and would “reside” there when she came back to
Queens County during holidays and other times, was insufficient to establish
that the plaintiff resided in Queens County at the time the action was
commenced.<span style="mso-spacerun: yes;"> </span>Similarly, in Stern v.
Epstein (29 AD3d 778), this Court held that the plaintiffs’ use of their
medical office in Kings County to sleep over for convenience a couple of nights
a week did not render them residents of Kings County for venue purposes. And in
Katz v. Siroty (62 AD2d 1011), the plaintiff, whose primary residence was in
Scarsdale, retained the exclusive use of a bedroom in his sister and
brother-in-law’s home in Brooklyn, where he slept between 50 and 100 times per
year when he visited his Manhattan law office or when he had to see people in
localities such as Patchogue, Long Island. This Court concluded that the
plaintiff’s “occasional use of a bedroom in his sister and brother-in-law’s
home when he transacts business in the New York metropolitan area does not
support his contention that he has a second residence in Brooklyn”.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>This case presented two issues relating to the parties’
residence: (1) whether the parties’ seasonal use of the Southampton house on
weekends prior to March 2020 made them residents of Suffolk County; and (2)
whether the defendant’s retreat to the Southampton house at the outset of the
COVID-19 pandemic made her a resident of Suffolk County. The Appellate Division
concluded that neither of these things made the parties residents of Suffolk
County.<span style="mso-spacerun: yes;"> </span>The defendant clearly
established that the parties primarily resided in New York County. The
defendant submitted, among other things, copies of: the parties’ income tax
returns, listing their address in New York County as their residence and
reflecting their payment of New York City income taxes; the defendant’s voter
registration showing that she was registered to vote in New York County; the
defendant’s driver license listing her address in New York County; motor
vehicle records showing that the parties’ cars were all registered in New York
City or were in the process of having the registration transferred from New
Jersey to New York City; an email from the plaintiff to the parties’ art
insurance carrier stating that the parties did not have any intention of adding
any art to the Southampton house; and bank statements listing the Beresford
apartment and the plaintiff’s Manhattan office as the parties’ addresses.<br />
<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>Although a person may have more than
one residence, the defendant demonstrated that neither party resided in Suffolk
County at the time of the commencement of the action.<span style="mso-spacerun: yes;"> </span>With respect to the parties’ use of the
Southampton house prior to 2020, the Appellate Division observed that<span style="mso-spacerun: yes;"> </span>a highly instructive case was<span style="mso-spacerun: yes;"> </span>Daley v. Daley (257 AD2d 593) which held that
a seasonal residence was not sufficient to establish a party’s residency for
venue purposes, at least where the party frequently resided in another location
during the workweek. Here, in her affidavit submitted in support of her motion,
the defendant averred that prior to 2020, the Southampton house was only used
by the parties on weekends in the summertime, with limited exceptions, and that
the only time the parties stayed in the Southampton house outside of the summer
season was a few days over the Christmas holiday break in 2018. The plaintiff’s
affirmation submitted in opposition to the motion does not contain anything
disputing these averments. Since it was undisputed that, prior to 2020, the
parties only stayed in the Southampton house on weekends in the summer, with
limited exceptions, contrary to the plaintiff’s contention, neither party
resided in Suffolk County at any time prior to 2020. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Contrary to the Supreme Court’s conclusion, the time the
defendant spent in the Southampton house in 2020 during the COVID-19 pandemic
was not enough to make her a resident of Suffolk County. Although the defendant
retreated to the Southampton house in March 2020, it was<span style="mso-spacerun: yes;"> </span>undisputed that the defendant planned only to
stay there temporarily to assist her immunocompromised daughter and newborn
grandchild when the COVID-19 pandemic was at its zenith in New York City. Under
the circumstances of this case, the defendant did not have the bona fide intent
to retain [Suffolk County] as a residence with at least some degree of permanency
(See Yaniveth R. v. LTD Realty Co., 27 NY3d at 193 ; Morreale v. 105 Page
Homeowners Assn., Inc., 64 AD3d at 690; see also Ray-Ollenu v. Kaufman Mgt.
Co., 107 AD3d 476; Sibrizzi v. Mount Tom Day School, 155 AD2d at 338).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729182"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">A
party seeking a downward modification of an unallocated order of child support
based on the emancipation of one of the children has the burden of proving that
the amount of unallocated child support is excessive based on the needs of the
remaining children.</span></a><span style="mso-bookmark: _Toc100729182;"></span><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Gerety v Gerety, --- N.Y.S.3d ----, 2022 WL
697433, 2022 N.Y. Slip Op. 01455 (2d Dept.,2022) the Appellate Division held
that the party seeking modification of an order of child support has the burden
of establishing the existence of a substantial change in circumstances
warranting the modification. In determining whether there has been a change in
circumstances warranting modification of a parent’s child support obligation,
the court must consider several factors, including the increased needs of the
children, the increased cost of living insofar as it results in greater
expenses for the children, a loss of income or assets by a parent or a
substantial improvement in the financial condition of a parent, and the current
and prior lifestyles of the children. A substantial change in circumstances may
be measured by comparing the parties’ financial situation at the time of the
application for modification with that existing at the time the order sought to
be modified was issued. In addition, a party seeking a downward modification of
an unallocated order of child support based on the emancipation of one of the
children has the burden of proving that the amount of unallocated child support
is excessive based on the needs of the remaining children. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt; mso-no-proof: yes;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729183"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Not
an abuse of discretion to refuse to appoint an AFC where child was less than
one year old at the time and<span style="mso-spacerun: yes;"> </span>would have
been unable to express his wishes to an AFC</span></a><span style="mso-bookmark: _Toc100729183;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span lang="EN-CA" style="font-size: 11pt; mso-ansi-language: EN-CA;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span lang="EN-CA" style="font-size: 11pt; mso-ansi-language: EN-CA;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Santana v Barnes, --- N.Y.S.3d ----, 2022 WL 731173 (Mem), 2022 N.Y. Slip
Op. 01634 (4<sup>th</sup> Dept., 2022) a custody and visitation proceeding the
Appellate Division rejected the mother’s contention that the court erred in
failing to appoint an attorney for the child (AFC). The determination whether
to appoint an AFC in a custody and visitation proceeding is discretionary.
Although a court may appoint an AFC on its own motion it held that, given that
the child was less than one year old at the time and thus would have been
unable to express his wishes to an AFC, the court did not abuse its discretion
in not appointing an AFC.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">March 9, 2022<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729184"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Revised Forms Released</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: black; font-size: 10.5pt;"><span style="font-family: arial;">Revised Forms for Use in Matrimonial Actions
in Supreme Court were adopted effective March 1, 2022. These revisions reflect
the required statutory adjustment on March 1, 2022 of the combined income cap
under the Child Support Standards Act from $154,000 to $163,000, and of
the income cap of the maintenance payor under the Maintenance Guidelines Act
from $192,000 to $203,000. Both of these adjustments are based on
increases in the Consumer Price Index for all urban consumers (CPI-U) published
by the United States Department of Labor. In addition, the revised forms
reflect the increases as of March 1, 2022 in the Self Support Reserve from
$17,388 to $18,346.50 and in the federal Poverty Level Income for a
single person from $12,880 to $13,590.<o:p></o:p></span></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><b><span style="color: black; font-size: 10.5pt;"><br />
</span></b><span style="color: black; mso-color-alt: windowtext;"><a href="http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml"><b><span style="color: black; font-size: 10.5pt; text-decoration: none;">Uncontested Divorce Forms were
revised March 1, 2022 reflecting these changes</span></b></a></span><b><span style="color: black; font-size: 10.5pt;"><o:p></o:p></span></b></span></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt;">The uncontested divorce packet and the
following forms in <a name="_Hlk97447678">uncontested divorce packet </a>were
revised: <a name="_Hlk97447586">UD</a>-8(2)</span></b><b><span style="color: black; font-size: 11pt;"> Maintenance Guidelines Worksheet</span></b><b><span style="color: black; font-size: 11pt;">; UD -8(3)</span></b><b><span style="color: black; font-size: 11pt;"> Child Support Worksheet</span></b><b><span style="color: black; font-size: 11pt;">; UD</span></b><b><span style="color: black; font-size: 11pt;"> -10 Findings of Fact And Conclusions Of
Law</span></b><b><span style="color: black; font-size: 11pt;">: UD</span></b><b><span style="color: black; font-size: 11pt;">
-11 Judgment of Divorce; </span></b><b><span style="color: black; font-size: 11pt;">UD</span></b><b><span style="color: black; font-size: 11pt;"> -13 Uncontested Matrimonial Request For Judicial Intervention</span></b><b><span style="color: black; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><span style="font-family: arial;"><span style="color: black; mso-color-alt: windowtext;"><a href="http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml"><b><span style="color: black; font-size: 10.5pt; text-decoration: none;">Worksheets for both Contested
and Uncontested Divorces were revised March 1, 2022 reflecting these changes</span></b></a></span><b><span style="color: black; font-size: 10.5pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: #262626; font-size: 11pt; mso-fareast-font-family: "Times New Roman";">The following contested divorce worksheets
were revised: </span><a href="https://www.nycourts.gov/LegacyPDFS/divorce/childsupport/TMG-Worksheet.PDF"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Temporary Maintenance Guidelines worksheet</span><span style="font-size: 10.5pt; text-decoration: none; text-underline: none;"> </span></a><span style="color: #262626; font-size: 11pt;">(for divorces started on or after
10/25/15);</span><span style="color: #262626; font-size: 10.5pt;"> </span><a href="https://www.nycourts.gov/LegacyPDFS/divorce/childsupport/CombinedWorksheetAndAPP.pdf" target="_blank"><span style="background: white; color: #000099; font-size: 10.5pt; text-decoration: none; text-underline: none;">Post-Divorce Maintenance/Child
Support Worksheet</span></a><span class="MsoHyperlink"><span style="background: white; color: #000099; font-size: 10.5pt; text-decoration: none; text-underline: none;"><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span class="MsoHyperlink"><b><span style="background: white; color: red; font-size: 10.5pt; text-decoration: none; text-underline: none;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729185"><span class="MsoHyperlink"><span style="background: white; font-size: 11pt; text-decoration: none; text-underline: none;">Amendments to </span></span></a><span style="mso-bookmark: _Toc100729185;"><span style="font-size: 11pt; mso-fareast-font-family: "Times New Roman"; text-decoration: none; text-underline: none;">Domestic Relations
Law §240-d (5)<span style="mso-spacerun: yes;"> </span>and </span></span><span style="mso-bookmark: _Toc100729185;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court Act § 413-b</span></span><span style="mso-bookmark: _Toc100729185;"></span><span class="MsoHyperlink"><span style="background: white; font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></span></h1>
<p class="MsoFootnoteText" style="text-indent: 0.5in;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoFootnoteText" style="text-indent: 0.5in;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">Domestic Relations Law §240-d (5) and </span><span style="color: black; font-size: 11pt; mso-themecolor: text1;">Family Court Act § 413-b</span><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"> which were enacted in 2021 (Laws of 2021,
Ch.437)</span><span style="color: blue;"> </span><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">were amended to clarify that an order of support for an
adult with developmental disabilities is not applicable to services under
section 111-g of the social services law. Subdivision 6 was added to provide
that a court's finding concerning a person's disability status is not binding
on the state, a local government, or the person, for any other purpose,
including whether the person is eligible for services from the state office for
people with developmental disabilities.</span><span style="color: black; font-size: 11pt; mso-themecolor: text1;"> Laws
of 2022, Ch 110, approved February 24, 2022, effective October 8, 2021<span style="mso-bidi-font-weight: bold;"><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: blue; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: blue; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><b><span style="color: blue; font-size: 11pt; mso-fareast-font-family: "Times New Roman";"><span style="mso-tab-count: 1;"> </span></span><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">Subdivision 5 was amended and a new subdivision 6 was added to read as
follows:<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>5. Except where inconsistent with this
section, all provisions of this<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>article relating
to orders of child support shall apply to all orders of<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="mso-spacerun: yes;"> </span>support for
adults with developmental disabilities;<span style="mso-spacerun: yes;">
</span>provided,<span style="mso-spacerun: yes;"> </span>however,</span><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>that<span style="mso-spacerun: yes;"> </span>such orders shall not be eligible for
services pursuant to section<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>one hundred
eleven-g of the social services law.<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>6. A determination made pursuant to
this section that the person is or<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>is not
developmentally disabled, as defined in subdivision twenty-two of<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>section 1.03
of the mental hygiene law, shall<span style="mso-spacerun: yes;">
</span>not<span style="mso-spacerun: yes;"> </span>be<span style="mso-spacerun: yes;"> </span>binding<span style="mso-spacerun: yes;">
</span>on<span style="mso-spacerun: yes;"> </span>the<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>state, a
local government or the person for any other purpose, including<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>determinations<span style="mso-spacerun: yes;"> </span>of eligibility for services authorized by the
office for<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="color: black; font-size: 11pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span>people with
developmental disabilities. (new matter in bold)<o:p></o:p></b></span></span></p>
<p class="MsoNormal"><span style="mso-bidi-font-weight: bold;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="mso-bidi-font-weight: bold;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt; mso-outline-level: 1;"><span style="font-family: arial;"><a name="_Toc100729186"><b><span style="color: red; font-size: 11pt;">Although
father’s objections to orders of the Support Magistrate were untimely<span style="mso-spacerun: yes;"> </span>and Appellate Division exercised its
discretion to entertain the appeal to the extent it implicated the Family
Court’s subject matter jurisdiction</span></b></a><b><span style="color: red; font-size: 11pt;"> <o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span lang="EN-CA" style="font-size: 11pt; mso-ansi-language: EN-CA;"><br />
</span><!--[if supportFields]><b><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><span style="font-size: 11pt;"><span style="mso-tab-count: 1;"> </span>In
Matter of Deborah K v Richard K, --- N.Y.S.3d ----, 2022 WL 618996 (Mem), 2022
N.Y. Slip Op. 01391(1<sup>st</sup> Dept.,2022) the Appellate Division found
that the father’s objections to the amended orders of the Support Magistrate
were untimely (Family Court Act § 439[e]), and that he failed to proffer a
reasonable excuse for the delay. Nevertheless, it exercised its discretion to
entertain this appeal (see Family Court Act § 1112), to the extent it
implicated the Family Court’s subject matter jurisdiction to modify the
parties’ stipulation of settlement agreement, dated February 26, 2013 (see
Matter of Georgette D.W. v. Gary N.R., 134 A.D.3d 406, 406, 21 N.Y.S.3d 41 [1st
Dept. 2015]). It observed that a stipulation of settlement which is
incorporated but not merged into the parties’ judgment of divorce may be
reformed only in a plenary action and that<span style="mso-spacerun: yes;">
</span>Family Court does not have jurisdiction to modify a separation
agreement. <o:p></o:p></span></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></b></p>
<p style="background: white; margin-bottom: 3.75pt; margin-left: 0in; margin-right: 0in; margin-top: 7.5pt; margin: 7.5pt 0in 3.75pt;"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729187"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Service
by email is not one of the permissible methods of service of papers upon a
party who has not appeared by an attorney. Therefore, father’s contentions
regarding the merits of his objections were not reviewable.</span></a><span style="mso-bookmark: _Toc100729187;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="color: red;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Nizen v Jacobellis, --- N.Y.S.3d ----, 2022 WL 610030
(Mem), 2022 N.Y. Slip Op. 01299 (2d Dept.,2022) the father filled objections to
an order dated January 19, 2021, asserting that the order failed to adequately
credit him for payments he made toward the arrears. The father attempted to
effectuate service of his objections upon the mother, who was not represented
by counsel, via email. The mother did not file a rebuttal to the father’s
objections. Family Court denied the father’s objections on the ground of
improper service. The Appellate Division affirmed. It held that Family Court
properly denied his objections on the ground of improper service. Family Court
Act § 439(e) provides, in pertinent part, that a party filing objections shall
serve a copy of such objections upon the opposing party, and that proof of
service upon the opposing party shall be filed with the court at the time of
filing of objections. Since Family Court Act § 439(e) does not set forth the
permissible methods for service of objections, the provisions of the Civil
Practice Law and Rules are applicable. Pursuant to CPLR 2103(b), papers to be
served upon a party, which includes an “opposing party” as described in Family
Court Act § 439(e), shall be served upon the party’s attorney (CPLR 2103[b]),
and may be served by, inter alia, transmitting the papers to the attorney by
email when the transmission by email is made “upon the party’s written consent”
( § 2103[b][7]). However, if<span style="mso-spacerun: yes;"> </span>a party has
not appeared by an attorney, service shall be upon the party” (§ 2103[c]), and
may be made by certain methods set forth in CPLR 2103(b), such as personal
delivery (§ 2103[b][1]; [c]). Service by email is not one of the permissible
methods of service of papers upon a party who has not appeared by an attorney.
Since the father failed to serve his objections upon the mother in compliance
with CPLR 2103(c), the father’s proof of service of the objections upon the
mother was deficient. Therefore, the father failed to fulfill a condition
precedent to filing timely written objections and, failed to exhaust the Family
Court procedure for review of his objections. Consequently, the father’s
contentions regarding the merits of his objections were not reviewable.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729188"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Based on the wife’s imputed
income and the husband’s income, the presumptive postdivorce maintenance
obligation was unjust and inappropriate where wife could support herself
through her Social Security income and food stamps, her ownership of the
marital residence, her support from family and friends and her ability to work.
Property distribution will not be disturbed absent an abuse of discretion or
failure to consider the requisite statutory factors under Domestic Relations
Law § 236(B)(5)(d) .</span></a><span style="mso-bookmark: _Toc100729188;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In King v King, 2022 WL 547156 (3d Dept.,2022) Plaintiff
(husband) and defendant ( wife) were married in 1977 and, in 1989, plaintiff
moved out of the marital residence. In July 2016, the husband commenced this
action for divorce based on irretrievable breakdown of the marriage. Supreme
Court determined that the wife was not entitled to equitable distribution of
the husband’s 401(k) and retirement plans and declined to impose any
postdivorce maintenance. The Appellate Division affirmed. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division found that the testimony at trial
established that the husband was 63 years old and in good health at the time of
trial. At the time of trial, the husband was working as a sales supervisor
earning $48,000 per year. For additional income, the husband was driving for
Uber earning, on average, $250 per week, but he was not compensated for gas
mileage or wear and tear on his vehicle. In 1985, the wife purchased property
located in Feura Bush, Albany County. Three years later, the husband transferred
his interest in the property to the wife. Since 1991, the husband lived with a
woman and that they split household expenses. He<span style="mso-spacerun: yes;"> </span>indicated that he had credit card debt
amounting to $2,600. He owed $500 in back taxes. At the time of trial, the wife
was<span style="mso-spacerun: yes;"> </span>63 years old, in good health and was
residing in the marital residence. She had an Associate’s degree in secretarial
science. Most of her work had been administrative. She was not employed at the
time of trial, having retired, and was receiving $750 monthly through Social
Security benefits. Her 2016 tax return indicated that she earned $6,878 in
income. The wife could not explain why her earnings were low considering her
employment history. Her resume indicated that she has various computer skills,
which she had retained. The wife indicated that she had received insurance
through Medicaid. She had a savings account, which was not reflected on her
statement of net worth. which reflected varying balances in excess of $2,000,
which the wife alleged was an error. The wife was unable to state who deposited
the funds. “My supports.”<span style="mso-spacerun: yes;"> </span>The wife
heavily relied on spousal support payments the husband had been ordered to make
and received Supplemental Nutrition Assistance Program payments. The wife
indicated that she had not applied for any jobs recently, but there was no
reason that she cannot work in certain positions. The wife testified that, in
approximately 2001, a family friend paid off the mortgage and now owned the
residence but she was still listed on the deed. She stated that she had certain
maintenance payments for the house and paid the homeowners’ insurance, but the
owner took care of most expenses. Although she testified that she had not paid
rent since 2005, her financial affidavit reflected rent or mortgage payments of
$550. This same family friend assisted with the wife’s counsel fees. There was
no evidence that she could not work, Supreme Court imputed income to the wife
based on her administrative skill set and her ability to earn $10 per hour on a
part-time basis. Based on the wife’s imputed income and the husband’s income,
the court calculated the presumptive postdivorce maintenance obligation and
then, after reviewing the statutory factors in Domestic Relations Law §
236(B)(6)(e)(1), determined that this award was unjust and inappropriate. The
Appellate Division affirmed. The court<span style="mso-spacerun: yes;">
</span>determined that the wife could support herself through her Social
Security income and food stamps, her ownership of the marital residence, her
support from family and friends and her ability to work. The Appellate Division
found that this deviation was supported by the record, especially considering
that the wife conceded that the spousal support payments were for the mortgage
and the mortgage had since been paid in full. It noted that upon the entry of
the divorce judgment by Supreme Court, all prior support orders of Family Court
became null and void in the absence of Supreme Court’s adoption and
incorporation of those orders in the divorce judgment” (Family Ct Act §
412[1][c]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division rejected the wife’s argument that
Supreme Court erred in denying her any portion of the husband’s retirement
accounts because the court did not consider certain statutory factors outlined
in Domestic Relations Law § 236(B)(5)(d). Domestic Relations Law § 236(B)(5)(d)
directs that “the court shall set forth the factors it considered and the
reasons for its decision and such may not be waived” (Domestic Relations Law §
236[B][5][g]). However, the factors do not have to be specifically cited when
the factual findings of the court otherwise adequately articulate that the
relevant statutory factors were considered. The court’s award will not be
disturbed absent an abuse of discretion or failure to consider the requisite
statutory factors under Domestic Relations Law § 236(B)(5)(d) . The record
revealed that, as of June 2018, defendant’s 401(k) account had just over
$10,000. He also had a pension plan that would pay him $500 per month,
contingent on the stock, when he reaches the age of 65. In its order, Supreme
Court explicitly stated each factor it must consider under Domestic Relations
Law § 236(B)(5)(d) and then analyzed each factor that was relevant, while
indicating what factors it deemed irrelevant to the analysis. After analyzing each
factor, Supreme Court looked at each asset to determine what distribution would
be appropriate and found it appropriate to award the entirety of the retirement
assets to the husband. With that being said, the court awarded the entire
marital residence to the wife and any other property not discussed was
distributed to “the party holding title or possession.” In support of its
determination, the court stated that “it is appropriate, equitable and just to
award the husband [the retirement] assets in light of the fact that the parties
had been physically and financially separated for at least 14 years when the
husband started working at Golub [Corporation] and in light of the [c]ourt’s
award of the marital residence to the wife without any distribution to the
husband of a portion of the equity.” Although the court did not explicitly
state which factors contributed to the decision regarding the retirement
assets, the order expressly stated each factor and assessed<span style="mso-spacerun: yes;"> </span>its relevance against the facts and circumstances
of the case, and it was clear from the order that the parties’ respective
incomes, the duration of the marriage and other financial circumstances were
heavily considered. Based on the foregoing it could not be said that the court
abused its discretion in awarding the husband 100% of his retirement assets.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729189"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court’s determination
to modify a permanency goal will not be disturbed unless it lacks a sound and
substantial basis in the record.</span></a><span style="mso-bookmark: _Toc100729189;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Gabrielle N, --- N.Y.S.3d ----, 2022 WL 547209,
2022 N.Y. Slip Op. 01213 (3d Dept.,2022) a neglect proceeding,<span style="mso-spacerun: yes;"> </span>the Appellate Division affirmed an order
which modified a permanency goal to placement for adoption. It observed that at
the conclusion of a permanency hearing, the court has the authority to modify
an existing permanency goal and must enter a disposition based upon the proof
adduced and in accordance with the best interests of the children. While the
aspiration is to return children to their parents, where such goal proves
impossible because the parents are<span style="mso-spacerun: yes;">
</span>unable to correct the conditions that led to the removal, the goal then
becomes finding a permanent, stable solution for the children. Family Court’s
determination to modify a permanency goal will not be disturbed unless it lacks
a sound and substantial basis in the record. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729190"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The mere fact that the court
adopted petitioners’ proposed findings of fact did not compel a conclusion that
it did not undertake an independent evaluation of the record.</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> </span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Baby S, --- N.Y.S.3d ----, 2022 WL 547137,
2022 N.Y. Slip Op. 01219 (3d Dept.,2022) after petitioners commenced a
proceeding to adopt her child, respondent filed a notice of revocation of her
extrajudicial consent to the adoption. Petitioners opposed the revocation.
Following a hearing, Family Court adopted the proposed findings of fact and
conclusions of law submitted by petitioners in its entirety and found that the
extrajudicial consent was valid and that her notice of revocation was null and
void. The Appellate Division affirmed. It held that in view of respondent’s
timely revocation of her extrajudicial consent and petitioners’ timely
opposition, at issue was whether petitioners’ adoption of the child, as
permitted by Family Court, served the child’s best interests (Domestic Relations
Law § 115–b [6][d][ii]) as the custody of the “ child shall be awarded solely
on the basis of the best interests of the child, and there shall be no
presumption that such interest will be promoted by any particular custodial
disposition” (Domestic Relations Law § 115–b [6][d][v]). It rejected that
argument that Family Court improperly delegated its responsibility to make
factual findings when it adopted petitioners’ proposed findings of fact in
total. It found that the court directed the parties to submit their own
proposed findings of fact, and it was permitted to receive them and “pass upon
[them]” (CPLR 4213[a]). The mere fact that the court adopted petitioners’
proposed findings of fact did not compel a conclusion that it did not undertake
an independent evaluation of the record. The court presumably “did exactly that
and, as a result, concurred with the proposed findings submitted” (Gerenstein
v. Williams, 282 A.D.2d 786, 787, 723 N.Y.S.2d 255 [2001]). In a footnote it
pointed out that a court’s wholesale copying of the prevailing party’s
proposal, although occasionally allowable, is rarely advisable, particularly in
such a delicate case. The better practice is for a court to craft its own
decision stating] the facts it deems essential” (CPLR 4213[b]), even if it
incorporates many of the findings submitted by one party.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729191"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Although a subsequently issued
permanency order effectively supersedes prior permanency orders, an appeal from
a prior order is not moot if that prior order modified the permanency goal.</span></a><span style="mso-bookmark: _Toc100729191;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Jaylynn WW, 2022 WL 547172 (3d Dept.,2022),
a neglect proceeding,<span style="mso-spacerun: yes;"> </span>the Appellate
Division observed that although CPLR 2101(c) requires the caption of a summons
and complaint in a civil matter to include the names of all parties, captions
in petitions for Family Ct Act article 10 proceedings often include the names
of the children and the respondent parents or other adults responsible for the
abuse or neglect but do not always include the name of the petitioning child protective
agency. However, defects in the form of papers shall be disregarded by the
court unless a substantial right of a party is prejudiced, and objections to
defects in form are waived unless the paper is returned with particular
objections within 15 days of receipt (see CPLR 2101[f]). Under that statutory
provision, the father waived any objection to the form of the caption in the
petition and he had not demonstrated any prejudice. For<span style="mso-spacerun: yes;"> </span>these reasons, the petition was not
jurisdictionally defective.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that although a subsequently
issued permanency order effectively supersedes prior permanency orders, an
appeal from a prior order is not moot if that prior order modified the
permanency goal; because, by changing the goal, “Family Court altered [the
local social service agency’s] obligations in future permanency hearings from
working toward reunification” with a parent to working toward a different
permanent placement, any new permanency orders will be a direct result of the
orders appealed from and the issue of whether those orders were proper will
still affect the father’s rights. Accordingly, the appeal from the orders
entered after the third permanency hearing was not moot.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">March
1, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729192"><strong><span style="background: white; color: #f0210b; font-size: 11pt; text-decoration: none;">Release
of Revised forms and Child Support Standards Chart on March 1, 2022</span></strong></a><strong><span style="background: white; color: #f0210b; font-size: 11pt; text-decoration: none;"> <o:p></o:p></span></strong></span></h1>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoFootnoteText"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11pt;"><span style="font-family: arial;">Revised Forms for Use in Matrimonial Actions in
Supreme Court were adopted effective March 1, 2022. These revisions reflect the
required statutory adjustment on March 1, 2022 of the combined income cap under
the Child Support Standards Act from $154,000 to $163,000, and of the income
cap of the maintenance payor under the Maintenance Guidelines Act from $192,000
to $203,000. Both of these adjustments are based on increases in the Consumer
Price Index for all urban consumers (CPI-U) published by the United States
Department of Labor. In addition, the revised forms reflect the increases as of
March 1, 2022 in the Self Support Reserve from $17,226, to $18,347 and in the
federal Poverty Level Income for a single person from $12,760 to $13,590.<span style="mso-bidi-font-weight: bold;"><o:p></o:p></span></span></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: black; font-size: 11pt;"><span style="font-family: arial;">The following forms were
revised:<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Preliminary conference stipulation/order contested matrimonial<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Maintenance Guidelines Worksheet (UD-8 (2))<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Child Support Worksheet (UD-8 (3))<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Temporary Maintenance Worksheet (for divorces started on or after
10/25/15)<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Combined Worksheet for Maintenance and Child Support<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt; mso-themecolor: text1;"><span style="font-family: arial;">Child Support Standards Act Chart<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department
<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729193"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">While not all provisions of
the CPL are applicable to proceedings under the Family Court Act under the
circumstances here, the denial of records available under CPL 245.10(1)(k)(iv),
which broadly requires disclosure of all impeachment evidence deprived
appellant of equal protection of the laws.</span></a><span style="mso-bookmark: _Toc100729193;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Jayson C., 200 A.D.3d 447, 159 N.Y.S.3d 40,
2021 N.Y. Slip Op. 06794 (1<sup>st</sup> Dept., 2021) a juvenile delinquency
proceeding, appellant sought an order directing the presentment agency to
provide the discovery sought in his Discovery Demand, including impeachment
evidence pursuant to CPL 245.20(1)(k)(iv), and argued that it was
unconstitutional to deny him those materials solely because he was an alleged
juvenile delinquent. The presentment agency opposed the motion and argued that
it provided all discovery required by the Family Court Act, and that CPL
article 245 did not apply to juvenile delinquency proceedings. The Family Court
“deemed satisfied” appellant’s motion because the presentment agency had
provided the relief requested in his motion. The Family Court denied any
request for “further witness information” stating that “the provisions of the
CPL cited by [appellant] are expressly inapplicable and preempted in juvenile
delinquency cases pursuant to Family Ct Act 303.1(1). The Appellate Division
held that while not all provisions of the Criminal Procedure Law are applicable
to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the
circumstances presented here, the denial of records available under CPL
245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence
deprived appellant of equal protection of the laws. A respondent in a juvenile
delinquency proceeding has the same right to cross-examine witnesses as a
criminal defendant, and there is no reason to allow more limited access to
impeachment materials in a juvenile suppression or fact-finding hearing than in
a criminal suppression hearing or trial. The need for impeachment evidence is
equally crucial in both delinquency and criminal proceedings. A similarly
situated defendant in a criminal proceeding would be entitled to access to the
impeachment materials requested by appellant. Because appellant asked only that
the information be provided under Family Court Act article 3 timelines, it held
that it need not address whether any different time frame<span style="mso-spacerun: yes;"> </span>contained in the Criminal Procedure Law must
apply under equal protection principles.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729194"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Where father moved to Florida
and mother was awarded custody, Family Court’s directive that the mother
contribute to the transportation costs to effectuate the father’s parenting
time was fair and appropriate</span></a><span style="mso-bookmark: _Toc100729194;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 10pt;"> </span><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span> SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Andrea H v Justin I, --- N.Y.S.3d ----, 2022 WL
479492, 2022 N.Y. Slip Op. 01080 (3d Dept.,2022) after<span style="mso-spacerun: yes;"> </span>the father relocated to Florida with his wife
to take care of certain family members with failing health. Family Court
awarded the parties joint legal custody of the children with primary physical
custody to the mother, as the parties had agreed. The father was awarded set
parenting time. So long as the father paid a minimum of $100 per week in child
support and was not more than six weeks behind in his current child support
obligation, the parties were to split the transportation costs associated with
effectuating the father’s Christmas break parenting time in odd years and for
one of the visits each summer. In all other instances, the father would be solely
responsible for transportation costs, and an annual cap of $750 was set for the
mother’s share of transportation expenses. The Appellate Division found that
Family Court’s directive that the mother contribute to the transportation costs
to effectuate the father’s parenting time was fair and appropriate. The parties
were “on fairly equal footing” financially at the time of the hearing. Although
it is relevant that the father’s voluntary relocation to Florida led to the
increased transportation costs the father still bears a substantial portion of
the costs under the order. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729195"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Where mother appealed from
custody order but<span style="mso-spacerun: yes;"> </span>attorney for the child
did not appeal she was barred from seeking affirmative relief not sought by the
mother.</span></a><span style="mso-bookmark: _Toc100729195;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Charity K v Sultani L, --- N.Y.S.3d ----,
2022 WL 479490, 2022 N.Y. Slip Op. 01085 (3d Dept.,2022) the mother appealed
from an order which denied her petition for modification of a custody order and
argued, with the support of the appellate attorney for the child, that the
record did<span style="mso-spacerun: yes;"> </span>not support continuing the
child’s physical placement with the father. In affirming, the Appellate
Division held that since the attorney for the child did not appeal from Family
Court’s order she was “barred from seeking affirmative relief not sought by the
mother.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729196"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Mother failed to meet her
burden and equitable estoppel did not apply to Petitioner where respondent
transitioned from a fatherly role to a friendly role upon discovering that he
was not the child’s biological father</span></a><span style="mso-bookmark: _Toc100729196;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Matter of John
D v Carrie C, --- N.Y.S.3d ----, 2022 WL 479489, 2022 N.Y. Slip Op. 01089(3d
Dept.,2022) the Appellate Division affirmed an order which ordered a genetic
marker test pursuant to Family Ct Act § 532(a) which allows the court to deny a
genetic marker test on the basis of equitable estoppel.<span style="mso-spacerun: yes;"> </span>It found that respondent, who was listed
falsely on as the father on the childs birth certificate, signed an
acknowledgment of paternity, was present at the hospital when the child was
born and participated in the care of the child for the first year and a half of
her life, transitioned from a fatherly role to a friendly role upon discovering
that he was not the child’s biological father, and the child, who was six years
old at the hearing, had been raised with the understanding that respondent was
not her father. The mother testified that she now indicates to the child that
respondent is her father, knowing with certainty that he is not. As the record
failed to establish that the child would suffer irreparable loss of status,
destruction of [her] family image, or other harm to [her] physical or emotional
well-being if this proceeding were permitted to go forward, it found that
contrary to Family Court’s order, the mother failed to. By contrast, a parent-child
relationship between petitioner and the child had evolved since their initial
contact in early January 2020. The mother testified that she stopped allowing
the child to see petitioner after petitioner became “demanding” about having
regular weekend parenting time with the child at his home and outside of the
mother’s presence. Accordingly, equitable estoppel did not bar issuance of an
order for genetic marker tests.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729197"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Ct Act § 427[a]
requires service of both the summons and the petition to obtain personal
jurisdiction in support proceeding. Traverse ordered where affidavit of service
indicated service of summons only.</span></a><span style="mso-bookmark: _Toc100729197;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Commissioner of Broome County Social
Services on Behalf of Harbst v Wagner,<span style="mso-spacerun: yes;">
</span>2022 WL 479456 (3d Dept.,2022) the Appellate Division reversed an order
which granted petitioner’s application, to hold respondent in willful violation
of two prior orders of support. It observed that in a proceeding to enforce a
support order, personal jurisdiction may be obtained over the respondent
through personal service of the summons and petition at least eight days before
the scheduled appearance (see Family Ct Act §§ 427[a]; 453[c]). In the
affidavit of service the person who served process checked the box for “summons,”
but did not check the box for “petition.” The statute requires service of both
the summons and the petition (see Family Ct Act § 427[a]). As such, the Support
Magistrate and Family Court erred in accepting the affidavit as proof of
adequate service without further inquiry on the matter at a traverse hearing.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729198"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Where custody order was
entered on the parents’ consent but over the AFC’s objection, the child was
aggrieved given that she did not receive her desired outcome with respect to
the custodial arrangement</span></a><span style="mso-bookmark: _Toc100729198;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Jessee U v Dakota V, 2022 WL 479465 (3d
Dept.,2022) before a fact-finding hearing on the custody petition was held, the
mother and the father came to an agreement whereby the father would have
primary physical custody and the mother would have weekend visits every other
week and certain other parenting time. Upon the parents’ consent, but over the
objection of the AFC, Family Court entered an order in July 2020 effectuating
the agreement. The court entered a fact-finding and dispositional order as to
the mother’s neglect proceeding thereinafter, in December 2020. The AFC
appealed from both orders. The AFC argued that, by merely accepting the
parents’ agreement, Family Court abdicated its responsibility to ensure that
the custodial arrangement furthers the child’s best interests, and the AFC
requested that the matter be remitted for a full evidentiary hearing. The
Appellate Division affirmed. It held that Family Court is not required to hold
a hearing in every custody matter, and a hearing is not necessary where none is
requested and the court has “sufficient information to undertake a
comprehensive independent review of the child’s best interests”. Here, there
was no request for a hearing following Family Court’s acceptance of the agreement.
In addition, the court had sufficient information to consider the child’s best
interests. No hearing was required here.<span style="mso-spacerun: yes;">
</span>In a footnote the Court pointed out that the custody order was entered
on the parents’ consent but over the AFC’s objection, and the child was
aggrieved thereby given that she did not receive her desired outcome with
respect to the custodial arrangement. However, the child was<span style="mso-spacerun: yes;"> </span>not aggrieved by the finding of neglect
against the mother as the AFC consented to the entry of an order to that end.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Supreme
Court<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729199"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">“Habitual residence”
determination is fact driven. Court must inquire into shared intent of those
entitled to fix child’s home at the latest time that they had the same
interests and should inquire whether evidence unequivocally concludes that
child has acclimatized to the new location<span style="mso-spacerun: yes;">
</span>notwithstanding any conflict with parents’ latest shared intent.</span></a><span style="mso-bookmark: _Toc100729199;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
State of New York Ex Rel. B.E., v. T.C., --- N.Y.S.3d ----, 2022 WL 497517,
2022 N.Y. Slip Op. 22044 (Sup Ct, 2022)<span style="mso-spacerun: yes;">
</span>Mr. E. filed a petition permitting him to immediately take M. to London
based on the Court’s emergency jurisdiction under Domestic Relations Law 75-a
(7), and 76-c and the Hague Convention. Currently M. Was with his mother,
Respondent T.C. in Brooklyn. Ms. C. moved to, inter alia, dismiss petitioner’s
application under CPLR 3211 (a)(4) and DRL 76-e (1) and 76-e (2). Mr. E. wanted
the court to assume temporary emergency jurisdiction of M. under Domestic
Relations Law section 76-C and because M. is imminent danger for among other
things, he will miss the starts of the school semester. He asked the court to
determine an emergency under New York’s Domestic Relation Law to avoid a
possible negative outcome in San Francisco California, where a custody action
between the parties was pending that pre-dated this New York case.<span style="mso-spacerun: yes;"> </span>The court denied the petitioner’s application
to apply UCCJA jurisdiction under CPLR 3211(a)(7) prior action pending.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Supreme Court denied Mr. E.’s request for a ruling that
under the Hague convention England was M.’s “habitual residence” and that he
should be immediately returned<span style="mso-spacerun: yes;"> </span>to his
care. The Court observed that to determine habitual residence, “the court must
also inquire into the shared intent of those entitled to fix the child’s home
(usually the parents) at “the latest time that they had the same interests”.
The court must consider intent, actions, and declaration. And the court should
inquire whether the evidence unequivocally concludes that the child has
acclimatized to the new location and thus has acquired a new habitual
residence, notwithstanding any conflict with the parents’ latest shared intent.
(Matter of E.Z. 2021 WL 5106637 [SDNY 2021]) The parties resided in England
from the 2007 marriage until 2014. When they moved to San Francisco they sold
their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the
marriage and insisted he take M. and move from the marital residence. Mr. E.
commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour
during 2017 M. continued to reside in San Francisco. In 2018 she moved to New
York for medical treatment and remained there when diagnosed with breast
cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he
removed M. to England without Ms. C.’s consent. He moved into his parent’s home
and enrolled M. in school in England. They visited Ms. C. in New York during
the Christmas holidays in 2019 and from February 15-23, 2020. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Supreme Court noted that the “habitual residence”
determination is “fact driven,” and “courts must be sensitive to the case’s
unique circumstances and informed by common sense.” (Monasky v. Taglieri, 140
S. Ct. 719, 723 [2020]). The residence must have the “quality of being
habitual.” The court must consider time passage, participation in sports
programs and excursions, academic activities, and meaningful connections with
the people and places in the child’s new country. Parents must have a “shared”
settled intent to acquire a new habitual residence in the shared plan about the
child’s future. Shared intent may “coalesce” if the child leaves the country.
The court found two places where the parents would have agreed to reside
habitually: San Francisco or New York after July 25, 2021. Ms. C. never
abandoned her apartment in San Francisco and never consented to M. relocating
permanently to England in December 2019. Nothing indicatef M. acclimated to
England. The court found<span style="mso-spacerun: yes;"> </span>that Mr. E. did
not create a situation that changed M.’s “habitual residence” to England. His
actions in San Francisco and New York, indicated he did not rely on a Hague
Convention case setting a new “habitual residence.” The<span style="mso-spacerun: yes;"> </span>court found that both parents had a shared
intent that New York would become M.’s habitual residence as of July 2021 and
that the facts did not establish that England was M.’s “habitual residence.”
Mr. E.’s petition for an order mandating M.’s return to England was denied.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">February
23, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department
<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729200"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">W</span></a><span style="mso-bookmark: _Toc100729200;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">hile not all provisions of the C</span></span><span style="mso-bookmark: _Toc100729200;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">PL </span></span><span style="mso-bookmark: _Toc100729200;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">are applicable to proceedings under the Family Court
Act under the circumstances here, the denial of records available under CPL</span></span><span style="mso-bookmark: _Toc100729200;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> </span></span><span style="mso-bookmark: _Toc100729200;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">245.10(1)(k)(iv), which broadly requires disclosure
of all impeachment evidence deprived appellant of equal protection of the laws.</span></span><span style="mso-bookmark: _Toc100729200;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Jayson C., 200 A.D.3d 447, 159 N.Y.S.3d 40,
2021 N.Y. Slip Op. 06794 (1<sup>st</sup> Dept., 2021) a juvenile delinquency
proceeding, appellant sought an order directing the presentment agency to
provide the discovery sought in his Discovery Demand, including impeachment
evidence pursuant to CPL 245.20(1)(k)(iv), and argued that it was
unconstitutional to deny him those materials solely because he was an alleged
juvenile delinquent. The presentment agency opposed the motion and argued that
it provided all discovery required by the Family Court Act, and that CPL
article 245 did not apply to juvenile delinquency proceedings. The Family Court
“deemed satisfied” appellant’s motion because the presentment agency had
provided the relief requested in his motion. The Family Court denied any
request for “further witness information” stating that “the provisions of the
CPL cited by [appellant] are expressly inapplicable and preempted in juvenile
delinquency cases pursuant to Family Ct Act 303.1(1). The Appellate Division
held that while not all provisions of the Criminal Procedure Law are applicable
to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the
circumstances presented here, the denial of records available under CPL
245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence
deprived appellant of equal protection of the laws. A respondent in a juvenile
delinquency proceeding has the same right to cross-examine witnesses as a
criminal defendant, and there is no reason to allow more limited access to
impeachment materials in a juvenile suppression or fact-finding hearing than in
a criminal suppression hearing or trial. The need for impeachment evidence is
equally crucial in both delinquency and criminal proceedings. A similarly
situated defendant in a criminal proceeding would be entitled to access to the
impeachment materials requested by appellant. Because appellant asked only that
the information be provided under Family Court Act article 3 timelines, it held
that it need not address whether any different time frame<span style="mso-spacerun: yes;"> </span>contained in the Criminal Procedure Law must
apply under equal protection principles.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729201"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Where
father moved to Florida and mother was awarded custody, </span></a><span style="mso-bookmark: _Toc100729201;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court’s directive that the mother contribute
to the transportation costs to effectuate the father’s parenting time was fair
and appropriate</span></span><span style="mso-bookmark: _Toc100729201;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 10pt;"> </span><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span> SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Andrea H v Justin I, --- N.Y.S.3d ----, 2022 WL
479492, 2022 N.Y. Slip Op. 01080 (3d Dept.,2022) after<span style="mso-spacerun: yes;"> </span>the father relocated to Florida with his wife
to take care of certain family members with failing health. Family Court
awarded the parties joint legal custody of the children with primary physical
custody to the mother, as the parties had agreed. The father was awarded set
parenting time. So long as the father paid a minimum of $100 per week in child
support and was not more than six weeks behind in his current child support
obligation, the parties were to split the transportation costs associated with
effectuating the father’s Christmas break parenting time in odd years and for
one of the visits each summer. In all other instances, the father would be solely
responsible for transportation costs, and an annual cap of $750 was set for the
mother’s share of transportation expenses. The Appellate Division found that
Family Court’s directive that the mother contribute to the transportation costs
to effectuate the father’s parenting time was fair and appropriate. The parties
were “on fairly equal footing” financially at the time of the hearing. Although
it is relevant that the father’s voluntary relocation to Florida led to the
increased transportation costs the father still bears a substantial portion of
the costs under the order. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729202"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Where
mother appealed from custody order but </span></a><span style="mso-bookmark: _Toc100729202;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>attorney for the child did not
appeal she was barred from seeking affirmative relief not sought by the mother.</span></span><span style="mso-bookmark: _Toc100729202;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Charity K v Sultani L, --- N.Y.S.3d ----,
2022 WL 479490, 2022 N.Y. Slip Op. 01085 (3d Dept.,2022) the mother appealed
from an order which denied her petition for modification of a custody order and
argued, with the support of the appellate attorney for the child, that the
record did<span style="mso-spacerun: yes;"> </span>not support continuing the
child’s physical placement with the father. In affirming, the Appellate
Division held that since the attorney for the child did not appeal from Family
Court’s order she was “barred from seeking affirmative relief not sought by the
mother.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729203"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Mother
failed to </span></a><span style="mso-bookmark: _Toc100729203;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">meet her
burden and equitable estoppel did not apply</span></span><span style="mso-bookmark: _Toc100729203;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> to Petitioner where
respondent </span></span><span style="mso-bookmark: _Toc100729203;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">transitioned
from a fatherly role to a friendly role upon discovering that he was not the
child’s biological father</span></span><span style="mso-bookmark: _Toc100729203;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Matter of John
D v Carrie C, --- N.Y.S.3d ----, 2022 WL 479489, 2022 N.Y. Slip Op. 01089(3d
Dept.,2022) the Appellate Division affirmed an order which ordered a genetic
marker test pursuant to Family Ct Act § 532(a) which allows the court to deny a
genetic marker test on the basis of equitable estoppel.<span style="mso-spacerun: yes;"> </span>It found that respondent, who was listed
falsely on as the father on the childs birth certificate, signed an
acknowledgment of paternity, was present at the hospital when the child was
born and participated in the care of the child for the first year and a half of
her life, transitioned from a fatherly role to a friendly role upon discovering
that he was not the child’s biological father, and the child, who was six years
old at the hearing, had been raised with the understanding that respondent was
not her father. The mother testified that she now indicates to the child that
respondent is her father, knowing with certainty that he is not. As the record
failed to establish that the child would suffer irreparable loss of status,
destruction of [her] family image, or other harm to [her] physical or emotional
well-being if this proceeding were permitted to go forward, it found that
contrary to Family Court’s order, the mother failed to. By contrast, a parent-child
relationship between petitioner and the child had evolved since their initial
contact in early January 2020. The mother testified that she stopped allowing
the child to see petitioner after petitioner became “demanding” about having
regular weekend parenting time with the child at his home and outside of the
mother’s presence. Accordingly, equitable estoppel did not bar issuance of an
order for genetic marker tests.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729204"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Ct Act § 427[a</span></a><span style="mso-bookmark: _Toc100729204;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">]</span></span><span style="mso-bookmark: _Toc100729204;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"> requires service of both the summons and the
petition </span></span><span style="mso-bookmark: _Toc100729204;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">to obtain personal jurisdiction in support proceeding</span></span><span style="mso-bookmark: _Toc100729204;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">.</span></span><span style="mso-bookmark: _Toc100729204;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> Traverse ordered where affidavit of service indicated
service of summons only.</span></span><span style="mso-bookmark: _Toc100729204;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Commissioner of Broome County Social
Services on Behalf of Harbst v Wagner,<span style="mso-spacerun: yes;">
</span>2022 WL 479456 (3d Dept.,2022) the Appellate Division reversed an order
which granted petitioner’s application, to hold respondent in willful violation
of two prior orders of support. It observed that in a proceeding to enforce a
support order, personal jurisdiction may be obtained over the respondent
through personal service of the summons and petition at least eight days before
the scheduled appearance (see Family Ct Act §§ 427[a]; 453[c]). In the
affidavit of service the person who served process checked the box for
“summons,” but did not check the box for “petition.” The statute requires
service of both the summons and the petition (see Family Ct Act § 427[a]). As
such, the Support Magistrate and Family Court erred in accepting the affidavit
as proof of adequate service without further inquiry on the matter at a
traverse hearing.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729205"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Where
</span></a><span style="mso-bookmark: _Toc100729205;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">custody order was entered on
the parents’ consent but over the AFC’s objection, the child was aggrieved
given that she did not receive her desired outcome with respect to the
custodial arrangement</span></span><span style="mso-bookmark: _Toc100729205;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Jessee U v Dakota V, 2022 WL 479465 (3d
Dept.,2022) before a fact-finding hearing on the custody petition was held, the
mother and the father came to an agreement whereby the father would have
primary physical custody and the mother would have weekend visits every other
week and certain other parenting time. Upon the parents’ consent, but over the
objection of the AFC, Family Court entered an order in July 2020 effectuating
the agreement. The court entered a fact-finding and dispositional order as to
the mother’s neglect proceeding thereinafter, in December 2020. The AFC
appealed from both orders. The AFC argued that, by merely accepting the
parents’ agreement, Family Court abdicated its responsibility to ensure that
the custodial arrangement furthers the child’s best interests, and the AFC
requested that the matter be remitted for a full evidentiary hearing. The
Appellate Division affirmed. It held that Family Court is not required to hold
a hearing in every custody matter, and a hearing is not necessary where none is
requested and the court has “sufficient information to undertake a
comprehensive independent review of the child’s best interests”. Here, there
was no request for a hearing following Family Court’s acceptance of the
agreement. In addition, the court had sufficient information to consider the
child’s best interests. No hearing was required here.<span style="mso-spacerun: yes;"> </span>In a footnote the Court pointed out that the
custody order was entered on the parents’ consent but over the AFC’s objection,
and the child was aggrieved thereby given that she did not receive her desired
outcome with respect to the custodial arrangement. However, the child was<span style="mso-spacerun: yes;"> </span>not aggrieved by the finding of neglect
against the mother as the AFC consented to the entry of an order to that end.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Supreme
Court<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729206"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">“</span></a><span style="mso-bookmark: _Toc100729206;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">H</span></span><span style="mso-bookmark: _Toc100729206;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">abitual residence” determination is fact driven</span></span><span style="mso-bookmark: _Toc100729206;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">. C</span></span><span style="mso-bookmark: _Toc100729206;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">ourt must inquire into shared intent of those
entitled to fix child’s home at the latest time that they had the same
interests</span></span><span style="mso-bookmark: _Toc100729206;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> and s</span></span><span style="mso-bookmark: _Toc100729206;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">hould inquire
whether evidence unequivocally concludes that child has acclimatized to the new
location</span></span><span style="mso-bookmark: _Toc100729206;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> </span></span><span style="mso-bookmark: _Toc100729206;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>notwithstanding any conflict with parents’
latest shared intent.</span></span><span style="mso-bookmark: _Toc100729206;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span style="font-size: 10pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In
State of New York Ex Rel. B.E., v. T.C., --- N.Y.S.3d ----, 2022 WL 497517,
2022 N.Y. Slip Op. 22044 (Sup Ct, 2022)<span style="mso-spacerun: yes;">
</span>Mr. E. filed a petition permitting him to immediately take M. to London
based on the Court’s emergency jurisdiction under Domestic Relations Law 75-a
(7), and 76-c and the Hague Convention. Currently M. Was with his mother,
Respondent T.C. in Brooklyn. Ms. C. moved to, inter alia, dismiss petitioner’s
application under CPLR 3211 (a)(4) and DRL 76-e (1) and 76-e (2). Mr. E. wanted
the court to assume temporary emergency jurisdiction of M. under Domestic
Relations Law section 76-C and because M. is imminent danger for among other
things, he will miss the starts of the school semester. He asked the court to
determine an emergency under New York’s Domestic Relation Law to avoid a
possible negative outcome in San Francisco California, where a custody action between
the parties was pending that pre-dated this New York case.<span style="mso-spacerun: yes;"> </span>The court denied the petitioner’s application
to apply UCCJA jurisdiction under CPLR 3211(a)(7) prior action pending.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Supreme Court denied Mr. E.’s request for a ruling that
under the Hague convention England was M.’s “habitual residence” and that he
should be immediately returned<span style="mso-spacerun: yes;"> </span>to his
care. The Court observed that to determine habitual residence, “the court must
also inquire into the shared intent of those entitled to fix the child’s home
(usually the parents) at “the latest time that they had the same interests”.
The court must consider intent, actions, and declaration. And the court should
inquire whether the evidence unequivocally concludes that the child has
acclimatized to the new location and thus has acquired a new habitual
residence, notwithstanding any conflict with the parents’ latest shared intent.
(Matter of E.Z. 2021 WL 5106637 [SDNY 2021]) The parties resided in England
from the 2007 marriage until 2014. When they moved to San Francisco they sold
their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the
marriage and insisted he take M. and move from the marital residence. Mr. E.
commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour
during 2017 M. continued to reside in San Francisco. In 2018 she moved to New
York for medical treatment and remained there when diagnosed with breast
cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he
removed M. to England without Ms. C.’s consent. He moved into his parent’s home
and enrolled M. in school in England. They visited Ms. C. in New York during
the Christmas holidays in 2019 and from February 15-23, 2020. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Supreme Court noted that the “habitual residence” determination
is “fact driven,” and “courts must be sensitive to the case’s unique
circumstances and informed by common sense.” (Monasky v. Taglieri, 140 S. Ct.
719, 723 [2020]). The residence must have the “quality of being habitual.” The
court must consider time passage, participation in sports programs and
excursions, academic activities, and meaningful connections with the people and
places in the child’s new country. Parents must have a “shared” settled intent
to acquire a new habitual residence in the shared plan about the child’s
future. Shared intent may “coalesce” if the child leaves the country. The court
found two places where the parents would have agreed to reside habitually: San
Francisco or New York after July 25, 2021. Ms. C. never abandoned her apartment
in San Francisco and never consented to M. relocating permanently to England in
December 2019. Nothing indicatef M. acclimated to England. The court found<span style="mso-spacerun: yes;"> </span>that Mr. E. did not create a situation that
changed M.’s “habitual residence” to England. His actions in San Francisco and
New York, indicated he did not rely on a Hague Convention case setting a new
“habitual residence.” The<span style="mso-spacerun: yes;"> </span>court found
that both parents had a shared intent that New York would become M.’s habitual
residence as of July 2021 and that the facts did not establish that England was
M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return
to England was denied.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><span style="font-family: arial;">February
16, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729207"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Generally, where the asset to
be valued is the marital residence, the valuation date employed should be the
date of trial</span></a><span style="mso-bookmark: _Toc100729207;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Kattan v Kattan, --- N.Y.S.3d ----, 2022 WL 385950,
2022 N.Y. Slip Op. 00856 (2d Dept.,2022) the<span style="mso-spacerun: yes;">
</span>parties were married in 1989 and had four children together, the
youngest of whom was currently 20 years old. On January 8, 2009, the plaintiff
commenced this action for a divorce. The Supreme Court conducted a nonjury
trial over 45 nonconsecutive days between May 9, 2011, and May 15, 2014, and
issued a decision after trial dated May 3, 2018. A judgment of divorce dated
December 11, 2018, (1) awarded the defendant title to the marital residence and
awarded the plaintiff $1,637,500 for his interest in the marital residence; (2)
awarded the defendant $1,190,301.18 for her contribution to the appreciation in
value of the plaintiff’s separate property in Deal, New Jersey ( which the
Appellate Division reduced on this appeal); (3) awarded the defendant title to
certain marital property on Ditmas Avenue in Brooklyn, and awarded the
plaintiff the sum of $532,294.27 for his interest in that property; (4) awarded
the plaintiff $807,408.60 for his interest in certain marital property on
Avenue P in Brooklyn; (5) awarded the defendant $472,500 for her interest in
certain marital property on 20th Avenue in Brooklyn; (8) awarded the defendant
30% of the appreciated value of the plaintiff’s premarital interest in Madison
Maidens and 50% of the plaintiff’s postmarital interest in Madison Maidens; (9)
awarded the defendant maintenance of $5,000 per month for a period of 18 months;
(10) directed the plaintiff to pay the defendant basic child support of $2,250
per month plus 71.08% of statutory add-on expenses for the parties’
unemancipated child; (12) awarded the defendant 50% of the cash surrender value
of an AVIVA life insurance policy.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division, inter alia,<span style="mso-spacerun: yes;"> </span>held that the Supreme Court providently
exercised its discretion in awarding the defendant title to the marital
residence and in calculating the plaintiff’s 50% interest in that property
based upon the value of that property as stipulated to by the parties during
the trial of this action in 2012. Generally, where the asset to be valued is
the marital residence, “the valuation date employed should be the date of
trial” (Wegman v. Wegman, 123 A.D.2d 220, 232, 509 N.Y.S.2d 342). The court
explained in its decision that it determined to award the defendant title to
the marital residence upon consideration of the totality of the circumstances,
including the court’s distribution awards with respect to the remainder of the
parties’ marital property, and the defendant’s position as custodial parent of
the parties’ then-unemancipated child. However, the Supreme Court should have
awarded the plaintiff a credit for separate property funds he used to purchase
and renovate the marital residence. The plaintiff’s proof at trial established
that he used $991,416.54 in separate property funds to purchase and renovate
the marital residence. It modified<span style="mso-spacerun: yes;"> </span>the
judgment to award the plaintiff<span style="mso-spacerun: yes;">
</span>$2,133,208.27 for his interest in the marital residence, constituting
$991,416.54 in credits for his separate property contribution plus
$1,141,791.73, which was 50% of the stipulated value of the marital residence
of $3,275,000, as reduced by the amount of the plaintiff’s separate property contribution.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division also modified the<span style="mso-spacerun: yes;"> </span>judgment by deleting the provision<span style="mso-spacerun: yes;"> </span>awarding the defendant $1,190,301.18 for her
contributions to the appreciation in value of the plaintiff’s separate property
in Deal, New Jersey, and substituting<span style="mso-spacerun: yes;"> </span>a
provision awarding the defendant $595,150.59 for her contributions to the
appreciation in value of that property; and<span style="mso-spacerun: yes;">
</span>by deleting the provision awarding the defendant $472,500 for her
interest in certain marital property on 20th Avenue in Brooklyn, and substituting<span style="mso-spacerun: yes;"> </span>a provision awarding the defendant
$428,492.50 for her interest in that property;<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729208"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court Act § 439(e) is
mandatory insofar as it plainly states that the court shall,” within 15 days of
an objection to a support award being fully submitted, issue a ruling on it.”</span></a><span style="mso-bookmark: _Toc100729208;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Liu v Ruiz, 200 A.D.3d 68, 158 N.Y.S.3d 25,
2021 N.Y. Slip Op. 06089 (1s Dept.,2021) after Family Court failed to issue a
timely ruling on the mother’s objections to findings of fact issued by support magistrate
in proceedings on her<span style="mso-spacerun: yes;"> </span>child support
violation petition, the mother filed petition for mandamus relief against the
Chief Administrative Judge of the Family Court, to compel a decision on
mother’s objections and for reasonable attorney fees under State Equal Access
to Justice Act (EAJA). After a judge was assigned to the support proceeding and
issued a<span style="mso-spacerun: yes;"> </span>favorable decision on the
mother’s pending objections, the State, on behalf of the Chief Administrative
Judge, cross-moved to dismiss the<span style="mso-spacerun: yes;">
</span>mandamus proceeding. The Supreme Court denied the<span style="mso-spacerun: yes;"> </span>petition and dismissed the proceeding as
moot. The Appellate Division held that the<span style="mso-spacerun: yes;">
</span>failure by Chief Administrative Judge to assign judge to hear the
mother’s objections within 15 days violated a clear obligation in the statute
governing support magistrates and the<span style="mso-spacerun: yes;">
</span>mother was entitled to attorney fees as “prevailing party” under EAJA.
It held that Family Court Act § 439(e) was violated. The statute is mandatory
insofar as it plainly states that the court shall,” within 15 days of an
objection to a support award being fully submitted, issue a ruling on it.”<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 10pt;"><span style="font-family: arial;">February
9, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department
<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729209"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">So long as disclosure sought
from nonparty witness is relevant to the prosecution or defense of an action,
it must be provided by the nonparty</span></a><span style="font-size: 11pt; text-decoration: none; text-underline: none;"><span style="mso-tab-count: 1;"> </span></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Gross v Hazan-Gross, --- N.Y.S.3d ----, 2022 WL 243140 (Mem), 2022 N.Y. Slip
Op. 00501(1s Dept.,2022) the Appellate Division affirmed an order which granted
defendant wife’s motion to compel nonparty appellant (Langman) to produce
documents responsive to a subpoena and to appear for examination before trial,
unanimously affirmed, with costs. It held that the motion court providently
exercised its discretion in ordering Langman to comply with the Subpoena.
Langman failed to show that the discovery sought by defendant via the Subpoena
was “utterly irrelevant” or that the “futility of the process to uncover
anything legitimate is inevitable or obvious” (Matter of Kapon v. Koch, 23
N.Y.3d 32 [2014]) So long as the disclosure sought is relevant to the
prosecution or defense of an action, it must be provided by the nonparty.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729210"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Respondent was a person
legally responsible (PLR) for the children </span></a><span style="mso-bookmark: _Toc100729210;"><span lang="EN-CA" style="font-size: 11pt; mso-ansi-language: EN-CA; text-decoration: none; text-underline: none;"><span style="mso-spacerun: yes;"> </span>where</span></span><span style="mso-bookmark: _Toc100729210;"><span lang="EN-CA" style="mso-ansi-language: EN-CA; text-decoration: none; text-underline: none;"> </span></span><span style="mso-bookmark: _Toc100729210;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">parties
represented he was the child’s biological father, he maintained communication
with the mother and failed to appear or testify to dispute the evidence,
allowing the court to draw a negative inference against him.</span></span><span style="mso-bookmark: _Toc100729210;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Tristian B., 2022 WL 243150 (1<sup>st</sup>
Dept.,,2022) the Appellate Division reversed an order which dismissed the
petition alleging neglect or derivative neglect of the child for lack of
standing, and found respondent<span style="mso-spacerun: yes;"> </span>to have
neglected the subject child. Petitioner demonstrated by a preponderance of the
evidence that respondent was a person legally responsible (PLR) for the subject
child, as well as for the child’s three older siblings. Respondent and the
children’s mother were in a romantic relationship and lived together before the
child was born, and they both represented to caseworkers that respondent was
the child’s biological father. There was evidence that, although he was
excluded from the home because of an order of protection against him,
respondent maintained communication with the mother and slept at the home at
least on occasion, sharing the mother’s bed. Respondent failed to appear or
testify to dispute the evidence that he was the child’s biological father or a
PLR for him. The fact that respondent was excluded from the household before
the child’s birth as a result of having committed acts of excessive corporal
punishment against the child’s eldest sibling did<span style="mso-spacerun: yes;"> </span>not outweigh the evidence that demonstrated
that he was a PLR for the child. The finding that respondent was a PLR for the
child was further supported by his failure to appear in court, allowing the
court to draw a negative inference against him.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729211"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">While court has considerable
discretion in imputing income, the imputed income figure must be rationally
based. Where the imputed income amount was entirely speculative it<span style="mso-spacerun: yes;"> </span>should not have been imputed to the
plaintiff. Expenses for extracurricular activities are not specifically
delineated as an “add-on” under the CSSA.</span></a><span style="mso-bookmark: _Toc100729211;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Tuchman v Tuchman, --- N.Y.S.3d ----, 2022 WL 221204,
2022 N.Y. Slip Op. 00454 (2d Dept.,2022) the plaintiff and the defendant were
married in January 1985 and had four children, two of whom were unemancipated
at the time of trial, born 1997 and 2005, respectively. On November 27, 2012,
the plaintiff commenced this action for a divorce. Midway through a nonjury
trial the parties entered into a stipulation of settlement resolving the issues
of equitable distribution, separate property, businesses, counsel fees, and
professional fees. Following the trial, the Supreme Court issued a decision
setting forth its determinations regarding the outstanding issues. In the
decision, the court determined to impute an annual income of $800,000 to the
defendant and an annual income of $62,231.46 to the plaintiff. The judgment of
divorce, which incorporated the June 2017 stipulation, insofar as appealed from
(1) awarded the plaintiff nondurational maintenance of $25,000 per month
commencing May 1, 2018, and continuing for a period of five years,$20,000 per
month for an additional period of five years, and $12,000 per month thereafter
until the death of either party or the remarriage of the plaintiff; (2)
directed the defendant to pay basic child support for the parties’ youngest
child of $4,611 per month and 93% of the costs of the extracurricular
activities of that child; (3) directed the defendant to pay 100% of the
unreimbursed healthcare costs of the parties’ two youngest children; .(4)
directed the plaintiff to reimburse the defendant $7,500 toward the total costs
of the trial transcripts. The court also granted a money judgment for arrears
under the stipulation<span style="mso-spacerun: yes;"> </span>in favor of the
plaintiff and against the defendant in the principal sum of $110,000.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division affirmed, as a proper exercise of
discretion, the imputation of income to the defendant for purposes of awarding
maintenance. It held that in computing child support, the Supreme Court
improvidently exercised its discretion by imputing to the plaintiff $62,231.46
in annual income. While the court has considerable discretion in imputing
income, the imputed income figure must be rationally based. Here, the imputed
income amount was entirely speculative, based upon assumptions as to the
plaintiff’s purported investment return from her distributive award,
unsupported by evidence in the record. It was undisputed that the plaintiff
left the workforce over 30 years ago at the defendant’s request. Therefore,
annual income should not have been imputed to the plaintiff in determining
child support. It modified the judgment to direct the defendant to pay the
plaintiff $4,958.33 per month in basic child support for the parties’ youngest
child. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In addition to the defendants’ basic child support
obligation, the Supreme Court directed the defendant to pay his pro rata share
of the costs of the extracurricular activities of the parties’ youngest child,
including summer camp. The Appellate Division held that although such expenses
may be appropriately considered as an “add on expense” for child care the
plaintiff failed to establish an entitlement to child care expenses. Although
the defendant acknowledged that it was in the child’s best interest to attend
summer camp, and, during the marriage, all of the parties’ children attended
summer camp, the child’s standard of living during the marriage was taken into
account in awarding basic child support using the defendant’s income in excess
of the statutory cap. Expenses for extracurricular activities are not
specifically delineated as an “add-on” under the Child Support Standards Act.
It held that the substantial basic child support award should be sufficient to
cover the child’s expenses, including her extracurricular activities.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729212"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The<span style="mso-spacerun: yes;"> </span>court must articulate an explanation of the
basis for its calculation of child support based on parental income in excess
of the statutory cap. Such articulation should reflect a careful consideration
of the stated basis for the court’s exercise of discretion, the parties’
circumstances, and the court’s reasoning.</span></a><span style="mso-bookmark: _Toc100729212;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Moradi v Buhl, .<span style="mso-spacerun: yes;"> </span>--- N.Y.S.3d ----,
2022 WL 221153 (Mem), 2022 N.Y. Slip Op. 00421 (2d Dept.,2022) the parties were
married in 2003, and were<span style="mso-spacerun: yes;"> </span>the parents of
a daughter born in 2004. The plaintiff commenced this action for a divorce in
February 2014. Supreme Court awarded the defendant residential custody of the
child and directed the plaintiff to pay $2,599.58 per month in child support.
The Appellate Division observed that where the combined parental income exceeds
the statutory cap, the court, in fixing the basic child support obligation on
income over the statutory cap, has the discretion to apply the factors set
forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory
percentages, or to apply both (see Domestic Relations Law § 240[1–b][c][3]).
The court must articulate an explanation of the basis for its calculation of
child support based on parental income in excess of the statutory cap. Such
articulation should reflect a careful consideration of the stated basis for the
court’s exercise of discretion, the parties’ circumstances, and the court’s
reasoning why there should or should not be a departure from the prescribed
percentage. It found that the Supreme Court stated that it applied the child
support percentage to the amount above the statutory cap primarily due to the
parties’ considerable income, the needs of the child, and the fact that the
defendant was not seeking any add-on contributions from the plaintiff for the
child’s expenses, other than basic child support. Under the circumstances
presented, the court providently exercised its discretion in applying the child
support percentage to the parties’ income over the statutory cap.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729213"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">The party seeking to overcome
the<span style="mso-spacerun: yes;"> </span>presumption that property acquired
during the marriage is presumed to be marital property has the burden of
proving that the property in dispute is separate property. Testimony which was
not confirmed by any documentary evidence, and found to be incredible did not
meet that burden.</span></a><span style="mso-bookmark: _Toc100729213;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Keren v Keren, --- N.Y.S.3d ----, 2022 WL 221138
(Mem), 2022 N.Y. Slip Op. 00412(2d Dept.,2022) the parties were married on
September 1, 1991. In 2016, the plaintiff commenced this action for a divorce.
At trial, the defendant testified that he owned a percentage interest in
Manhattan Bridge Car Wash, Inc. (MBCW), which was incorporated during the
marriage. MBCW owned a lease to a car wash in Brooklyn, but sold that lease in
2007 and used the proceeds of that sale to purchase a building in Manhattan. In
2016, MBCW sold the building in Manhattan and used the proceeds of that sale to
buy a building in Huntington, which was leased by Walgreens. The defendant
testified that he had no personal responsibility for the Huntington property,
but, as a shareholder of MBCW, he received a portion of the monthly rent from
the Walgreens lease. Supreme Court awarded the plaintiff 50% of the defendant’s
interest in MBCW, and 50% of the defendant’s interest in the Huntington
property in the event the property was ever sold. The defendant appeals.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that Supreme Court did not
improvidently exercise its discretion in awarding the plaintiff 50% of his
interest in MBCW. Property acquired during the marriage is presumed to be
marital property and the party seeking to overcome such presumption has the
burden of proving that the property in dispute is separate property. The
defendant’s brother testified at the trial that he gifted the defendant his
interest in MBCW. However, this assertion was not confirmed by any documentary
evidence, and the Supreme Court found the defendant’s brother’s testimony to be
incredible. Accordingly, the defendant did not meet his burden of establishing
that his interest in MBCW was separate property. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division observed that when both spouses
equally contribute to a marriage of long duration, the division of marital
property should be as equal as possible .Here, both parties were involved with
MBCW during this 25–year marriage, and the equal distribution of the defendant’s
interest was a provident exercise of the Supreme Court’s discretion<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729214"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;">Father’s
disruptive behavior which was grossly disrespectful to the Supreme Court and
precipitated his removal from the virtual courtroom constituted a knowing and
wilful default</span></a><span style="mso-bookmark: _Toc100729214;"></span><span style="text-decoration: none; text-underline: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><span style="color: red;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="font-size: 11pt;">In Matter of Smith v
Bullock, --- N.Y.S.3d ----, 2022 WL 302511 (Mem), 2022 N.Y. Slip Op. 00671 (2d
Dept.,2022) Supreme Court<span style="mso-spacerun: yes;"> </span>granted the
petition of the nonparent Judith Smith for custody of the child on default. The
Appellate Division dismissed the fathers appeal as no appeal lies from an order
that was entered upon the default of the appealing party, except with respect
to matters which were the subject of contest . The record demonstrated that the
father’s disruptive behavior over the course of the proceedings, and
specifically, during a conference on January 27, 2021, was grossly
disrespectful to the Supreme Court and precipitated his removal from the
virtual courtroom. Therefore, it held that the court acted properly in excluding
the father from further participation in the proceedings, as the father’s
conduct was sufficient to constitute a knowing and willful default (citing
Matter of Bartosz B. [Andrzej B.], 187 A.D.3d 894, 896, 134 N.Y.S.3d 45; Matter
of Nyree S. v. Gregory C., 99 A.D.3d 561, 562, 951 N.Y.S.2d 874; Matter of
Kondratyeva v. Yapi, 13 A.D.3d 376, 788 N.Y.S.2d 394; Matter of McConnell v.
Montagriff, 233 A.D.2d 512, 650 N.Y.S.2d 768). The determinations made after
the father was found in default were not subject to direct appellate review
(see CPLR 5511) <o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><span style="background: white; color: #0202f1; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0202f1; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729215"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">A case that involves an
initial custody determination cannot properly be characterized as a relocation
case to which the factors set forth in Matter of Tropea v. Tropea need be
strictly applied</span></a><span style="mso-bookmark: _Toc100729215;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Hochreiter v Williams, --- N.Y.S.3d ----,
2022 WL 262962 (Mem), 2022 N.Y. Slip Op. 00543 (4<sup>th</sup> Dept., 2022) the
Appellate Division held that a case that involves an initial custody
determination, cannot properly be characterized as a relocation case to which
the application of the factors set forth in Matter of Tropea v. Tropea (87
N.Y.2d 727 [1996]) need be strictly applied. Although a court may consider the
effect of a parent’s [proposed] relocation as part of a best interests
analysis, relocation is but one factor among many in its custody determination
The relevant issue is whether it is in the best interests of the child to
reside primarily with the mother or the father.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729216"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">22 NYCRR 202.6 - Request for
judicial intervention Rule Amended Effective February 1, 2022</span></a><span style="mso-bookmark: _Toc100729216;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> to include in subdivision (b)
that a </span></span><span style="mso-bookmark: _Toc100729216;"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">request for
judicial intervention shall be filed, without fee</span></span><span style="mso-bookmark: _Toc100729216;"><span style="font-size: 11pt; mso-bidi-font-weight: normal; text-decoration: none; text-underline: none;"> for an application for a<span style="mso-spacerun: yes;"> </span>“change of sex designation”</span></span><span style="mso-bookmark: _Toc100729216;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="margin-bottom: 22.0pt; margin-left: 0in; margin-right: 6.0pt; margin-top: 12.0pt; margin: 12pt 6pt 22pt 0in;"><span style="font-family: arial;"><b><a name="co_anchor_IF888314158C811EA95E6005056BDB"></a><span style="color: #252525; font-size: 11pt;">Section 202.6. Request for judicial
intervention<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="margin-top: 20pt; text-align: justify; text-justify: inter-ideograph;"><span style="font-family: arial;"><b><a name="co_anchor_I704362503B4F48DAB428836AF3F29"></a><a name="co_anchor_IF88969C058C811EA95E6005056BDB"></a><span style="font-size: 11pt;">(a) At any time after service of process, a party may file a request
for judicial intervention. Except as provided in subdivision (b) of this
section, in an action not yet assigned to a judge, the court shall not accept
for filing a notice of motion, order to show cause, application for <i>ex parte</i>
order, notice of petition, note of issue, notice of medical, dental or
podiatric malpractice action, statement of net worth pursuant to </span><a href="http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000068&cite=NYDRS236&originatingDoc=IC931A9C0825C11EC99698C10682C75AF&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.AlertsClip)"><span style="color: #0e568c; font-size: 11pt; text-decoration: none; text-underline: none;">section
236 of the Domestic Relations Law</span></a><span style="font-size: 11pt;">
or request for a preliminary conference pursuant to section 202.12(a) of this
Part, unless such notice or application is accompanied by a request for
judicial intervention. Where an application for poor person relief is made,
payment of the fee for filing the request for judicial intervention
accompanying the application shall be required only upon denial of the
application. A request for judicial intervention must be submitted, in
duplicate, on a form authorized by the Chief Administrator of the Courts, with
proof of service on the other parties to the action (but proof of service is
not required where the application is <i>ex parte</i>).<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"> <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="margin-top: 10pt; text-align: justify; text-justify: inter-ideograph;"><span style="font-family: arial;"><b><a name="co_anchor_I92C48EC1825C11ECBA6EE4FC5361A"></a><a name="co_pp_a83b000018c76_1"></a><span style="font-size: 11pt;">(b) A
request for judicial intervention shall be filed, without fee, for any
application to a court not filed in an action or proceeding, as well as for a
petition for the sale or finance of religious/not-for-profit property, an
application for change of name or change of sex designation, a habeas corpus
proceeding where the movant is institutionalized, an application under </span><a href="http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000059&cite=NYCPS3102&originatingDoc=IC931A9C0825C11EC99698C10682C75AF&refType=SP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.AlertsClip)#co_pp_7fdd00001ca15"><span style="color: #0e568c; font-size: 11pt; text-decoration: none; text-underline: none;">CPLR
3102(e)</span></a><span style="font-size: 11pt;"> for court assistance
in obtaining disclosure in an action pending in another state, a retention
proceeding authorized by article 9 of the Mental Hygiene Law, a proceeding
authorized by article 10 of the Mental Hygiene Law, an appeal to a county court
of a civil case brought in a court of limited jurisdiction, an application to
vacate a judgement on account of bankruptcy, a motion for an order authorizing
emergency surgery, or within the City of New York, an uncontested action for a
judgment for annulment, divorce or separation commenced pursuant to article 9, </span><a href="http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000068&cite=NYDRS10&originatingDoc=IC931A9C0825C11EC99698C10682C75AF&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.AlertsClip)"><span style="color: #0e568c; font-size: 11pt; text-decoration: none; text-underline: none;">10</span></a><span style="font-size: 11pt;"> or </span><a href="http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000068&cite=NYDRS11&originatingDoc=IC931A9C0825C11EC99698C10682C75AF&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.AlertsClip)"><span style="color: #0e568c; font-size: 11pt; text-decoration: none; text-underline: none;">11
of the Domestic Relations Law</span></a><span style="font-size: 11pt;">,
and an application for an extreme risk protection order.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"> <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="margin-top: 10pt; text-align: justify; text-justify: inter-ideograph;"><span style="font-family: arial;"><b><a name="co_anchor_IF88AA24158C811EA95E6005056BDB"></a><a name="co_pp_4b24000003ba5_1"></a><span style="font-size: 11pt;">(c) In the
counties within the City of New York, when a request for judicial intervention
is filed, the clerk shall require submission of a copy of the receipt of
purchase of the index number provided by the County Clerk, or a written
statement of the County Clerk that an index number was purchased in the action.
Unless otherwise authorized by the Chief Administrator, the filing of a request
for judicial intervention pursuant to this section shall cause the assignment
of the action to a judge pursuant to section 202.3 of this Part. The clerk may
require that a self-addressed and stamped envelope accompany the request for
judicial intervention.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 10pt;"><span style="font-family: arial;">February
1, 2022<o:p></o:p></span></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department
<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729217"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Courts may not direct the sale
of marital property held by spouses as tenants by the entirety, prior to entry
of a judgment altering the legal relationship between spouses, unless the
parties have consented to sell.</span></a><span style="mso-bookmark: _Toc100729217;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Taglioni v Garcia, 200 A.D.3d 44, 157 N.Y.S.3d 7, 2021 N.Y. Slip Op. 05936 (1<sup>st</sup>
Dept.,2022) the Appellate Division reversed an order which ordered the sale of
the marital residence pendente lite. It observed that it is well-settled that,
prior to entry of a judgment altering the legal relationship between spouses by
granting divorce, separation or annulment, courts may not direct the sale of
marital property held by spouses as tenants by the entirety, unless the parties
have consented to sell. Moreover, courts must respect conditions placed on a
party’s consent to the sale of such property, and lack the authority to direct
a sale where those conditions have not been met.<span style="mso-spacerun: yes;"> </span>It found that the record did not reflect a
meeting of the minds and did not contain specific terms sufficient to evince
the wife’s consent to the ordered sale. The record established that, contrary
to the determination of the court below, the parties did not agree to listing
their jointly owned townhouse at $6 million or to the sale of the townhouse.
Although the parties identified targets of their negotiations, neither the wife
nor her counsel ever explicitly agreed to the contemplated sale pendente lite.
As indicated during the parties’ conferences before the court and by the
parties’ competing proposed orders, the wife’s negotiating targets remained at
all times contingent on stipulation of other disputed material terms.
Additionally, the court erred in imposing conditions on the sale of the
property that were not discussed or agreed to on the record, namely, that the
townhouse be listed before the repairs were made, that the price be reduced in
specified amounts at set dates, and that the parties accept a purchase price
offer of 95% or more of the list price.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729218"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">When determining an
appropriate amount of child support, a court should consider the children’s
actual needs and the amount required for them to live an appropriate lifestyle.</span></a><span style="mso-bookmark: _Toc100729218;"></span><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA;
text-decoration:none;text-underline:none'><span style='mso-element:field-begin'></span>
SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span lang=EN-CA
style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA;text-decoration:
none;text-underline:none'><span style='mso-element:field-end'></span></span><![endif]--><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Hepheastou v Spaliaras, 2022 WL
164200 (2d Dept.,2022) the parties were married in May 2013, and had two children.
In June 2016, the plaintiff commenced this action for a divorce. On March 22,
2017, the parties entered into a stipulation which provided that they would
have equal parental access. After trial, by judgment of divorce entered October
13, 2020, the Supreme Court, inter alia, awarded sole residential and legal
custody of the children to the plaintiff, calculated the defendant’s child
support obligation to be $3,072 per month for the two children based upon the
parties’ income in excess of the statutory cap, directed the defendant to pay
50% of the health insurance premiums for the children, directed the defendant
to pay child support arrears, and awarded the plaintiff counsel fees in the sum
of $30,000. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division observed that with respect to
combined parental income exceeding that amount, the court has the discretion to
apply the statutory child support percentage, or to apply the factors set forth
in Domestic Relations Law § 240(1–b)(f) or to utilize “some combination of
th[ose] two” methods. The court must “articulate its reason or reasons for
[that determination], which should reflect a careful consideration of the
stated basis for its exercise of discretion, the parties’ circumstances, and
its reasoning why there [should or] should not be a departure from the
prescribed percentage”. In addition to providing a record explanation for
deviating or not deviating from the statutory formula, a court “must relate
that record articulation” to the factors set forth in Domestic Relations Law §
240(1–b)(f). The factors include a consideration of the financial resources of
the custodial and noncustodial parent, and the standard of living the child
would have enjoyed if the parties had remained together. While the Supreme
Court based its decision to calculate child support on combined parental income
in excess of the statutory cap so as to increase the defendant’s child support
obligation from $1,896.19 per month to $3,072 per month on certain statutory
factors set forth in Domestic Relations Law § 240(1–b)(f), the record did not
support this determination. The court stated that it considered the standard of
living the children would have enjoyed had the household remained intact (see
Domestic Relations Law § 240[1–b][f][3]), as well as the financial resources of
the parties. The record, however, did not demonstrate that the children are not
living in accordance with the lifestyle they would have enjoyed had the
household remained intact. Moreover, when determining an appropriate amount of
child support, a court should consider the children’s actual needs and the
amount required for them to live an appropriate lifestyle. The record
demonstrated that the plaintiff had no extraordinary expenses, lived rent-free
at her parents’ house, reported no child care costs, and reported minimal costs
for education and extracurricular activities. Under these circumstances, it
found it appropriate to apply the statutory percentage to the statutory cap of
$154,000, with no further child support obligation based on the combined income
over that amount.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729219"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Income may be imputed based on
a party’s earning capacity, as long as the court articulates the basis for
imputation and the record evidence supports the calculations.</span></a><span style="mso-bookmark: _Toc100729219;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Nosratabdi v Aroni, 198 A.D.3d 976, 157 N.Y.S.3d 49,
2021 N.Y. Slip Op. 05862 (2d Dept, 2021) the parties were married on August 8,
1999 and there were three children of the marriage. The plaintiff commenced the
action for a divorce on or about June 12, 2013, and both parties agreed to have
the matter heard and determined by a referee. Prior to the start of trial, the
parties stipulated to the custody of the children. The defendant was awarded
sole legal and residential custody of the eldest child, and the plaintiff was
awarded sole legal and residential custody of the two younger children. The
referee imputed an annual income of $80,000 to the defendant and calculated his
monthly child support obligation to the plaintiff for the two younger children
to be $1,666.77. The referee determined the plaintiff’s annual income for
maintenance and child support purposes to be $23,943.31 and her monthly child
support obligation for the eldest child to be $339.12. The referee also awarded
the plaintiff maintenance of $1,500 per month for four years. Additionally, the
referee awarded the marital residence solely to the plaintiff. The Appellate
Division held that the referee’s discretionary determination to impute an
annual income to the defendant of $80,000 for the purpose of calculating child
support and maintenance, based upon the defendant’s prior work experience in
the real estate business, as well as money received from his father, was
supported by the record. However, the referee erred in determining the
plaintiff’s annual income for maintenance and child support purposes to be only
$23,943.31. Here, the referee failed to take into account the plaintiff’s full
ability to provide support, Income may be imputed based on a party’s earning
capacity, as long as the court articulates the basis for imputation and the record
evidence supports the calculations. instead determining her annual income based
solely on a tax return for the 2015 fiscal year, in which the plaintiff had
worked only from May through December. More recent income information was
available from 2016 earnings statements provided by the plaintiff’s employer,
which the referee should have used to estimate the plaintiff’s income for a
full year. It remitted the matter to the Supreme Court for a new determination
of maintenance and child support.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729220"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Property acquired by the
plaintiff after the execution of the separation agreement was separate property
where defendant did not challenge the plaintiff’s testimony that she used
separate funds from an inheritance to pay for the property</span></a><span style="mso-bookmark: _Toc100729220;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Daoud v Daoud, 198 A.D.3d 952, 157
N.Y.S.3d 33, 2021 N.Y. Slip Op. 05849<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11pt;">(2d Dept.,2021) the
parties were married on February 9, 1978. On November 15, 2007, they entered
into a separation agreement, which they filed in Nassau County. In 2015, the
plaintiff commenced this action for a divorce. Supreme Court entered a judgment
of divorce, inter alia, awarding the plaintiff maintenance arrears of
$70,239.91 and awarded the plaintiff real property located in Tabarja, Lebanon
as separate property. The Appellate Division affirmed. It held that the<span style="mso-spacerun: yes;"> </span>Supreme Court correctly determined that the
Tabarja property was the plaintiff’s separate property. The term “marital
property” is defined by statute as “all property acquired by either or both spouses
during the marriage and before the execution of a separation agreement or the
commencement of a matrimonial action” (Domestic Relations Law § 236[B][1][c]).
Here, it was undisputed that the Tabarja <a name="_Hlk94076710">property was
acquired by the plaintiff after the execution of the separation agreement in 2007,
and the defendant did not challenge the plaintiff’s testimony that she used
separate funds from an inheritance to pay for the Tabarja property</a>.
Moreover, the separation agreement specifically provided that “[e]ach party
shall hereafter own independently of any claim or right of the other party, all
of the items of real property to which he or she now or hereafter shall have
legal title.”</span> <span style="mso-tab-count: 1;"> </span><span style="background: white; color: #0202f1; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><strong><span style="background: white; color: #0202f1; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Third Department <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729221"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Summary judgment is an
appropriate vehicle for resolving family offense “proceedings where no triable
issues of fact exist</span></a><span style="mso-bookmark: _Toc100729221;"></span><span style="font-size: 11pt; mso-ansi-language: EN-CA; text-decoration: none; text-underline: none;"> </span><span lang="EN-CA" style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Stephanie R v Walter Q, --- N.Y.S.3d ----,
2022 WL 119510, 2022 N.Y. Slip Op. 00219 (3d Dept.,2022) a family offense
proceeding the Appellate Division held that Summary judgment is an appropriate
vehicle for resolving family offense “proceedings where no triable issues of
fact exist. Collateral estoppel comes into play when four conditions are
fulfilled:(1) the issues in both proceedings are identical, (2) the issue in
the prior proceeding was actually litigated and decided, (3) there was a full
and fair opportunity to litigate in the prior proceeding, and (4) the issue
previously litigated was necessary to support a valid and final judgment on the
merits. (Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29
N.E.3d 215 [2015])<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><a name="_Toc100729222"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">Family Court lacks authority
to order a child protective agency, such as DSS, to commence a neglect
proceeding against a parent</span></a><span style="mso-bookmark: _Toc100729222;"></span><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Donald QQ v Stephanie RR, 198 A.D.3d 1155,
156 N.Y.S.3d 467, 2021 N.Y. Slip Op. 05760 (3d Dept.,2021) a custody proceeding
commenced to modify a prior order of custody the Appellate Division reversed an
order of the Family Court which sua sponte directed the Department of Social Services
(DSS) to commence neglect proceeding against the mother and father. The
Appellate Division held that Family Court lacks authority to order a child
protective agency, such as DSS, to commence a neglect proceeding against a
parent; abrogating Matter of Gage II, 156 A.D.3d 1208 and Matter of Johnson v.
Johnson, 279 A.D.2d 814, and in the absence of any express grant of authority
by statute, Family Court erred in sua sponte directing DSS to commence a
neglect proceeding against father and mother. Family Court is a court of
limited jurisdiction that cannot exercise powers beyond those granted to it by
statute. The relevant statute provides that a proceeding under Family Ct Act
article 10 may be “originate[d]” either by “a child protective agency” or “a person
on the court’s direction” (Family Ct Act § 1032[a], [b]).That authority is
limited to directing only a “person” to do so, which DSS is not. <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: black; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><a name="_Hlk91662421"><strong><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></a></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk91662421;"><span style="font-size: 10pt; text-decoration: none; text-underline: none;">January 16,
2022</span></span><span style="mso-bookmark: _Hlk91662421;"><strong><span style="background: white; color: #f0210b; text-decoration: none;"> <o:p></o:p></span></strong></span></span></h1>
<h1 style="line-height: normal;"><span style="mso-bookmark: _Hlk91662421;"><strong><span style="background: white; color: #f0210b; text-decoration: none;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></span></h1>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><strong><span style="background: white; color: #f0210b; font-size: 11pt;"><span style="font-family: arial;">Court Rules<o:p></o:p></span></span></strong></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><strong><span style="background: white; color: #0202f1; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></span></p>
<h1 style="line-height: normal;"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk91662421;"><a name="_Toc100729223"><span style="font-size: 11pt; text-decoration: none; text-underline: none;">22 NYCRR 202.5-c Electronic Document Delivery System (new)</span></a></span><span style="mso-bookmark: _Toc100729223;"></span><span style="mso-bookmark: _Hlk91662421;"><span style="font-size: 11pt; text-decoration: none;"><o:p></o:p></span></span></span></h1>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">The Chief Administrator promulgated<span style="mso-spacerun: yes;"> </span>new section 202.5-c of the Uniform Civil
Rules for the Supreme and County Courts, effective immediately, to read as
follows: <o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">§ 202.5-c. Electronic Document Delivery System. <o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">(a) Court documents may be transmitted to the courts
of the unified court system by means of the electronic document delivery system
(“EDDS”) only to the extent and in the manner provided in this section. For
purposes of this section, “clerk of the court” shall mean the county clerk
where the court is the Supreme Court or a County Court, and the chief clerk of
the court where it is any other court. <o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">(b) How to use the EDDS. In order for a party to a
court action or proceeding to use the EDDS to transmit one or more court
documents to a court, such party must: (1) have use of a computer or other
electronic device that permits access to the Internet, an email address and
telephone number, and a scanner to digitize documents or some other device by
which to convert documents into an electronically transmissible form; and (2)
access a web site provided by the UCS for the transmission of the document(s)
by the EDDS and, using that web site: (i) select a court to be the recipient of
the document(s) and, where the Chief Administrator has authorized use of the
EDDS for the filing of documents in an action or proceeding and the party is
using the EDDS for such purpose, so indicate, (ii) enter certain basic
information about the action or proceeding; (iii) upload the document(s)
thereto in pdf or some other format authorized by the Chief Administrator of
the Courts; and (iv) if a fee is required for the filing of the document(s),
follow the on-line instructions for payment of that fee. <o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">(c) When may the EDDS be used. The EDDS may be used
for the transmission of documents in such courts and in such classes of cases,
and for such purposes including the filing thereof with a court, as may be
authorized by order of the Chief Administrator. Notwithstanding any other
provision hereunder: (1) a party may not use the EDDS to transmit documents in
a court action or proceeding in a court in a county in which consensual or
mandatory e-filing is available in such an action or proceeding, except that
EDDS may be used in such a county for the purpose of (i) converting a pending
action to e-filing in accordance with section 202.5-b(2)(iv) of these rules,
(ii) transmitting exhibits for a conference, hearing, or trial; or (iii) any other
use as may be authorized by the Chief Administrator; (2) unless the Chief
Administrator shall otherwise provide as to a particular court or class of
cases, a party may only use the EDDS for the transmission of documents for a
purpose other than for filing in an action or proceeding; (3) where the Chief
Administrator authorizes use of the EDDS for the transmission of documents for
filing with a court in an action or proceeding, any such documents shall not be
deemed filed until the clerk of such court or his or her designee shall have
reviewed the documents and determined (i) that they are complete, (ii) that any
fee that is required before the documents may be filed has been paid, (iii)
that the documents include proof of service upon the other party or parties to
the action or proceeding when proof of service is required<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><strong><span style="background: white; color: #0202f1; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk91662421;"><strong><span style="background: white; color: #0202f1; font-size: 11pt;"><span style="font-family: arial;">December 16, 2021<o:p></o:p></span></span></strong></span></p>
<span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk91662421;"></span>
</b></span><p class="MsoNormal"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 10pt; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="background: white; color: red; font-size: 11pt;">Appellate Division, First Department</span><span style="background: white; color: red; font-size: 11pt;"><br />
<br />
</span><a name="_Hlk90459838"><span style="mso-spacerun: yes;"> </span></a><!--[if supportFields]><span
style='mso-bookmark:_Hlk90459838'></span><span style='mso-element:field-begin'></span><span
style='mso-bookmark:_Hlk90459838'><span lang=EN-CA style='font-family:"Times New Roman",serif;
mso-ansi-language:EN-CA'><span style='mso-spacerun:yes'> </span>SEQ CHAPTER \h
\r 1</span></span><![endif]--><span style="mso-bookmark: _Hlk90459838;"></span><!--[if supportFields]><span
style='mso-bookmark:_Hlk90459838'></span><span style='mso-element:field-end'></span><![endif]--><span style="mso-bookmark: _Hlk90459838;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk90459838;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Family offense of aggravated harassment in
second degree based on Penal Law § 240.30(1)(a) as it existed before amendment
in 2014 vacated where statute unconstitutional<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk90459838;"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk90459838;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Giovanni De M v Nick W., --- N.Y.S.3d ----, 2021 WL 5893750 (Mem),
2021 N.Y. Slip Op. 06947(1<sup>st</sup> Dept.,2021) the Appellate Division held
that the determination that respondent committed the family offense of
aggravated harassment in the second degree based on Penal Law § 240.30(1)(a) as
it existed before amendment in July 2014 had to be vacated because the statute
was held to be unconstitutionally vague (see People v. Golb, 23 N.Y.3d 455,
466–467 [2014]) <o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk90459838;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk90459838;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk90459838;"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Termination of eligibility for cash public
assistance during the pendency of the support proceeding did not eliminate
Family Court’s jurisdiction over the petition seeking support<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk90459838;"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: black;"><o:p></o:p></span></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk90459838;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In Matter of Commissioner of Social Services on behalf
of Karla M. Assignor v Omar G.,<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk90459838;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">--- N.Y.S.3d ----, 2021 WL 5893751, 2021 N.Y. Slip Op.
06956(1<sup>st</sup> Dept., 2021) the DSS filed a petition seeking support for
the child from respondent father. At the time the petition was filed, the child
was receiving cash public assistance and Medicaid benefits. The petition
requested an order of support payable to DSS or, in the event assignment to DSS
ended, to the mother. It also requested a health insurance order. Cash public
assistance for the child ended on January 31, 2020. The child’s Medicaid
benefits remained active through January 2021. When the petition came before
the Support Magistrate on February 11, 2020, the Magistrate dismissed the
petition on the ground that Family Court lacked subject matter jurisdiction
over DSS’s claims because DSS sought only retroactive support and health
insurance costs. DSS objected to the order of dismissal, and Family Court
denied the objection. The Appellate Division reversed and vacated the
dismissal. It found that<span style="mso-spacerun: yes;"> </span>DSS properly
filed its child support petition while the child was still receiving cash
public assistance, and Family Court had jurisdiction to determine the petition.
After a child support petition is filed, the Family Court is required pursuant
to section 434 of the Family Court Act, to “make an order for temporary child
support pending a final determination, in an amount sufficient to meet the
needs of the child, without a showing of immediate or emergency need”. The
temporary order should have continued after the child became ineligible for
cash assistance, pending a final determination (see Family Court Act §§ 435[b];
443; 571[3][a]). If not for Family Court’s adjournments, a temporary support
order would have been issued before the child’s cash public assistance ended.
The termination of eligibility for cash public assistance during the pendency
of the proceeding did not eliminate Family Court’s jurisdiction over the
petition seeking support and health insurance costs (Friedlander v.
Friedlander, 244 A.D.2d 812, 666 N.Y.S.2d 257 [3d Dept. 1997]; see also Matter
of Broome County Dept. of Social Servs. v. Kelley, 125 A.D.3d 1187, 4 N.Y.S.3d
617 [3d Dept. 2015]; Matter of Oneida County Dept. of Social Servs. v.
Christman, 125 A.D.3d 1409, 3 N.Y.S.3d 222 [4th Dept. 2015]).<o:p></o:p></span></span></b></span></p>
<span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk90459838;"></span>
</b></span><p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><strong><span style="background: white; color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></strong></p>
<p class="MsoNormal"><span style="color: black;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Disputes
concerning child custody and visitation are not subject to arbitration </span><span style="color: red; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="color: red; font-size: 11pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In Matsui v Matsui, ---
N.Y.S.3d ----, 2021 WL 5816535 (Mem), 2021 N.Y. Slip Op. 06843 (2d Dept.,2021)
the Appellate Division held that the Supreme Court erred in declining to
exercise jurisdiction over the parties’ custody/parental access disputes on the
basis that their stipulation of settlement, which was incorporated but not
merged into their judgment of divorce, contained an arbitration clause (see
Matter of Goldberg v. Goldberg, 124 A.D.3d 779, 780, 1 N.Y.S.3d 360; Schechter
v. Schechter, 63 A.D.3d 817, 881 N.Y.S.2d 151; Glauber v. Glauber, 192 A.D.2d
94, 98, 600 N.Y.S.2d 740). Disputes concerning child custody and visitation are
not subject to arbitration as the court’s role as parens patriae must not be
usurped.<span style="color: black;"><o:p></o:p></span></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Termination
after a hearing pursuant to Family Court Act § 1027 should not be disturbed
unless it lacks a sound and substantial basis in the record.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="color: black;"><o:p></o:p></span></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Kai’ere D., --- N.Y.S.3d ----,
2021 WL 5816560 (Mem), 2021 N.Y. Slip Op. 06845 (2 Dept.,2021) the Appellate
Division observed that at a hearing pursuant to Family Court Act § 1027,
temporary removal is authorized only where the court finds it necessary to
avoid imminent risk to the child’s life or health. There must be a showing of
‘near or impending’ imminent danger, ‘not merely possible’ danger to the child.
Its determination in this regard should not be disturbed unless it lacks a
sound and substantial basis in the record.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Trial court did
not err in taking judicial notice of wife’s statement of net worth and its
attachments which had been filed with the court, but were not admitted into
evidence at trial, in awarding the husband an equitable share of her pension
and retirement accounts. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Garcia v Garcia, --- N.Y.S.3d ----,
2021 WL 5621987 (Mem), 2021 N.Y. Slip Op. 06674 (2d Dept.,2021) the<span style="mso-spacerun: yes;"> </span>marital residence was an apartment purchased
by the plaintiff in July 2001, approximately two months prior to the date of
the marriage. The defendant lived with the plaintiff in the marital residence
for most, if not all, of the period from the date of the marriage until 2005,
when the defendant relocated to the Philippines. The plaintiff commenced the
action for a divorce in August 2010. The Appellate Division held that Supreme
Court properly determined that the marital residence was the plaintiff’s
separate property, since she purchased the apartment prior to the
marriage.<span style="mso-spacerun: yes;"> </span>It observed that any
appreciation in the value of separate property due to the contributions or
efforts of the nontitled spouse will be considered marital property. However,
there was no evidence that the marital residence appreciated in value from any
factor other than market forces. Therefore, the appreciation remained separate
property.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
awarding the defendant an equitable share of the plaintiff’s pension and
retirement accounts, the court relied upon the plaintiff’s statement of net
worth with attached documents, which were not admitted into evidence at trial.
The Appellate Division found that there was no merit to the plaintiff’s claim
that the court erred in taking judicial notice of her statement of net worth
and its attachments, which had been filed with the court (see Baumgardner v.
Baumgardner, 98 A.D.3d 929, 931, 951 N.Y.S.2d 64). Plaintiff’s challenge to
this award was without merit.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Generally, it is
the responsibility of both parties to maintain the marital residence during the
pendency of a matrimonial action. Where defendant had exclusive occupancy
during the pendency of the action proper to award plaintiff half of the marital
funds the defendant used to pay the carrying costs of the marital residence.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Palazolo v Palazolo, --- N.Y.S.3d ----, 2021 WL
5622008, 2021 N.Y. Slip Op. 06696(2d Dept.,2021) the parties were married on
June 22, 1991. The plaintiff commenced the action for a divorce on February 4,
2011. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division pointed out that the proceeds of
an inheritance are separate property. However, where separate property has been
commingled with marital property, for example in a joint bank account, there is
a presumption that the commingled funds constitute marital property. A party
may overcome the presumption by presenting sufficient evidence that the source
of the funds was separate property. Although the shares of stock the plaintiff
inherited from her mother were placed in an investment account which also
contained marital assets, the plaintiff sufficiently traced the source of the
majority of those shares which listed a purchase date of either August 17,
2001, or August 6, 2002, to her inheritance, so as to rebut the presumption
that those shares were marital property. The use of interest and dividends
accrued on those shares for marital purposes did not transmute the shares
themselves into marital property . However, the evidence revealed a discrepancy
in the investment account statements with regard to certain shares of stock,
which listed an August 17, 2001, purchase date, but could not have been part of
the plaintiff’s inheritance. Due to this discrepancy, the plaintiff met her
burden of tracing only 1,703 shares of the stock to her inheritance and the
court should have awarded the plaintiff only 1,703 shares of the<span style="mso-spacerun: yes;"> </span>stock as her separate property, and should
have divided the remaining 838 shares of the<span style="mso-spacerun: yes;">
</span>stock equally between the parties.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division noted that generally, it is the
responsibility of both parties to maintain the marital residence during the
pendency of a matrimonial action. The defendant had exclusive occupancy of the
marital residence throughout the proceedings, and he used marital funds to pay
the carrying costs of the marital residence, including taxes, insurance, common
charges, and utilities. However, pursuant to an agreement, the parties had each
received identical sums from their joint account to cover their household
expenses during the proceedings. The defendant’s expenditures for the carrying
costs of the marital residence were in addition to the funds he had already
received pursuant to that agreement. Under these circumstances, the Supreme
Court providently exercised its discretion in awarding the plaintiff $70,000,
representing half of the marital funds the defendant used to pay the carrying
costs of the marital residence.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that Supreme Court properly
awarded the plaintiff half of the defendant’s New York State Teacher’s
Retirement System pension benefits which were earned during the marriage prior
to commencement of this action. The fact that the defendant’s former wife
received a portion of the defendant’s pension benefit, pursuant to a qualified
domestic relations order entered in connection with his prior divorce, does not
diminish the marital portion of the defendant’s pension benefit, or the plaintiff’s
entitlement to a share of the benefits earned during the marriage.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Divison, Third Department<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Unjust and
inappropriate to penalize the wife in making a maintenance award, for making
the decision to earn significantly less money for the same reason as the
husband. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Where both
parties violated the automatic orders to pay off debts, pay taxes, cover
everyday expenses and pay legal fees Supreme Court properly canceled out each
party’s alleged wasteful dissipation of the assets in coming to its
determination on equitable distribution.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='font-family:
"Times New Roman",serif;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='font-family:"Times New Roman",serif;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Harris v Schreibman, --- N.Y.S.3d ----, 2021 WL
5701812, 2021 N.Y. Slip Op. 06724 ( 3d Dept.,2021) Plaintiff ( wife) and
defendant (husband) were married in September 2004 and had three children
together – one born in 2008 and twins born in 2010. The parties’ marital
relationship informally ended in 2012, but they elected to defer formal divorce
proceedings and continued to share a residence and co-parent their children.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Supreme Court awarded the wife, pursuant to the statutory
guidelines, maintenance of $1,963.92 monthly, or $23,567 annually, for a
duration of 3 years and 10 months. The court explicitly stated that it
considered that factors in Domestic Relations Law § 236(B)(6)(e) and declined
to deviate from the guidelines. Although the wife was earning substantially
less money than she did in her previous employment, she lost her job through no
fault of her own and was reluctant to take a position that would require her to
commute into New York City or travel a lot, taking her away from the children.
The husband testified that this was the same reason that he ran for a judgeship
to which he was elected, a position that paid less than half of what he was
previously earning while working as a partner in a New York City law firm. The
Appellate Division held that it seemed unjust and inappropriate to penalize the
wife for making the decision to earn significantly less money for the same
reason as the husband. Additionally, although the wife was arguably
self-sufficient, the court properly considered the standard of living that the
parties established during the marriage in determining that the maintenance
award was not unjust or inappropriate. It saw no abuse of discretion in Supreme
Court awarding the wife maintenance in accordance with the statutory
guidelines. Nor did it discern any abuse of discretion in Supreme Court
ordering maintenance for 3 years and 10 months, which is the maximum length of
time under the advisory schedule (see Domestic Relations Law §
236[B][6][f][1]). Because the court provided a reasoned analysis of the factors
it ultimately relied upon in awarding maintenance and setting its duration, it
declined to disturb the maintenance award. The Appellate Division found that
both parties substantially reduced their income to be able to spend more time
with their children. As determined by the court, neither party reduced
resources or income in order to reduce or avoid the parties obligation for
maintenance. Thus, the court did not err in declining to impute income based
upon the wife’s prior earnings.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that<span style="mso-spacerun: yes;"> </span>Supreme Court erred in failing to require the
wife to contribute to the cost of the children’s health insurance and in
failing to prorate each party’s share of the premiums as required by the Child
Support Standards Act. The Child Support Standards Act provides that,“[T]he
cost of providing health insurance benefits shall be prorated between the
parties in the same proportion as each parent’s income is to the combined
parental income” (Domestic Relations Law § 240[1–b][c][5][ii]). “If the
non-custodial parent is ordered to provide such benefits, the custodial
parent’s pro rata share of such costs shall be deducted from the basic support
obligation” (Domestic Relations Law § 240[1–b][c][5][ii]). Although Supreme
Court failed to deduct the husband’s pro rata share of the health insurance
from the basic child support obligation, the record was sufficient to allow it
to adjust the child support accordingly.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The husband contended that Supreme Court erred in
treating a<span style="mso-spacerun: yes;"> </span>$50,000 given to the parties
by the wife’s mother as a loan and in granting the wife a $25,000 credit. “[I]t
is well settled under the common law of this [s]tate that a party claiming that
a transfer is a gift has the burden of proof by clear and convincing evidence
that the gift was made with the requisite donative intent”. The evidence showed
that the wife’s mother did not intend to be repaid the $50,000 and, even if she
did, her intent was for those payments to go into 529 accounts for the
children, not to receive them as cash payments. Accordingly, Supreme Court
erred in determining that the parties were responsible for repaying the loan to
the wife’s mother and awarding the wife a $25,000 credit from the husband for
the payment.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Both parties argued that Supreme Court wrongly concluded
that they violated the automatic stay orders and, at the same time each
maintains that the other party wastefully dissipated marital property by
violating them. The Appellate Division found that Supreme Court properly
concluded that when the husband transferred $38,000 in cash to pay off campaign
debts, he directly controverted the automatic order set forth in Domestic
Relations Law § 236(B)(2)(b)(1). Similarly, the wife did not have the husband’s
written consent to remove money from her retirement accounts to pay off debts
(see Domestic Relations Law § 236[B][2][b][2]). Supreme Court properly
concluded that both the husband and the wife violated the automatic orders. As
for the wife’s use of the severance payment, the court properly declined to
consider this wasteful dissipation of marital property because she used those
funds for renovations to the marital residence, where both parties resided,
food, outings with the children and other living expenses. However, it was
clear from the testimony that, despite violating the automatic orders, the
parties did so to pay off debts, pay taxes, cover everyday expenses and pay
legal fees. As such, Supreme Court properly canceled out each party’s alleged
wasteful dissipation of the assets in coming to its determination on equitable
distribution.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Third Department
holds that considering the mother’s extensive participation in the proceeding
the order which granted the father custody upon<span style="mso-spacerun: yes;">
</span>default in her appearing for a Lincoln hearing scheduled during the
trial of this matter was not a default situation.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Patrick UU v Frances W, 2021 WL 5701826 (3d
Dept.,2021) the mother appealed from an order which granted the father custody
upon her default in appearing for a Lincoln hearing scheduled during the trial
of this matter. The father and the AFC argued that the appeal must be dismissed
because the order was properly entered on the mother’s default. The Appellate
Division held that considering the mother’s extensive participation in the
proceeding, this was not a default situation (citing Matter of Amanda I. v.
Michael I., 185 A.D.3d 1252, 1253–125 [2020]; Matter of Leighann W. v. Thomas
X., 141 A.D.3d 876, 877 [2016]). The mother made an opening statement,
extensively cross-examined the father, whose testimony extended over the first
three days of the hearing, partially completed cross-examination of the child’s
teacher and filed a written summation. She made numerous objections during the
hearing and offered several exhibits into evidence. Despite her failure to
appear on March 6, 2020, it<span style="mso-spacerun: yes;"> </span>concluded
that the order was not entered on default and that the mother’s appeal may be
heard. That said, the record confirmed that the mother was on clear notice that
the hearing would resume on March 6, 2020. By failing to appear or otherwise
alert Family Court that she would be unable to attend that day, the court acted
within its discretion in closing the proof. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division<span style="mso-spacerun: yes;">
</span>agreed with Family Court’s finding that a change in custody was in the
child’s best interests.<span style="mso-spacerun: yes;"> </span>It found no
abuse of discretion in Family Court drawing a negative inference against the
mother for failing to bring the child to the rescheduled Lincoln hearing. A
parent served with an order to produce a child for a Lincoln hearing is
obligated to comply and may not simply ignore the court’s directive. A Lincoln
hearing serves the vital purpose of allowing a court to ascertain a child’s
preference and concerns, as well as corroborating information obtained during
the fact-finding hearing. By failing to cooperate, the mother undermined the
court’s opportunity to obtain this information. The mother’s failure was
particularly troubling given that the AFC confirmed that the child was willing
to participate. It found no error with the court drawing a negative inference
to the extent that the child would have confirmed his attorney’s stated
position that he wished to return to school and spend more time with his
father.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Family Court <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Family Court
holds that a<span style="mso-spacerun: yes;"> </span>“best interests” standard
applies </span></b><b><span style="color: red; font-size: 10.5pt;">to a
non-respondent parent's request for release under Article 10-A of the Family
Court Act.</span></b><b><span style="color: red; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="color: black; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Matter of John
A, --- N.Y.S.3d ----, 2021 WL 5753931, 2021 N.Y. Slip Op. 21326 (Fam Ct, 2021)
Family court observed that Family Court Act §§ 1035(d), 1052(a)(ii), and 1054
were amended in 2015 to authorize the dispositional alternative of a release of
the subject child to a non-respondent parent. Family Court Act Article 10-A was
not similarly amended. The word “release” or the phrase “release to a
non-respondent parent” does not appear anywhere in Family Court Act § 1089, the
primary section governing permanency hearings. However, because permanency
hearings have been held to constitute “phases” of the dispositional
proceedings, the dispositional option of a release to a non-respondent parent
must be a valid disposition at a permanency hearing. In re Demetria FF., 140 A.D.3d
1388, 1390, 33 N.Y.S.3d 570 [3d Dept. 2016]. In Matter of Elizabetta C., 60
Misc. 3d 603, 78 N.Y.S.3d 660 [Fam. Ct., 2018], the Court held, that once a
parent intervenes in an article 10 action, the court may not place the child
without the intervening parent’s consent, unless the party advocating placement
demonstrates that the intervening parent is unfit to provide proper care for
the child or that some other type of extraordinary circumstances exist. In
Matter of Sabrina M.A., 195 A.D.3d 709, 145 N.Y.S.3d 376 [2d Dept. 2021]<span style="mso-spacerun: yes;"> </span>the non-respondent father appealed from a
permanency hearing order which continued the subject child’s placement, arguing
that “there was no showing that he is unfit or other extraordinary
circumstances and the court should have immediately released the child to his
care.” The Second Department held that the “best interests” of the child
standard is applicable to the father’s request for a release of the subject
child and that the non-respondent’s fitness would be a “primary factor” among
others. Because the Third Department has not addressed the issue, the Court
applied the law in Matter of Sabrina M.A., and applied<span style="mso-spacerun: yes;"> </span>a “best interests” standard to the facts of
the present case.</span><o:p></o:p></span></b></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-26380367765034854642021-11-27T09:26:00.002-05:002021-11-27T09:26:42.279-05:00Recent Decisions and Legislation<div><b><span style="font-family: arial;"> November 24, 2021</span></b></div><div><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Family Court could exercise subject matter jurisdiction in this family offense proceeding notwithstanding that the offenses occurred out of state<br /></span></b><span style="white-space: pre;"><b><span style="font-family: arial;"> <br /></span></b></span><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Phillip D.S. --- N.Y.S.3d ----, 2021 WL 5364714, 2021 N.Y. Slip Op. 06460 (1st Dept.,2021) the Appellate Division held that Family Court could exercise subject matter jurisdiction in this family offense proceeding notwithstanding that the offenses occurred out of state (see Opportune N. v. Clarence N., 110 A.D.3d 430, 430–431, 972 N.Y.S.2d 245 [1st Dept. 2013]; Matter of Jose M. v. Angel V., 99 A.D.3d 243, 246, 951 N.Y.S.2d 195 [2d Dept. 2012]).</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Argument that the father failed to establish a change in circumstances waived where mothers petition alleged that there had been such a change in circumstances’</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Allison v Seeley-Seek, --- N.Y.S.3d ----, 2021 WL 5410024, 2021 N.Y. Slip Op. 06524 (4th Dept.,2021) a proceeding to modify a prior custody order the Appellate Division rejected the mother’s argument that the father failed to establish a change in circumstances sufficient to warrant an inquiry into whether a modification of the prior order is in the best interests of the children. It held that she waived that contention “ ‘inasmuch as [she] alleged in her own ... petition[s] that there had been such a change in circumstances’ ” (Fowler, 198 A.D.3d at ––––, ––– N.Y.S.3d ––––, 2021 N.Y. Slip Op. 05436).</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">November 17, 2021<br /></span></b><b><span style="font-family: arial;"> <span style="white-space: pre;"> <br /></span></span></b><b><span style="font-family: arial;">A court may grant relief that is warranted by the facts plainly appearing on the motion papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> In Trazzera v Trazzera, --- N.Y.S.3d ----, 2021 WL 5226238, 2021 N.Y. Slip Op. 06208 (2d Dept.,2021) the parties stipulation of settlement dated December 31, 2018 which was incorporated in their September 19, 2019 judgment of divorce provided for joint legal custody of their child, joint decision-making authority, and the defendant having residential custody of the child, subject to the plaintiff’s parental access.. The Appellate Division held that Supreme Court erred by, in effect, granting, without a hearing, defendant’s motion which was to modify the parties’ stipulation of settlement and judgment of divorce to award her sole legal custody of the child to the extent of awarding her final decision-making authority as to any major child-related issue about which the parties could not agree, and denying plaintiff’s cross motion to modify the stipulation of settlement and judgment of divorce so as to award him sole legal custody. A court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party. Although the plaintiff contended that the court ruled sua sponte, the court had before it motions by both parties seeking sole legal custody. The award of final decision-making authority was not “dramatically unlike” the relief requested, as decision making is part and parcel to legal custody. However, the court erred in granting this award without a hearing. It remitted the matter to the Supreme Court for a hearing .</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> <span style="white-space: pre;"> </span> <span style="white-space: pre;"> <br /></span></span></b><b><span style="font-family: arial;">A parent seeking custody or contesting a substantial infringement of her right to custody must be advised “before proceeding that she has the right to be represented by counsel of her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the where she is financially unable to obtain the same<br /></span></b><span style="white-space: pre;"><b><span style="font-family: arial;"> <br /></span></b></span><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Wondemagegehu v Edem, --- N.Y.S.3d ----, 2021 WL 5226212 (Mem), 2021 N.Y. Slip Op. 06213(2d Dept.,2021) the parties were married in 2005, and had two children. In 2014, the plaintiff commenced the instant action for a divorce. Throughout this highly contested action, the parties engaged in extensive motion practice and appeared on multiple occasions before the Supreme Court, resulting in the issuance of several orders, oral rulings, and a judgment of divorce. The Supreme Court(1) directed the defendant to pay the plaintiff maintenance of $1,438.82 per month for 36 months, (2) awarded the plaintiff sole legal and residential custody of the parties’ two children, with certain parental access to the defendant, and (3) directed the defendant to pay the plaintiff child support of $1,774.67 per month.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division pointed out that the parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child must be advised “before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same. A party may waive the right to counsel, provided he or she makes a knowing, voluntary, and intelligent waiver of that right. Here, the Supreme Court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se with regard to the hearing and determination of the defendant’s motions to modify and/or vacate the custody order. It modified the judgment of divorce by deleting the provision thereof awarding the plaintiff sole legal and residential custody of the children, without regard to the merits of the defendant’s position, and remitted the matter to the Supreme Court, for a determination of whether the defendant wishes to waive his right to counsel, the assignment of counsel if warranted, a new hearing and a new determination. It affirmed the support awards. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Generally, a process server’s affidavit of service establishes a prime facie case as to the method of service and, therefore, gives rise to a presumption of proper service</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">In Matter of Reyes v Munoz, --- N.Y.S.3d ----, 2021 WL 5226157 (Mem), 2021 N.Y. Slip Op. 06176(2d Dept.,2021) the parties were the parents of a child, who was born in December 2009. In October 2019, the mother filed a petition seeking custody of the child. The mother submitted an affidavit from a process server, accompanied by an affidavit of translation, attesting that the process server recognized the father personally, and on the process server’s third attempt, delivered the custody petition, motion for special findings, and notice of next court date to the father in Honduras. Family Court dismissed the petition for lack of jurisdiction over the father. The Appellate Division reversed and remitted for a hearing. It pointed out that Service without New York State may be made in the same manner as service is made within the state (see Domestic Relations Law § 75–g[1][a]; CPLR 313). Proof of service outside the state shall be by affidavit of the individual who made the service. (Domestic Relations Law § 75–g[2]). Generally, a process server’s affidavit of service establishes a prime facie case as to the method of service and, therefore, gives rise to a presumption of proper service. It held that the affidavit of service of the mother’s process server constituted prima facie evidence of proper service of the custody petition on the father. The record did not contain a sworn denial by the father of receipt of service with specific facts to rebut the statements in the process server’s affidavit. Therefore, no hearing on the validity of process of service was necessary and the Family Court should not have dismissed the petition.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Although the mother did not specifically seek an upward modification based on an increase in the father’s income by 15% or more, it was proper to modify the father’s child support obligation on this basis, as the parties declined to opt out of Family Court Act § 451(3)(b).</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Giraldo v Fernandez, --- N.Y.S.3d ----, 2021 WL 5226159, 2021 N.Y. Slip Op. 06170(2d Dept.,2021) the parties September 6, 2013, a stipulation regarding child support was incorporated in to their February 7, 2014, judgment of divorce but did not merge. The judgment of divorce provided: “Each party has the right to seek a modification of the child support order upon a showing of (I) a substantial change in circumstances, or (II) that three years have passed since the order was entered, last modified or adjusted, or (III) there has been a change in either party’s gross income by 15 percent or more since the order was entered, last modified or adjusted; however, if the parties have specifically opted out of subparagraphs (II) or (III) of this paragraph in a validly executed agreement or stipulation, then that basis to seek modification does not apply. The parties have not elected to opt[ ] out of subparagraphs (II) or (III).” On May 23, 2019, the mother filed a petition in the Family Court, Nassau County, for an upward modification of the father’s child support obligation pursuant to the terms of the judgment of divorce. She alleged a change in circumstances in that the father “makes more money, our son is older and requires more.” She further alleged that “[t]he parties have not specifically agreed otherwise in a validly executed agreement or stipulation and three years have passed since the order was entered, last modified or adjusted.” In support of her petition, the mother submitted the father’s 2018 federal tax return, which demonstrated that the father’s total income was $117,316, a substantial increase from his $45,000 annual income at the time the stipulation was entered.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>After a hearing, in a fact-finding order dated March 13, 2020, the Support Magistrate found that the mother “has met her burden of proving a substantial change in circumstances” in that the father’s income has increased by at least 15% since the entry of the judgment of divorce. The Support Magistrate determined that the mother and father have a respective child support obligation of 46% and 54%, and modified the father’s child support obligation to $522.55 biweekly. The father filed objections to the Support Magistrate’s order. Her alleged that the order granted relief based on a cause of action never alleged by the mother and granted relief that was not requested or supported by the record, and the support obligation was unjust and inappropriate. Family Court denied the father’s objections. The Appellate Division affirmed. It noted that 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” (Family Ct Act § 451[3][a]). Additionally, unless the parties have specifically opted out, “[s]ection 451 of the Family Court Act permits a court to modify an order of child support where (1) either party’s gross income has changed by 15% or more since the order was entered or modified, or (2) three years or more have passed since the order was entered, last modified, or adjusted” (Family Ct Act § 451[3][b][I], [ii]). Although the mother did not specifically seek an upward modification based on an increase in the father’s income by 15% or more, it was proper for the Support Magistrate to modify the father’s child support obligation on this basis, as the parties declined to opt out of Family Court Act § 451(3)(b). In any event, the mother demonstrated a substantial change in circumstances and that three years had passed since the order was entered, last modified, or adjusted, warranting an upward modification of the father’s child support obligation. A substantial change in circumstances may be measured by comparing the parties’ financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued. The mother demonstrated her entitlement to an upward modification by providing the father’s 2018 federal income tax return, showing that his current income has more than doubled since the time the stipulation was entered. Additionally, the stipulation and the judgment of divorce were never modified or adjusted, and more than three years had passed, triggering review pursuant to Family Court Act § 451(3)(b)(I).</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Weichman v Weichman, --- N.Y.S.3d ----, 2021 WL 5226234, 2021 N.Y. Slip Op. 06211 (2d Dept.,2021) the parties were married in 2005. There is one child of the marriage, born in 2006. The child was raised in accordance with the parties’ Orthodox Jewish Chasidic faith and attended an Orthodox Chasidic yeshiva from the age of two. In March 2015, the plaintiff commenced this action for a divorce. The plaintiff identified as a member of the LGBTQ community, and considers herself an Orthodox Jew. Supreme Court awarded the defendant sole custody of the child, with the plaintiff to have specified periods of parental access. The court imposed certain restrictions on the plaintiff’s periods of parental access, including a requirement that: “The [plaintiff] shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child’s Orthodox Jewish Chasidic Faith. Thus, the [plaintiff] shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square.” The Appellate Division vacated Supreme Court’s direction that, during her periods of parental access, she “shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child’s Orthodox Jewish Chasidic Faith”. In the absence of a written agreement, the custodial parent may determine the religious training of a child. Courts may properly direct noncustodial parents, during periods of parental access, to respect the children’s religious beliefs and practices and make reasonable efforts to ensure the children’s compliance with their religious requirements. However, a court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. A religious upbringing provision “should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely. Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken. Here the provisions of the judgment which expressly require the plaintiff to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access and the breadth of the provision in forbidding her to “expose” the child to any activities which violate the child’s Orthodox Jewish Chasidic faith had the same effect as the provisions this Court struck down in Cohen v. Cohen, 182 A.D.3d at 547, 122 N.Y.S.3d 650 and Weisberger v. Weisberger, 154 A.D.3d at 53, 60 N.Y.S.3d 265. The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child’s faith during her periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements. The defendant’s testimony at the trial supported this conclusion.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Equal Distribution of martial property appropriate in 32–year given the parties relatively advanced ages, and the plaintiff’s longtime indirect contributions to the businesses by supporting the defendant and affording him the time to manage the family enterprises.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Silvers v Silvers, 197 A.D.3d 1195, 153 N.Y.S.3d 548, 2021 N.Y. Slip Op. 04987 (2d Dept.,2021) the plaintiff commenced this action for a divorce in 2012, following a 32–year marriage of the parties, whose two children were emancipated at the time of commencement. Supreme Court determined that the defendant, during the parties’ marriage, purchased from his father the family’s longtime insurance business, Ralph Silvers Agency, and that the Agency was marital property subject to equitable distribution. The court directed that $595,000, the stipulated value of the Agency, should be divided equally between the plaintiff and the defendant. The court determined that the defendant was the owner of a 10% interest in a real estate holding company known as JAVE Properties Corporation, which was marital property subject to equitable distribution, and its then unknown value should be divided equally between the parties. The court directed that upon the plaintiff’s request, the defendant may buy out her ownership interest in JAVE for the sum of $38,375. The court awarded the plaintiff a credit of $30,000 to offset the defendant’s wasteful dissipation of certain marital assets. The court awarded the plaintiff maintenance of $1,375 per month for a period of 13 years from the commencement of the action and the sum of $20,000 for attorneys’ fees and expenses incurred in connection with the defendant’s conduct in failing to timely provide disclosure, which resulted in unnecessary delay. The Appellate Division affirmed.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held that Supreme Court providently exercised its discretion in determining that the defendant’s interest in the Agency was acquired during the marriage and that the Agency constituted marital property. The court, which was in the position to see the witnesses in person at trial and to assess the credibility of their testimony, found the defendant’s claim that he first received the Agency as a gift in 2008 to lack credibility, as it was belied by the defendant’s tax returns filed between 2000 and 2011, in which he repeatedly and unambiguously represented that he was the sole proprietor of the Agency. It also providently exercised its discretion in determining that the defendant failed to meet his burden of demonstrating that JAVE was his separate property. The relevant tax returns demonstrated that the defendant had an interest in JAVE as a sole owner as far back as 2007, both before and after a purported stock surrender, and other documentary evidence undercut the defendant’s claim that JAVE constituted separate property.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Supreme Court did not improvidently exercise its discretion in determining that an equal distribution of the defendant’s interest in the Agency and JAVE was appropriate. Particularly given the 32–year duration of the parties’ marriage, the plaintiff’s and the defendant’s relatively advanced ages of 67 and 70, respectively, at the time of trial, and the plaintiff’s longtime indirect contributions to the businesses by supporting the defendant and affording him the time and energy to manage the family enterprises, and given that the defendant’s testimony concerning both the Agency and JAVE was found to lack credibility, the court’s award to each party of 50% of the defendant’s interest in the Agency and JAVE was proper.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division, Fourth Department</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Divison finds no basis to disturb the monthly payment of the distributive award set by the court despite the unusual manner in which it calculated the interest.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Mehlenbacher v Mehlenbacher, --- N.Y.S.3d ----, 2021 WL 5275369, 2021 N.Y. Slip Op. 06219 (4th Dept., 2021) the Appellate Division rejected defendant’s contention that the court abused its discretion in setting the monthly payment for the distributive award owed to her. Although the court determined that the $272,831 distributive award would be paid to her over 15 years in monthly installments at five percent interest, the figure for monthly payments awarded by the court, $1,590, was inaccurate if the interest is compounded monthly. Rather than compounding the interest monthly, the court divided the amount of the distributive award by the total number of months to arrive at an interest-free monthly payment of $1,515. Then, in determining the monthly payment owed to defendant, the court simply added five percent of $1,515 to each monthly payment to calculate the amount awarded. Based on the size of the distributive award, the nonliquid nature of plaintiff’s assets, and plaintiff’s ability to pay, there was no basis to disturb the monthly payment set by the court despite the unusual manner in which it calculated the interest.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held that the court did not err in declining to award maintenance to her. The court did not abuse its discretion in light of the size of the distributive award. For the same reason, the court did not err in reducing plaintiff’s child support obligation from his pro rata share of the presumptively correct amount of child support </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">In a proceeding to revoke an extra judicial surrender the determination that a best interests hearing was required following the revocation and that the situation was “no different than a private placement adoption” constituted error.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">In Matter of Tony S.H., --- N.Y.S.3d ----, 2021 WL 5275507, 2021 N.Y. Slip Op. 06238 (4th Dept., 2021) a guardianship and custody proceeding pursuant to Social Services Law § 383-c, the Appellate Division observed that the statute allows the birth parent to revoke an extra-judicial surrender within a specified period (§ 383-c [6] [a]). Here, it was undisputed that the birth mother timely revoked her extra-judicial surrender within the required 45-day period. Nonetheless, despite the arguments to the contrary raised by the birth mother the court initially determined that a best interests hearing was required by Social Services Law § 383-c and later reasoned that the situation was “no different than a private placement adoption” and, thus, Domestic Relations Law § 115-b applied, which required a best interests hearing following the revocation. It held that those determinations constitute error. First, the plain language of Social Services Law § 383-c (6) (a) mandates that a timely revocation shall render the extra-judicial surrender a nullity and that the child shall be returned to the care and custody of the authorized agency, and the statute contains no language providing for a best interests hearing in the event of such a timely revocation. Second, the court erroneously determined that the agency adoption as governed by Social Services Law § 383-c was indistinguishable from a private placement adoption as governed by Domestic Relations Law § 115-b. There is a critical difference between the statutes regarding the consequences that flow from a timely revocation. Where the adoptive parents in a private placement adoption oppose the birth parents’ timely and proper revocation of consent, the court must hold a best interests hearing to determine what disposition should be made with respect to the custody of the child (see Domestic Relations Law § 115-b [6] [d]). The statute governing revocations of extra-judicial surrenders in agency adoptions, by contrast, does not provide for a best interests hearing (see Social Services Law § 383-c [6]). Thus, the court here had no statutory basis for refusing to deem the surrender a nullity, denying the birth mother’s motion, and instead conducting a best interests hearing.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>It rejected the argument that the court had a contractual basis for conducting a best interests hearing because the language of the surrender indicated that such a hearing might be required upon the birth mother’s timely revocation. Social Services Law § 383-c (5)—which sets forth the required form of surrenders does not provide that a revocation is effective only upon a determination after a best interests hearing (see § 383-c [5] [d] [ii]). New Hope deviated from the statute by inserting language in the surrender indicating that, even if the birth mother attempted to revoke the surrender within 45 days, a best interests hearing may be required. Inasmuch as that language contravened the governing statute, it did not provide a valid basis for the court’s refusal to give effect to the birth mother’s timely revocation. It held that the court erred in refusing to deem the surrender a nullity, denying the birth mother’s motion seeking that relief, and granting New Hope’s petition seeking approval of the surrender.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division holds that the court erred in considering the mother’s motion, which was mailed eight days before the return day because it was untimely. (See CPLR 2214 (b)) </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">In Matter of Streiff v Streiff, --- N.Y.S.3d ----, 2021 WL 5275559, 2021 N.Y. Slip Op. 06252 (4th Dept., 2021) on January 29, 2020, which was eight days before the scheduled hearing on the petitions, respondent mother filed a motion seeking, inter alia, to preclude the father from offering into evidence certain materials. A return date was not initially provided on January 29, 2020, but Family Court later advised the mother’s counsel that the motion would be returnable on February 6, 2020, which was the previously scheduled date for the hearing on the father’s petitions. The father did not respond to the motion. Prior to beginning the hearing, the court stated that the father had not responded to the motion. The father’s counsel replied that the motion was untimely. The mother’s counsel explained that she had mailed the motion to the father’s counsel on January 29, 2020, and the court suggested that the eight-day period between mailing and the return date was sufficient. The father responded that he had not received the motion papers until that Monday, i.e., February 3, 2020. The court rejected the father’s contention that the motion was untimely stating that it was “going to entertain the motion.” The father’s counsel addressed the merits of the motion. The court repeated that the father had not responded to the motion, and granted those parts of the motion seeking to preclude the materials and to strike the allegations in the petitions related thereto. Based on a request to withdraw the petitions by the father’s counsel following the court’s decision to grant the mother’s motion in part, the court dismissed the petitions, with prejudice. The Appellate Division held that the court erred in considering the mother’s motion because it was untimely. Pursuant to CPLR 2214 (b), “[a] notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard.” Although service is complete upon mailing, five days must be added to any relevant time period measured from the date of service when service is effected by mail (see CPLR 2103 [b] [2]). At the hearing, the mother’s counsel stated that she served the motion papers by mailing them on January 29, 2020, i.e., eight days before the return date on February 6, 2020. Adding five days to the typical eight-day period, the father’s counsel lacked adequate notice of the motion and that the court erred in considering it (see generally State Bank of Texas v. Kaanam, LLC, 120 A.D.3d 900, 901, 991 N.Y.S.2d 818 [4th Dept. 2014]).</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">November 11, 2021</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division, First Department</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">First Department holds that Family Court Act § 439(e) is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> In Matter of Liu v Ruiz, --- N.Y.S.3d ----, 2021 WL 5183560, 2021 N.Y. Slip Op. 06089 (1st Dept.,2021) on February 5, 2020, petitioner filed a child support violation petition in Family Court seeking to enforce child support arrears against the father. On October 15, 2020, after a hearing, the Support Magistrate issued findings of fact, concluding that the father did not willfully violate the child support order. On November 13, 2020, petitioner served her objections to the findings of fact and, on November 24, 2020, the father served his rebuttal. Pursuant to Family Court Act § 439(a), a ruling on the objections was required to be issued no more than 15 days later. However, a Family Court judge had not even been assigned to the matter when that period of time elapsed. On December 28, 2020, the mother commenced this proceeding by order to show cause, pursuant to CPLR 7803(1). The petition sought mandamus relief against Judge Jeanette Ruiz, in her official capacity as Chief Administrative Judge of the New York City Family Court (CAJ), to compel a decision on the mother’s objections, in compliance with Family Court Act § 439(e). The mother asserted that because the child, now 15 years old, was autistic and had more than $8,000 in monthly expenses, not receiving child support was “crushing.” Petitioner also sought reasonable counsel fees under CPLR 8601(a), including as “a catalyst to obtaining finally a decision on the objections.” The Appellate Division held that Family Court Act § 439(e) was violated in this instance. The statute is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it (see Rubin v. Della Salla, 107 A.D.3d 60, 67, 964 N.Y.S.2d 41 [1st Dept. 2013]. Because the CAJ responded to the mother’s petition by assigning a Family Court judge to rule on her objections, and because the CAJ offered no substantial justification for not having enforced Family Court Act § 439(e) before the petition was filed, the matter was remanded for an assessment of the mother’s attorneys’ fees under the State EAJA.<br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division, Second Department</span></b><b><span style="font-family: arial;"><br /></span></b><span style="white-space: pre;"><b><span style="font-family: arial;"> <br /></span></b></span><b><span style="font-family: arial;">Supreme Court improvidently applied a discount to the average appreciation value of the plaintiff’s minority interest in Long Island Plastic Surgical Group, due to his lack of control as a minority owner to transfer his interest, which far exceeded the 15–20% discount that both experts agreed was appropriate. It determined that a 20% discount should be applied<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Davenport v Davenport, --- N.Y.S.3d ----, 2021 WL 5099033, 2021 N.Y. Slip Op. 05946 (2d Dept.,2021)1 the parties were married on July 3, 2010, and had no children. The plaintiff was a surgeon with a minority interest in Long Island Plastic Surgical Group (hereinafter LIPSG). The defendant was a pediatric nurse practitioner who worked intermittently throughout the marriage. In April 2016, the plaintiff commenced the action for a divorce. Supreme Court, among other things, determined that the marital portion of the plaintiff’s interest in LIPSG was $500,000 and awarded the defendant 10% of this amount, awarded the defendant 10% of the stipulated value of business entities known as Portman, LLC, Big Bang Beverage, LLC, and TK Styles Properties, LLC, awarded the defendant 10% of the stipulated value of certain investment accounts with Pershing Advisors Solutions, LLC, and RM Stark Investment, awarded the defendant 25% of the stipulated value of certain bank accounts, and awarded the defendant 25% of the stipulated value of the marital residence after deducting the plaintiff’s separate property credit.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held the Supreme Court providently determined that the methodology and valuations of the defendant’s forensic expert, Karl Jahnsen, were more objective than that of the court-appointed neutral forensic expert. The court also providently determined, based upon the expert testimony, that a discount should be applied to the average appreciation value of the plaintiff’s interest in LIPSG, due to his lack of control as a minority owner to transfer his interest, which results in a lack of marketability. However, in valuing the marital appreciation of the plaintiff’s interest in LIPSG at only $500,000, the court improvidently applied a discount to Jahnsen’s average appreciation value which far exceeded the 15–20% discount that both experts agreed was appropriate for this lack of marketability. It determined that a 20% discount should be applied, and valued the marital appreciation of the plaintiff’s interest in LIPSG at $1,344,686.50. In arriving at the value, it first subtracted the husbands experts calculation of the value of the plaintiff’s interest in LIPSG at the date of marriage pursuant to the relative unit method ($5,108,561), from his calculation of the value of the plaintiff’s interest in LIPSG at the date of commencement of the action pursuant to the relative unit method ($6,552,653), and then discounted that amount by 20%, which equaled $1,155,274. It then subtracted his calculation of the value of the plaintiff’s interest in LIPSG at the date of marriage pursuant to the reasonable compensation method ($6,733,054), from his calculation of the value of the plaintiff’s interest in LIPSG at the date of commencement of the action pursuant to the reasonable compensation method ($8,650,678), and then discounted that amount by 20%, which equaled $1,534,099. It then added the values of both methods, and divided that sum by 2. It further held that it was not an improvident exercise of the Supreme Court’s discretion to award the defendant only 10% of the marital appreciation in the plaintiff’s interest in LIPSG, in light of the brief duration of the marriage and the defendant’s minimal contribution to the practice.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The evidence presented at trial did not indicate that the plaintiff’s involvement in certain business entities involved anything more than investing marital monies into the companies. Further, although certain investment accounts were actively managed, the plaintiff admitted that he only spoke to the manager every couple months. As such, it was improper to distribute these marital assets in the same manner as the plaintiff’s interest in LIPSG, instead of the same manner as the plaintiff’s bank accounts. The defendant was awarded 25% of the stipulated value of each of those entities and accounts.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The defendant was also awarded 40% of the stipulated value of the marital residence, taking into consideration her significant direct contributions to the construction, design, and decoration of the home, and that the plaintiff was to receive a significant separate property credit for any premarital money that he invested in the home.<br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Supreme Court providently exercised its discretion in awarding the plaintiff 1% of the value of defendant’s retirement accounts where she made no contributions to the accounts, which accumulated funds while the parties were separated but prior to the commencement of this action.<span style="white-space: pre;"> </span></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Cuomo v Moss, --- N.Y.S.3d ----, 2021 WL 5099014, 2021 N.Y. Slip Op. 05945 (2d Dept.,2021) the parties were married on October 5, 1996, and had no children. On February 27, 1997, the defendant and the plaintiff’s mother each acquired a one-half interest in certain real property in Suffolk County where the parties lived together (hereinafter the marital residence). The parties both made payments toward the mortgage on the marital residence until 2011, when the defendant left the marital residence to live in Tennessee for a job. After the defendant left the marital residence, the plaintiff solely paid the remaining balance due on the mortgage of $68,000. During the marriage, the defendant obtained a home equity line of credit (HELOC), which she solely paid after leaving the marital residence in 2011. In November 2017, the plaintiff commenced the action for a divorce. The Supreme Court, inter alia, (1) awarded the plaintiff 50% of the defendant’s interest in the marital residence, (2) declined to award the defendant a credit for payments she made toward the HELOC, (3) awarded the plaintiff a credit of $34,000 for payments he made toward the mortgage on the marital residence, and (4) awarded the plaintiff 1% of the value of the defendant’s retirement accounts.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held that the Supreme Court providently exercised its discretion in awarding the plaintiff 1% of the value of the defendant’s retirement accounts. The court sufficiently took into account that the plaintiff made no contributions to the defendant’s retirement accounts, which accumulated funds while the parties were separated but prior to the commencement of this action, by awarding the plaintiff only 1% of the value of the defendant’s retirement accounts.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> <span style="white-space: pre;"> </span>However, the Supreme Court improvidently exercised its discretion in awarding the plaintiff a credit in the sum of $34,000 for payments he made toward the mortgage on the marital residence. Where a party has paid the other party’s share of what proves to be marital debt during the pendency of the action, including payments toward the mortgage on the marital residence, reimbursement is required. However, as a general rule, where the payments are made before either party is anticipating the end of the marriage, ... courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets” (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415) Here, the plaintiff’s payments toward the mortgage, which was satisfied in October 2017, were made prior to the commencement of this action, and thus, the plaintiff was not entitled to a credit for those payments.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span> <span style="white-space: pre;"> </span> <span style="white-space: pre;"> </span></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Where there was an agreement but no custody order, the children were not being illegally detained by the mother, and the father could not establish a right to habeas corpus relief<span style="white-space: pre;"> </span></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Toussaint v Doucey, --- N.Y.S.3d ----, 2021 WL 5099056, 2021 N.Y. Slip Op. 05972 (2d Dept.,2021) the parties, who had two children together, were never married. For the summer of 2020, the mother and the children moved from New York to France, where the mother’s relatives resided. The father, who resided in Haiti, demanded that the mother send the children to New York for the month of July, where he had previously planned to visit with the children during that time. When the mother refused to do so, offering instead to pay for the father’s airfare to France to visit with the children, the father filed a petition for a writ of habeas corpus and custody of the parties’ children, arguing, that the mother had abducted the children to France. The Family Court dismissed the petition. The Appellate Division affirmed. It noted that a parental agreement executed by the parties in 2018 provided that the children would reside with the mother, and specifically contemplated the mother’s place of residence to be either in the United States or Europe, depending upon her place of employment. Thus, the father could not establish that he was unaware of the potentiality of the children’s move to Europe, as the parties’ agreement specifically provided for such a potentiality. As there was no other custody order in place, and the father had no greater right to the custody of the children than the mother, the children were not being illegally detained by the mother, and the father could not establish a right to habeas corpus relief (see Matter of Kiara B. v. Omar R., 147 A.D.3d 476, 46 N.Y.S.3d 417).<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Improper to impute income to the father as the sole shareholder of a subchapter S corporation where Court utilized the gross receipts of the corporation to calculate the additional income, without accounting for returns and allowances or the cost of goods sold.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Ho v Tsesmetzis, --- N.Y.S.3d ----, 2021 WL 5099025, 2021 N.Y. Slip Op. 05968 (2d Dept.,2021) the mother filed a child support petition pursuant to the Uniform Interstate Family Support Act. After a hearing, the Support Magistrate imputed income to the father from a subchapter S corporation of which he was the sole shareholder and granted the mother’s petition. The Appellate Division reversed and remitted for a new hearing. It observed that in the exercise of its considerable discretion, the court may impute income to a party based on the party’s past income or demonstrated future potential earnings .However, the court must provide a clear record of the source of the imputed income, the reasons for such imputation, and the resultant calculations. A determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. While the Support Magistrate properly determined that additional income should be imputed to the father as the sole shareholder of the subchapter S corporation the amount imputed was not supported by the record, as the Support Magistrate improperly utilized the gross receipts of the corporation to calculate the additional income to impute to the father, without accounting for the corporation’s returns and allowances or the cost of goods sold. The Support Magistrate should have used the corporation’s gross profits for its calculation of additional income to be imputed.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Supreme Court</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Grandparent visitation was denied as not in theb est interest of the child where the facts proved that the level of animosity between the grandparents and parents was stratospheric. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In D.A.D. & P.C.D., v. D.A.S. & A.M.S., 2021 WL 5184295 (Table), 2021 N.Y. Slip Op. 51043(U) (Supreme Court, 2021) Supreme Court denied a a petition by grandparents for visitation with their granddaughters. It found that under Wilson v. McGlinchey, 2 NY3d 375 (2004), “best interests” could not be established. The principle that emerged from the Court of Appeals decision was undeniable: “worsening relations between the litigants” when combined with “strenuous objections by the parents” precludes grandparent visitation because the child’s best interests can only be advanced “by shielding the child from the animosity and dysfunction between the parent and grandparents.” The Court of Appeals refined the test for grandparent visitation in E.S. v. P.D., 8 NY3d 150 (2007) in which the Court told trial courts that they should examine, as a factor, “the reasonableness” of a parent’s objection to grandparent access. In applying these tests, whether the denial of visitation was “reasonable” or whether the denial was based on elevated animosity that would preclude a finding that visitation was in the “best interests” of the grandchildren, the New York courts have examined a variety of factors. Here, the undisputed facts proved, beyond any reasonable criteria, that the level of animosity would never permit grandparent visitation. The level of animosity between the grandparents and parents in this instance was stratospheric and swamped any other factor in evaluating this petition. Under the Court of Appeals reasoning in Wilson v. McGlinchey and the associated case law, the petition could not be justified. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span> <span style="white-space: pre;"> </span> <span style="white-space: pre;"> </span></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Supreme Court held that under the doctrine of comity a duly executed unacknowledged prenuptial agreement executed in a foreign nation in accordance with that nation’s laws was valid and enforceable in New York. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Oleiwi v Shlahi, --- N.Y.S.3d ----, 2021 WL 5184166, 2021 N.Y. Slip Op. 21301(Sup Ct., 2021) the parties were married in Iraq and signed a Mahr which mandates certain payments from the husband to his wife at the time of marriage and thereafter, if a divorce occurs. The mahr was executed in accordance with the marriage laws of Iraq. After the husband commenced a divorce action in New York, the wife sought to enforce the mahr and the husband argued that was not acknowledged in accordance with New York law and unenforceable. The Court observed that a mahr is a marriage agreement in accordance with Islamic law where the husband pledges to pay the wife a “deferred dowry” in the event of a divorce. Khan v. Hasan, 201 NY Misc Lexis 4673 (Sup. Ct. Nassau Cty 2021) suggested that if the mahr were executed in New York but not properly acknowledged, then it is unenforceable in a matrimonial action.. Here the mahr was executed in Iraq and, in the Court’s view, the ruling in Khan v. Hasan applied only to mahrs executed in New York. The Court observed that DRL §236(B)(3) provides: An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. The mahr in this case was signed by a witness and marked by the husband and wife and did not, on its face, satisfy the requirements of DRL §236(B)(3). See Matisoff v. Dobi, 90 NY2d 127 (1997); Galetta v. Galetta, 21 NY3d 186 (2013). The Court found that the mahr was executed in Iraq and there was no dispute that the document was authentic and would be enforced in Iraq. New York has long held that comity should be extended to uphold the validity of foreign nuptial matters unless recognition of the judgment would do violence to a strong public policy of New York. Supreme Court held that under the doctrine of comity a duly executed prenuptial agreement executed in a foreign nation in accordance with that nation’s laws will be found to be valid and enforceable in New York. The wife’s motion for a judgment declaring the mahr enforceable against the husband was granted.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division, Third Department<br /></span></b><b><span style="font-family: arial;">An appeal from a custody award was rendered moot and dismissed where neither party presently resided in New York. Under Domestic Relations Law 76a [1][b] the courts of this state were divested of jurisdiction and could not make a determination that would directly affect any interest or right of the parties. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">In Matter of Richard Y v Victoria Z., N.Y.S.3d , 2021 WL 4994146, 2021 N.Y. Slip Op. 05899 (3d Dept.,2021) Family Court granted the father sole legal and physical custody of the children, affording the mother supervised parenting time to be exercised in New York. The mother appealed. Although not raised by the parties or the attorneys for the children, the Appellate Division dismissed the appeal as moot. Where a court in this state has made a custody determination, it retains exclusive, continuing jurisdiction over the determination until ... a court of this state or a court of another state determines that the child, the childs parents, and any person acting as a parent do not presently reside in this state (Domestic Relations Law 76a [1][b]). Here, the mother continued to reside in New Mexico and, since entry of Family Courts August 2019 custody order, the father relocated with the children to Florida where the Circuit Court for the Sixth Judicial Circuit in Pinellas County, Florida determined that Florida is the children’s home state for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law art 5A), and the parties both made appearances, with counsel, in that court with respect to their competing petitions seeking modification of the extant custody order. As neither party presently resided in New York, the courts of this state were divested of jurisdiction and cannot now make a determination ... that would directly affect any interest or right of the parties. This appeal was rendered moot and, was dismissed.<br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Parties cannot be permitted to assert positions in legal proceedings that are contrary to declarations made under the penalty of perjury on income tax returns. By claiming lottery winnings as income on their joint tax returns, the parties represented that such winnings were not a gift.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Hughes v Hughes, --- N.Y.S.3d ----, 2021 WL 4896914, 2021 N.Y. Slip Op. 05765 (3d Dept.,2021) the parties were married in 1991. In 2018, the husband filed for divorce. Following a nonjury trial, Supreme Court determined, among other things, that money received by the wife after her mother purchased a winning lottery ticket was marital property, the marital residence and a vacation home were marital property that should be sold and divided 45% to the husband and 55% to the wife, and the husband was not required to pay the wife any spousal maintenance. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division affirmed. It rejected the wife’s argument that the lottery winnings that her mother shared with her were not marital property because they were a gift. Whether a particular asset is marital or separate property is a question of law that a trial court must initially address to ascertain the marital estate. Property acquired during marriage is presumed to be marital unless the presumption is rebutted by the party asserting the separate property claim. It was undisputed that the wife’s mother purchased a scratch-off lottery ticket that won a grand prize of $7.5 million. Documentary evidence and testimony credited by Supreme Court established that the mother shared her winnings with her five children, with each of the six individuals receiving an equal pretax share of $1.25 million. State Gaming Commission documents showed that all six were considered winners, a giant check for publicity purposes listed all six names as winners, all six appeared at a public event at which the giant check was presented to them, each received a separate certificate of payment, an IRS form W–2G was issued by the Gaming Commission to each winner indicating that $1.25 million in gambling winnings was paid and the amount of taxes withheld, and equal direct deposit payments of the after-tax amount were issued to all six winners simultaneously. The wife’s mother did not file any gift tax returns related to the lottery winnings received by her children. The husband and the wife claimed the $1.25 million as income on their 2014 joint federal and state income tax returns, specifically denoting that it was gambling winnings. The Appellate Division pointed out that the Internal Revenue Code specifies that, for income tax purposes, “[g]ross income does not include the value of property acquired by gift” (26 USC § 102[a]). Courts “cannot, as a matter of policy, permit parties to assert positions in legal proceedings that are contrary to declarations made under the penalty of perjury on income tax returns” (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422, 881 N.Y.S.2d 369 [2009). By claiming the lottery winnings as income on their joint tax returns, the husband and the wife necessarily represented that such winnings were not a gift. Therefore, Supreme Court properly determined that the lottery winnings were not a gift to the wife, so they were not her separate property but were marital property subject to equitable distribution.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> The wife testified that she has been employed in the same position for 10 years. She testified that she worked full time for the first seven years and is able to work full time now, but starting in 2016 she chose to work only 20 to 24 hours per week. Under the circumstances, including that the wife failed to provide copies of her recent pay stubs to verify her pay rate, Supreme Court reasonably imputed income to her in an amount that was slightly less than double her part-time annual income. Using that imputed income when applying the statutory formula, the court properly calculated the guideline amount of postdivorce maintenance to be zero dollars (see Domestic Relations Law § 236[B][6][c][2]). The court did not abuse its discretion in declining to award maintenance to the wife.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Supreme Court properly precluded report and testimony of tax expert on tax implications of maintenance award where husband failed to file written report in a timely fashion, waiting until a few days before trial and the wife was prejudiced<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Headwell v Headwell, --- N.Y.S.3d ----, 2021 WL 4897585, 2021 N.Y. Slip Op. 05752 (3d Dept.,2021) the Plaintiff ( wife) and defendant ( husband) were married in 1994 and had three children (born in 1995, 2000 and 2002). The wife commenced this divorce action in 2018. The parties placed a stipulation on the record that resolved the issues of grounds, child custody and equitable distribution. Supreme Court awarded the wife maintenance of $2800 a month for nine years and child support. Supreme Court further directed the husband to maintain health insurance for the children until they reached the age of 21 or, if in college, until graduation. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Child support award was vacated and remitted. Supreme Court failed to articulate the factors it considered in electing not to include income over the statutory cap ... in its final child support award,” and it was required to do so. It also erred in directing the husband to maintain health insurance for the parties’ children until they graduated from college, even if they graduated after they reached the age of 21 and his child support obligation otherwise terminated..<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division rejected the husband’s contention that Supreme Court abused its discretion in precluding the report and testimony of his expert on the implications that recent enactments would have on the tax treatment of that maintenance award. The husband failed to file the expert’s written report in a timely fashion, waiting until a few days before trial (see 22 NYCRR 202.16[g][2]). The wife was prejudiced by that belated disclosure, as she was deprived of the opportunity to retain her own expert to review the report and request that the husband, who was in a far superior financial position, pay for that review. Supreme Court properly granted the wife’s application to preclude the report and potential testimony as untimely, further indicating that it saw no need for expert proof on a legal issue that it was capable of understanding without assistance. Supreme Court has “broad discretion in controlling discovery and disclosure,” including the power to preclude the use of a belatedly filed expert report where the delay was willful or caused prejudice to the opposing party, and the foregoing satisfied the court that there was no abuse of that discretion here (CPLR 3101[d][1][I]; 22 NYCRR 202.16[g][2]. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>Supreme Court found that the husband would earn at least $300,000 a year . Supreme Court imputed annual income to the wife of $58,800 to reflect the amount that she would be able to earn if she began working full time at her longstanding part-time job, a reasonable expectation given that her role as the primary caregiver for the parties’ children was easing as their youngest child neared adulthood .Having set forth a basis for imputation that was supported by the record and then articulating how the statutory factors justified an amount of maintenance that was an upward adjustment from the guideline obligation for a period within the guideline range, there was no abuse of discretion in its maintenance award.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In a footnote the Court pointed out that Supreme Court remains obliged to make an award of postdivorce maintenance “upon application by a party,” continuing the longstanding rule that the award becomes effective upon the initial request for maintenance (Domestic Relations Law § 236[B][6][a], as amended by L 2015, ch 269, § 4). The nine-year period accordingly began to run, by operation of law, on the date that the wife commenced this action and first requested maintenance in her summons and complaint.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">The determination as to whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court . Although an AFC should not have a particular position or decision in mind at the outset of the case before gathering evidence, after an appropriate inquiry, it is entirely appropriate. <br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Amanda YY. ,v. Faisal ZZ., --- N.Y.S.3d ----, 2021 WL 4897205, 2021 N.Y. Slip Op. 05750 (3d Dept.,2021) a custody case, the Appellate Division noted that pursuant to 22 NYCRR 217.1(a), Family Court must appoint an interpreter for “an interested parent ... of a minor party” if the court determines that the parent “is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings.” “The determination as to whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier such that the failure to appoint an interpreter will deprive an individual of his or her constitutional rights. The father did not request an interpreter. He testified that, although his native language is Urdu, he had lived in the United States for 20 years, had passed the citizenship test and was awaiting the oath ceremony, his children speak only English, he single-handedly ran his own restaurant for approximately 10 years and he understood 98% of the English spoken in the courtroom, including the questions asked by both his counsel and the mother’s counsel. He stated that he would “speak up” if he could not understand what was going on at the hearing, and a few times he indicated that he did not understand, resulting in questions being reframed. Under the circumstances, Family Court did not abuse its discretion by failing to sua sponte appoint an English language interpreter.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">The Appellate Division also held that although an AFC should not have a particular position or decision in mind at the outset of the case before the gathering of evidence, after an appropriate inquiry, it is entirely appropriate, indeed expected, that an AFC form an opinion. As it is the role of the AFC to advocate for the children, taking a position contrary to one of the parents is not an indication of bias. The AFC had strong opinions from the outset of these proceedings arising from his role and service as AFC for the father’s older children in prior custody proceedings. It was not inappropriate for the AFC to form opinions from evidence of the father’s parenting style and abilities that he gleaned from those prior proceedings.</span></b><b><span style="font-family: arial;"><br /></span></b><span style="white-space: pre;"><b><span style="font-family: arial;"> <br /></span></b></span><b><span style="font-family: arial;">Absence of proper service of a motion in accordance with CPLR 2103(b) deprives the court of jurisdiction to entertain the motion</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Regina R v Frederick S, --- N.Y.S.3d ----, 2021 WL 4897280, 2021 N.Y. Slip Op. 05749 (3d Dept.,2021) the Appellate Division affirmed an order which denied the father’s motion to vacate his default in this custody proceeding. It found that the father failed to comply with the service requirements of CPLR 2103. CPLR 2103(b) provides that, “[e]xcept where otherwise prescribed by law or order of court, papers to be served upon a party in a pending [proceeding] shall be served upon the party’s attorney.” The father’s motion to which was filed by the father’s attorney, was served only on the mother herself and not her attorney, in contravention to CPLR 2103(b). Nor was the attorney for the child served with the motion. Absence of proper service of a motion deprives the court of jurisdiction to entertain the motion. The father’s failure to properly serve the mother’s attorney and the attorney for the child deprived Family Court of jurisdiction to entertain the motion.</span></b><b><span style="font-family: arial;"><br /></span></b><span style="white-space: pre;"><b><span style="font-family: arial;"> <br /></span></b></span><b><span style="font-family: arial;">Where a party seeks modification of custody an evidentiary hearing should be conducted unless the party fails to make a sufficient evidentiary showing to warrant a hearing, or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Sarah OO., v. Charles OO, 2021 WL 4897582 (3d Dept.,2021) the Appellate Division restated the rule that the threshold inquiry in any custody modification proceeding is whether there has been a change in circumstances since entry of the prior custody order that, if established, warrants a review of the issue of custody to ensure the continued best interests of the child. While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, an evidentiary hearing is generally necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests. In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner.<br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span> <span style="white-space: pre;"> </span></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">It was error in the context of a motion for violation of an order of supervision for Family Court to find that respondents were in “technical” compliance with the order but were nonetheless in violation of the order.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Nicholas L,. --- N.Y.S.3d ----, 2021 WL 4896912, 2021 N.Y. Slip Op. 05746 (3d Dept.,2021) the Family Court found the children to be neglected, placed them in foster care and ordered respondents to comply with the terms and conditions of the order of supervision and the orders of protection that were made a part of the January 2018 order. In June 2018 after a hearing, Family Court found that respondents violated the order of supervision and the orders of protection and that good cause existed to extend the order of supervision and continue the children’s placement. Family Court found that even though respondents were in “technical” compliance with the order of supervision, they willfully violated the order on the theory that “[p]arents are expected to actually gain insight and modify their behaviors to ensure compliance with a [c]ourt’s order of supervision” and respondents “have failed to acknowledge the trauma their actions have caused the children,” “have failed to comprehend the risks associated with maintaining contact with [the partner]” and have “openly continu[ed] a relationship with a person [who] has been [c]ourt ordered to have no contact with their children.” Family Court found that “compliance with an order of supervision pursuant to Family Ct Act §§ 1052 [and] 1055 both require more than mere participation in services allowing a parent to simply check off the term as done, i.e., technical compliance,” and that respondents lacked insight into the reasons why the terms and conditions were ordered. The Appellate Division held that it was error in the context of a violation motion for Family Court to find that respondents were in “technical” compliance with the order of supervision but were nonetheless in violation of said order. The quantum of proof required to establish a willful violation of a court order pursuant to Family Ct Act § 1072 is clear and convincing evidence, which was not established here. Family Court’s determination that respondents willfully violated the order of supervision was an abuse of discretion.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Increase in mother’s income by more than 15% entitled father to modification of the parties’ respective basic child support obligations, irrespective of whether any decrease in the father’s income was an apparent result of his own voluntary actions </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Castelli, v Maiuri-Castelli, --- N.Y.S.3d ----, 2021 WL 4763261, 2021 N.Y. Slip Op. 05558(2d Dept.,2021) the judgment of divorce entered in 2017, directed the father to pay basic child support to the mother of $768.59 per week, as well as 100% of the children’s health insurance premiums, unreimbursed medical and dental expenses, child care, and life insurance premiums. In 2019, the father’s weekly basic child support obligation was increased to $854 pursuant to a cost of living adjustment. The father filed a petition in, 2020, for a downward modification of his child support obligation, alleging that the mother’s income had increased by more than 15% since entry of the judgment of divorce. The father also requested a commensurate decrease in his pro rata share of the “add-ons”. At a hearing the father submitted evidence that the parties’ respective existing child support obligations were calculated based upon a gross income of $0 for the mother, who was unemployed at the time of entry of the judgment of divorce, and a gross income of $175,269.25 for the father, who was employed as an attorney. He also submitted evidence that the mother had obtained employment and that, in 2019, she earned a gross salary of $44,366. The father testified that he had been suspended from the practice of law on July 1, 2015, prior to entry of the judgment of divorce, and introduced evidence that, in 2019, he earned a gross salary of $58,038.38. The Support Magistrate granted the father’s petition to the extent of directing that the father would be responsible for 77% and the mother responsible for 23% of the children’s health insurance premiums, unreimbursed medical and dental expenses, child care, and life insurance premiums, and otherwise denied the petition. The Support Magistrate acknowledged in his findings of fact that the mother’s income had “increased substantially” since entry of the judgment of divorce, but denied the father’s petition for a downward modification of his basic child support obligation, explaining that “[b]ecause the [father’s] loss of income is an apparent result of his own voluntary actions, it would be impermissible, under current case law, to grant his request to reduce his ongoing child support obligation.”</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span> The Appellate Division remitted for a new determination. It held that the Family Court should have granted the father’s objections . His evidence demonstrated that the mother’s income had increased by more than 15% since entry of the judgment of divorce, which warranted a new determination of the parties’ respective child support obligations (see Family Ct Act § 451[3][b][I], [ii]). Contrary to the finding of the Support Magistrate, the increase in the mother’s income entitled the father to new determination of the parties’ respective basic child support obligations, irrespective of whether any decrease in the father’s income could also properly be considered (see Matter of Vetrano v. Vetrano, 177 A.D.3d at 892, 115 N.Y.S.3d 104).</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Biological parent whose parental rights have been terminated is not entitled to seek custody of the child, including where parental rights have been terminated voluntarily</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Mehmeti v Dautaj, --- N.Y.S.3d ----, 2021 WL 4764204 (Mem), 2021 N.Y. Slip Op. 05569 (2d Dept.,2021) following the petitioner’s incarceration she voluntarily surrendered her parental rights and the children were adopted by the respondents. After she was released from prison she commenced a proceeding for custody of the children. Family Court dismissed the petition for lack of standing. The Appellate Division affirmed. It held that a biological parent whose parental rights have been terminated is not entitled to seek custody of the child, including where parental rights have been terminated voluntarily. At the time the petitioner commenced this proceeding, she was not a person entitled to seek custody of the children</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Error for Court to grant sua sponte relief which is “dramatically unlike” the relief requested by the attorney <br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of M.T. v. DeSabato, --- N.Y.S.3d ----, 2021 WL 4763181, 2021 N.Y. Slip Op. 05574 (2d Dept.,2021) a custody modification proceeding the child. After the father petitions were dismissed and the mother’s petition was settled the court stated that it understood that the petition filed by attorney for the child sought temporary relief, all counsel declined the opportunity to make additional arguments, and the court marked the petition “submitted.” Thereafter, the court determined the petition filed by the attorney for the child by awarding sole legal and residential custody of the child to the mother and supervised therapeutic parental access to the father. The mother’s second modification petition, seeking sole custody of the child, was subsequently withdrawn. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division reversed. It held that the relief granted by the Family Court was “dramatically unlike” the relief requested by the attorney for the child. While the attorney for the child requested an award of temporary custody to the mother and a temporary suspension of the father’s parental access, the court issued an order that “superceded [sic]” the prior order of custody and any orders that incorporated the prior order of custody, and awarded sole legal and physical custody of the child to the mother and supervised therapeutic parental access to the father. The petition filed by the attorney for the child sought temporary relief, and as such, the father was not on notice that the court would issue a final custody determination on this petition. The court erred in, sua sponte, granting such relief.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">At dispositional stage of proceeding to terminate parental rights, there is no presumption that interests of child will be served best by a return to the biological parent<span style="white-space: pre;"> </span></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Matter of Lee D., --- N.Y.S.3d ----, 2021 WL 4763138, 2021 N.Y. Slip Op. 05559 (2d Dept., 2021) the Appellate Division held that at the dispositional stage of a proceeding to terminate parental rights, the court focuses solely on the best interests of the child” (Family Ct Act § 631) The factors to be considered in making the determination include the parent or caretaker’s capacity to properly supervise the child, based on current information and the potential threat of future abuse and neglect. At disposition, there is no presumption that those interests will be served best by a return to the biological parent. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Proper to calculate child support based on parents income as of the completion of the hearing, rather than claimed prior earnings, where based on credibility determinations and supported by the record </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Aslam v Younas, --- N.Y.S.3d ----, 2021 WL 4763155, 2021 N.Y. Slip Op. 05555 (2d Dept.,2021) the Appellate Division held that, the Support Magistrate providently exercised his discretion in calculating the father’s child support obligation based upon the father’s income as of the completion of the hearing. The Support Magistrate’s determination to consider the father’s income as of the completion of the hearing, rather than his claimed prior earnings, was based on credibility determinations and supported by the record, and thus, should not be disturbed.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">October 1, 2021</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division, First Department</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span> <span style="white-space: pre;"> </span></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">International Travel with Children to Non-Hague Convention Country not permitted in absence of showing it was in best interests of young children.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Naamye Nyarko B., v. Goodwin Edwin C., --- N.Y.S.3d ----, 2021 WL 4733960 (Mem) (1st Dept., 2021) the Appellate Division reversed an order which permitted respondent father to travel with the subject children internationally on 60 days upon written notice to petitioner mother. It held that Family Court erred in granting the father’s request to modify the custody and visitation order to permit him to travel internationally with the children, particularly to Ghana, which is not a party to the Hague Convention on Civil Aspects of International Child Abduction, as there was no sound and substantial basis in the record to support a finding that such unrestricted international travel was in the best interests of the young children.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division, Second Department</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> <span style="white-space: pre;"> <br /></span></span></b><b><span style="font-family: arial;">Where a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span> In Matter of Schoepfer v Colon, --- N.Y.S.3d ----, 2021 WL 4561106 (Mem), 2021 N.Y. Slip Op. 05344 (2d Dept.,2021) the Appellate Division held that where a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court. The criminal court has authority to determine whether its order of protection is subject to subsequent orders pertaining to custody and parental access, and can decline to amend an order of protection to so provide. Where the temporary orders of protection that were entered in the criminal action did not state that they were subject to subsequent court orders pertaining to custody and parental access and had not been vacated or modified, an order of the Family Court awarding parental access would have countermanded the provisions of the temporary orders of protection. Therefore, no hearing was necessary to deny the mother’s motion, in effect, for supervised parental access with the children.</span></b><b><span style="font-family: arial;"><br /></span></b><span style="white-space: pre;"><b><span style="font-family: arial;"> <br /></span></b></span><b><span style="font-family: arial;">CSSA does not permit court to determine a party’s income for child support purposes by averaging a party’s earnings over several years. Court may impute income to a party when it is shown that the marital lifestyle was such that, there is a basis to conclude that the party’s actual income and financial resources were greater than what he or she reported.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Koutsouras v Mitsos-Koutsouras, --- N.Y.S.3d ----, 2021 WL 4558397 (Mem), 2021 N.Y. Slip Op. 05328(2d Dept, 2021) the parties were married in 2009, and had two children born in 2013. In 2015, the plaintiff commenced the action for a divorce. The parties agreed that the Supreme Court would determine retroactive and prospective child support based upon their submissions. The court directed the plaintiff to pay the defendant $343.56 per week in child support. The Appellate Division reversed. It pointed out that the Child Support Standards Act does not permit the court to determine a party’s income for child support purposes by averaging a party’s earnings over several years. It noted that the court may impute income to a party based on the party’s employment history, future earning capacity, educational background, resources available to the party, including ‘money, goods, or services provided by relatives and friends or when it is shown that the marital lifestyle was such that, under the circumstances, there is a basis for the court to conclude that the party’s actual income and financial resources were greater than what he or she reported on his or her tax return. It held that Supreme Court improperly determined the parties’ income by averaging their reported earnings over the preceding four years. Furthermore, under the circumstances of this case, where the plaintiff was employed by his family and his tax returns showed substantial downward fluctuations in income, the court should have conducted an analysis as to whether to impute income to the plaintiff. The matter was remitted to the Supreme Court for a hearing to determine the parties’ income for the purpose of calculating the plaintiff’s child support obligation, and a recalculation of that obligation.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>Support Magistrate properly calculated father’s income from employment based upon his most recent tax return. Although Support Magistrate had discretion to consider the father’s recent pay increase, which took effect approximately one month before the hearing, it was not required to do so.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Remsen v Remsen, --- N.Y.S.3d ----, 2021 WL 4561330, 2021 N.Y. Slip Op. 05342 (2d Dept.,2021) a child support proceeding the Appellate Division held that the Support Magistrate providently exercised its discretion in determining to impute annual income to the mother based upon her ability to work full time for minimum wage The record established that, although the mother had worked only part time during the course of the parties’ marriage, the mother had a college degree. She offered no evidence to support her assertions that she was unable to work full time because she was needed to care for her elderly parents and the parties’ younger child, and because of undisclosed health limitations. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Support Magistrate also providently exercised its discretion in determining to impute income to the mother for monthly housing costs paid by her brother-in-law. In imputing income to a party for the purpose of calculating support obligations under the CSSA, a court may consider, inter alia, money received from relatives or friends. Although such contributions may properly be excluded where the obligor party refuses to provide support during the pendency of the proceedings here, the father had consistently made voluntary support payments to the mother since the parties’ separation in 2015.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Support Magistrate did not err in failing to impute income to the father on the ground that he lived in an uncle’s home with no obligation to pay rent. The evidence demonstrated that the father was living in his uncle’s home in exchange for having assisted the uncle with refinancing the home and acted as a cosigner for the new mortgage loan without taking an interest in the real property.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Support Magistrate properly calculated the father’s income from employment based upon his most recent tax return (see Family Ct Act § 413[1][b][5][i]). While the Support Magistrate had the discretion to consider the father’s recent pay increase, which took effect approximately one month before the hearing, it was not required to do so.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division, Third Department</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span> <span style="white-space: pre;"> </span></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Improper to rely on hearsay testimony in Fact Finding portion of Neglect proceeding where only competent, material and relevant evidence may be admitted</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In the Matter of Aiden J. ,197 A.D.3d 798, 151 N.Y.S.3d 558, 2021 N.Y. Slip Op. 04637 (3d Dept.,2021) neglect proceedings against respondent stemming from allegations that he left the middle and youngest children in the mother’s care while knowing that the mother was highly intoxicated Family Court found, inter alia, that respondent neglected the middle and youngest children. The Appellate Division reversed. It pointed out that at a hearing to establish neglect, “only competent, material and relevant evidence may be admitted” (Family Ct Act § 1046[b][iii]). The record disclosed that at respondent’s hearing, which the mother was not a party to, petitioner’s caseworker testified as to what the mother had told her based upon their conversations. The caseworker stated that the mother told her that, while the middle and youngest children were with her, she had been drinking heavily, that the mother believed that she may have assaulted one of the children and that, after respondent took the children for a while, he came back to her with some vodka, which she drank. It held that Family Court improperly relied on this hearsay testimony – i.e., what the mother told the caseworker – in reaching its determination and the error in doing so was not harmless (compare Matter of Jack NN. [Sarah OO.], 173 A.D.3d 1499, 1503 [2019]).<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;">Parent seeking modification of custody order who alleges change of circumstances in own petition waives contention that the other parent failed to establish a change of circumstances in support of his own petition </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Fowler v Rothman, --- N.Y.S.3d ----, 2021 WL 4704210, 2021 N.Y. Slip Op. 05436 (4th Dept., 2021) a custody modification proceeding, the Appellate Division held that the mother waived her contention that the father failed to establish a change of circumstances warranting an inquiry into the best interests of the children inasmuch as she alleged in her own petition that there had been such a change in circumstances.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;">An agency generally does not need to establish diligent efforts when a court is determining whether to revoke a suspended judgment. Lapses on the part of petitioner do not excuse the failure to comply with the terms of the suspended judgment.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Christina S., --- N.Y.S.3d ----, 2021 WL 4704056 (Mem), 2021 N.Y. Slip Op. 05430 (4th Dept., 2021) the Appellate Division affirmed an order that, inter alia, granted petitioner’s motion to revoke a suspended judgment that had been entered upon the father’s admission to permanently neglecting the child and freed the child for adoption. Although the father placed the blame for his failure to comply on lapses by petitioner agency and its supervisory obligations and its failure to consult with an expert, even lapses by an agency during a suspended judgment do not relieve a parent of his or her duty to comply with the terms of the suspended judgment. The father’s further contention regarding petitioner’s purported failure to establish that it exercised diligent efforts to encourage and strengthen his parental relationship with the child lacked merit. An agency generally does not need to establish diligent efforts when a court is determining whether to revoke a suspended judgment. Any lapses on the part of petitioner do not excuse the failure to comply with the terms and conditions of the suspended judgment.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Supreme Court</span></b><b><span style="font-family: arial;"><br /></span></b><span style="white-space: pre;"><b><span style="font-family: arial;"> <br /></span></b></span><b><span style="font-family: arial;">In-person parental access by defendant denied as not in the child’s best interests, where he refused to be vaccinated against Covid-19</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In C.B., v. D.B., Defendant, --- N.Y.S.3d ----, 2021 WL 4696606, 2021 N.Y. Slip Op. 21268 (Sup. Ct.,2021) the Court found that in-person parental access by defendant was not in the child’s best interests, where he refused to be vaccinated against Covid-19, and there were exceptional circumstances that supported granting plaintiffs motion for temporary suspension of visitation in person. It found that requiring defendant and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing to be in the child’s best interests</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Failure to specifically request equitable distribution is not a waiver of claim for equitable of marital property where pleading requests “such other and further relief.”</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In N.O. v T.F. O, 2021 WL 4448980 (Sup. Ct., 2021) an action for a judgment of divorce, the answer filed by the husband demanded a judgment of divorce and “such other and further relief as to the Court may seem just and proper.” Supreme Court rejected the wife’s claim that the failure to specifically request equitable distribution, particularly when he did request “such other and further relief,” constituted a waiver of the husband’s claim for equitable of marital property. Because this matter was a matrimonial matter, it seemed reasonable that “the other and further relief” requested would include all financial and other issues that arise in a divorce action, including equitable distribution and support. Schiller v. Weinstein, 45 Misc. 591 (Sup. Ct App. Term 1904)(nature of the relief asked in a decree must be such as could bring it within the meaning of “other and further relief,”). </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Numerous errors by Trial Court Require Remittal for New Determinations</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Kiani v Kiani, --- N.Y.S.3d ----, 2021 WL 4185717, 2021 N.Y. Slip Op. 04971 <br /></span></b><b><span style="font-family: arial;">--- N.Y.S.3d ----, 2021 WL 4185717, 2021 N.Y. Slip Op. 04971(2d Dept.,2021) the plaintiff and the defendant were married in Pakistan on October 29, 2006. They had two children of the marriage, one born in 2008 and the other in 2011. The parties separated in June 2012, and the plaintiff commenced the action for a divorce in 2014 . Following the trial, he court, inter alia, determined that the defendant was obligated to pay to the plaintiff $1,961.83 per month for child support and $14,250 per year for maintenance, determined that the plaintiff was entitled to $42,018.55 in attorney’s fees, a credit of $22,000 for payments already made to reduce a mortgage and an award of 50% of the defendant’s credit accounts and 401(k) accounts, and determined that the defendant was required to return the plaintiff’s jewelry or pay her $5,000. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held that Supreme Court erred in calculating the defendant’s child support obligation based on testimony regarding his yearly income instead of his most recent tax return. “The Child Support Standards Act requires the court to establish the parties’ basic child support obligation as a function of the ‘gross (total) income’ that is, or should have been, reflected on the most recently filed income tax return (Family Ct Act § 413[1][b][5][I])”.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The amount and duration of a maintenance award are a matter within the sound discretion of [the] Supreme Court, and the award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered. The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance. Here, the court offered no explanation for its award of maintenance.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division further held that the Supreme Court improperly calculated the parties’ pro rata shares of the plaintiff’s attorney’s fees. The income imputed by the Supreme Court to the parties to determine their pro rata shares of the plaintiff’s attorney’s fees was not supported by the record.. It further held that Supreme Court erred in valuing the plaintiff’s jewelry at $5,000, as no evidence existed in the record to support that valuation. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>Finally, the Supreme Court failed to explain which, if any, factors it considered in reaching its conclusion concerning equitable distribution of the defendant’s credit accounts and 401(k) accounts.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division modified the judgment of divorce and the matter was remitted to the Supreme Court for a new determination of the amount of the defendant’s child support obligation, a new determination, with explanation, as to the amount, if any, of the defendant’s maintenance obligation, a new determination as to the amount, if any, to be awarded to the plaintiff for her attorney’s fees, a determination as to the value of the plaintiff’s jewelry and a new determination, with explanation, as to the equitable division of the defendant’s credit accounts and 401(k) accounts.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>Agency must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination for custodial statements of juvenile to be admissible. Issue is determined upon an inquiry into the totality of the circumstances</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> <span style="white-space: pre;"> </span>In Matter of Tyler L, 150 N.Y.S.3d 747 (2d Dept.,2021) the Presentment Agency filed a petition alleging that the appellant, who was then 15 years old, committed acts which, if committed by an adult, would have constituted crimes with respect to his 11–year–old sister. Upon arrest, the appellant was interviewed by law enforcement officials in the presence of his grandfather. During the 35–minute interview, which was videotaped, the appellant made certain incriminating statements. The appellant moved to suppress his statements to law enforcement officials. After a hearing, the Family Court denied the appellant’s motion. The Appellate Division held that Family Court properly denied the appellant’s motion to suppress his statements to law enforcement officials. The Presentment Agency must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination for custodial statements to be admissible (see People v. Cleverin, 140 A.D.3d 1080, 1081, 34 N.Y.S.3d 136). “Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation, including the defendant’s age, experience, education, background, and intelligence, and ... whether he [or she] has the capacity to understand the warnings given him [or her], the nature of his [or her] Fifth Amendment rights, and the consequences of waiving those rights”. Here, the videotape showed that the appellant and his grandfather were brought into an interview room of a police precinct, where Miranda warnings for juveniles were read and written copies of the warnings were given to the appellant and his grandfather. The videotape also showed that, while the written Miranda form was never signed, both the appellant and his grandfather waived the appellant’s Miranda rights after the rights had been read. The videotape demonstrated that the Miranda warnings were read in a manner that was clear and deliberate, and that the appellant and his grandfather understood those rights and voluntarily waived them. The appellant’s expert stated that the appellant had a basic comprehension and understanding of Miranda rights at the time of his testing consistent with other 15–year–old adolescents of comparable abilities. The conclusion of the appellant’s expert that the appellant could not have made an intelligent, knowing, and voluntary waiver of his Miranda rights during police questioning was undermined by evidence of the appellant’s completion of a test that required answers to 189 written questions in 20 minutes. Thus, the Family Court’s determination that the appellant’s Miranda waiver was voluntary, knowing, and intelligent was supported by the evidence. The absence of a signed waiver form required no different result.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division, Third Department</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Where plaintiff spouse seeks an annulment based upon fraud in the inducement, the fraud must be proven by clear and convincing evidence. <br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Travis A v Vilma B., 2021 WL 4200934 (3d Dept.,2021) the Plaintiff (husband), a United States citizen, and defendant ( wife), a citizen of the Philippines, met online in February 2018 and got engaged in June 2018, during the first of the husband’s two trips to the Philippines. In April 2019, the wife entered the United States on a K–1 (fiancée) visa and moved in with the husband. Several weeks later, on June 8, 2019, the parties were married. However, the marriage rapidly deteriorated, with the wife moving out of the marital home less than two weeks after the wedding. In July 2019, the husband commenced this action seeking an annulment based upon the wife’s alleged fraud in the inducement. The husband alleged that the wife married him “with the sole purpose of becoming a U.S. [c]itizen.” The wife denied the husband’s allegation of fraud in the inducement and asserting that the husband had perpetrated acts of domestic violence against her and that she “removed herself from the marital premises for her own safety.” Supreme Court found that the wife had fraudulently induced the husband to marry her to obtain citizenship and that the husband was entitled to an annulment. The Appellate Division reversed. It observed that where the plaintiff spouse seeks an annulment based upon fraud in the inducement, the fraud must be proven by clear and convincing evidence. The husband’s case of fraud in the inducement was premised upon his claim that the wife induced him to marry through false representations of love and affection for the sole purpose of obtaining an immigration benefit. The husband, however, failed to prove that claim at trial, as his proof fell far short of demonstrating a fraudulent premarital intent on the part of the wife. Supreme Court erred by not holding the husband to his burden of proof, relying too heavily upon the wife’s belated filing of a family offense petition in another county and taking a negative inference against the wife for purportedly exploring relief under the Violence Against Women Act. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Appellate Division, Fourth Department</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Unilateral Relocation nunc pro tunc permitted where mother alleged a “continuous and relentless cycle of domestic violence” perpetrated by the father causing her to fear for her safety</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Robert C. E., v. Felicia,197 A.D.3d 100, 151 N.Y.S.3d 301, 2021 N.Y. Slip Op. 04306 (4th Dept.,2021) a prior order of custody and visitation awarded the mother sole custody of the child with visitation to the father. That order included a provision prohibiting either parent from permanently removing the child from Monroe County without the written consent of the other parent or a court order. Despite that provision, the mother unilaterally relocated to Arizona with the five-year-old child. Approximately one year later, the father discovered the mother’s whereabouts and commenced this proceeding by way of petition seeking custody of the child. The mother filed a cross petition seeking permission to relocate nunc pro tunc. She asserted that she relocated due to a “continuous and relentless cycle of domestic violence” perpetrated by the father.<span style="white-space: pre;"> </span>At a hearing on the petition and cross petition, the mother testified about instances of domestic violence perpetrated by the father. As a result of incidents of domestic violence causing her to fear for her safety the mother and her fiancé decided to move cross-country in order to ensure her safety and that of the child. She chose a location in Arizona based on the quality of the schools, affordability, and relative closeness to family in California. She did not inform the father or request permission of the court out of fear of retaliation from the father. The father denied the allegations of domestic violence, . He did not have a job or a driver’s license. He lived with his brother in exchange for providing child care. He had never paid child support. If he were awarded custody of the child, he would rely on his brother to pay for and transport the child to private school. The trial court found the father’s testimony not to be credible. The mother, in contrast, “gave honest and truthful testimony,” particularly concerning instances of domestic violence perpetrated by the father in the child’s presence and threats made towards the mother. The child’s maternal grandmother, who corroborated portions of the mother’s testimony at the hearing, gave “exceptionally credible” testimony. The court found that the mother’s fear of the father “was not feigned or pre-textual,” and that her decision to relocate without informing him was not to deprive him of visitation, but to protect her own safety. Although the court stated that her conduct in doing so “cannot be condoned,” it denied the father’s petition for custody due to his own “fundamental unfitness,” granted the mother’s cross petition for permission to relocate with the child, and awarded visitation to the father in Monroe County. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division affirmed. It held that 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 a recalcitrant parent. In determining the best interests of the child, the court is free to consider and give appropriate weight to all of the factors that may be relevant to the determination” (Matter of Tropea v. Tropea, 87 N.Y.2d 727). Courts place considerable weight on the effect of domestic violence on the child, particularly when a continuing pattern of domestic violence perpetrated by the child’s father compels the mother to relocate out of legitimate fear for her own safety, or where the father minimized the past incidents of domestic violence. Where domestic violence is alleged in a petition for custody, the court must consider the effect of such domestic violence upon the best interests of the child. In making its determination, the court appropriately considered the fact that the mother unilaterally removed the child from the jurisdiction, determining that the mother did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence. Although the court did not countenance the mother’s decision to relocate without permission, it was the father’s violent conduct that prompted her move to Arizona in the first instance and triggered the resulting disruption of his relationship with his daughter. Furthermore, although the court did not expressly engage in the analysis required under Tropea, there was a sound and substantial basis in the record supporting the court’s determination that relocation would enhance the child[’s life] economically, emotionally, and educationally, and that the child’s relationship with the father could be preserved through a liberal parental access schedule including, but not limited to, frequent communication and extended summer and holiday visits.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Recent Legislation<br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch 509, §1 amended Domestic Relations Law §236 (B)(5)(d), effective October 25, 2021</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch 509, §1 amended Domestic Relations Law §236 (B)(5)(d), effective October 25, 2021 to renumber subparagraph 14 as subparagraph 15, and add a new subparagraph 14 is added to require that courts consider the best interest of companion animals when awarding possession of the animal during divorce or separation proceedings. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>This provision applies where it is determined that the companion animal is marital property. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The rationale for the amendment appears in the sponsors memorandum in support of the legislation. It states that custody decisions involving pets in divorce proceedings are not uncommon. Courts typically deal with pets in divorce proceedings as they do with personal property such as cars and furniture. For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce. It observed that in "2017, Alaska became the first state in the country to require courts to consider the welfare of household pets when determining custody of such pets in divorce proceedings. It is now time for New York to pass similar legislation." It appears that the sponsors believed that if it is good for Alaska, it is good for New York. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>While companion animals have come to be considered “a special category of property “and the Appellate Division has pointed out in dicta that “the courts have recognized the “cherished status” accorded to pets in our society” under New York law dogs and cats are still considered personal property. Dogs and cats are chattels. as are other animals. That is why Courts “deal with pets in divorce proceedings as they do with personal property.” The effect of Domestic Relations Law §236 (B)(5)(d) (14) is to require the courts to take into consideration the best interests of personal property when awarding its possession to either spouse. That appears to be a task that courts are not equipped to handle. Following Domestic Relations Law §236 (B)(5)(d) (14) to its logical or illogical conclusion, it appears that the parties to a matrimonial action involving a companion animal may be required to provide pre-trial disclosure under CPLR 3101(d)(i) of the identity of pet experts and the subject matter on which each expert is expected to testify and permit the parties to call experts at trial to testify as to the best interests of their dog or cat. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>Domestic Relations Law §236 (B)(5)(d) (14) requires courts to consider the “best interest of companion animals” when awarding possession of the animal during divorce or separation proceedings. The best interest analysis in dog custody case has been rejected for good reasons by some lower courts. The Supreme Court in New York county has said that “…the wholesale application of the practices and principles associated with child custody cases to dog custody cases is unworkable and unwarranted. …[I]t is impossible to truly determine what is in a dog's best interests. …, Too, there is no proven or practical means of gauging a dog's happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag. The subjective factors that are key to a best interests analysis in child custody…are, for the most part, unascertainable when the subject is an animal rather than a human…[I]t is highly questionable whether significant resources should be expended and substantial time spent on such endeavors. It is no secret that our courts are overwhelmed with child custody cases, cases in which the happiness and welfare of our most precious commodity, children, are at stake. To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children. Such a drain of judicial resources is unthinkable. </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>Domestic Relations Law §236 (B)(5)(d)(14) and (15), effective October 25, 2021 read as follows:</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> (14) whether either party has committed an act or acts of domestic<br /></span></b><b><span style="font-family: arial;"> violence, as described in subdivision one of section four hundred<br /></span></b><b><span style="font-family: arial;"> fifty-nine-a of the social services law, against the other party and the<br /></span></b><b><span style="font-family: arial;"> nature, extent, duration and impact of such act or acts; <br /></span></b><b><span style="font-family: arial;"> (15) in awarding the possession of a companion animal, the court shall<br /></span></b><b><span style="font-family: arial;"> consider the best interest of such animal. "Companion animal", as used<br /></span></b><b><span style="font-family: arial;"> in this subparagraph, shall have the same meaning as in subdivision five<br /></span></b><b><span style="font-family: arial;"> of section three hundred fifty of the agriculture and markets law; and<br /></span></b><b><span style="font-family: arial;"> (16) any other factor which the court shall expressly find to be just<br /></span></b><b><span style="font-family: arial;"> and proper.<br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch 437, §1 amended the Domestic Relations Law to add Domestic Relations Law § 240-d.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch 437, §1 amended the Domestic Relations Law to add Domestic Relations Law § 240-d. Support orders for certain adult dependents, effective October 8, 2021 to provide that a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse and certain other professionals.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">The purpose of this legislation is to aid families and dependent adults who have surpassed the age of majority for child support, but have developmental disabilities that necessitate a living allowance. This award amount would be at the discretion of the Court, where the individual has a diagnosis of a developmental disability, as defined in the Mental Hygiene Law, resides with the person seeking the support, and is principally dependent on the person for maintenance. (See 2021 NY Legis Memo 437)<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;">Domestic Relations Law § 240-d provides:<br /></span></b><b><span style="font-family: arial;">1. Notwithstanding any other law, a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined in subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under title eight of the education law, and acting within their lawful scope of practice.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;">2. Upon petition brought by such person, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one-b of section two hundred forty of this article. In addition to the provisions of subdivision one-b of section two hundred forty of this article, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;">3. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such adult dependents, as well as to enforce or modify orders or judgments.<br /></span></b><b><span style="font-family: arial;">4. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “exception trust” as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause (iii) of subparagraph two of paragraph (b) of subdivision two of section three hundred sixty-six of the social services law, and section 7-1.12 of the estates, powers and trusts law if such direction would assist in maximizing assistance to the child.<br /></span></b><b><span style="font-family: arial;">5. Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities. (Added L.2021, c. 437, § 1, eff. Oct. 8, 2021.)<br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch 437 amended the Family Court Act, to add Family Court Act § 413-b effective October 8, 2021</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch 437 amended the Family Court Act, to add Family Court Act § 413-b effective October 8, 2021 to provide that a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse and certain other professionals</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Family Court Act § 413-b provides:</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">§ 413-b. Support orders for certain adult dependents<br /></span></b><b><span style="font-family: arial;">1. Notwithstanding any other law, a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under title eight of the education law, and acting within their lawful scope of practice.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> 2. Upon petition brought by the parent or kinship caregiver of an adult child with a disability, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one of section four hundred thirteen of this part. In addition to the provisions of subdivision one of section four hundred thirteen of this part, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the child support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> 3. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such dependents, as well as to enforce or modify orders or judgments.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> 4. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “exception trust” as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause (iii) of subparagraph two of paragraph (b) of subdivision two of section three hundred sixty-six of the social services law, and section 7-1.12 of the estates, powers and trusts law if such direction would assist in maximizing assistance to the child.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> 5. Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities. (Added L.2021, c. 437, § 2, eff. Oct. 8, 2021.)</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch 442 enacted the "Blind persons right to parent act" which amended the Domestic Relations Law and Family Court Act</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch 442 enacted the "Blind persons right to parent act" which <br /></span></b><b><span style="font-family: arial;">amended the Domestic Relations Law and Family Court Act to prohibit the making of decisions concerning guardianship, custody or visitation or adoption petitions solely on the basis of a parent's, guardian's or custodian's blindness; prohibit the department of social services from denying, deciding or opposing a petition or request for guardianship, custody or visitation solely because the petitioner is blind and prohibit the department of social services from taking actions solely because a parent, custodian or guardian is blind. Became a law October 8, 2021. Effective 90 days after it became a law.<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> Laws of 2021, Ch 442, § 3 amended the domestic relations law by adding a new section. Domestic Relations Law § 75-m to read as follows:<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> § 75-m. Consideration of blindness during guardianship, custody or<br /></span></b><b><span style="font-family: arial;"> visitation proceedings. 1. The court may not deny or decide a petition<br /></span></b><b><span style="font-family: arial;"> for guardianship, custody or visitation solely on the basis that the<br /></span></b><b><span style="font-family: arial;"> petitioner is blind. The blindness of the petitioner shall be considered<br /></span></b><b><span style="font-family: arial;"> relevant only to the extent that the court finds, based on evidence in<br /></span></b><b><span style="font-family: arial;"> the record, that the blindness affects the best interests of the child<br /></span></b><b><span style="font-family: arial;"> whose guardianship, custody or visitation is the subject of the peti-<br /></span></b><b><span style="font-family: arial;"> tion.<br /></span></b><b><span style="font-family: arial;"> 2. As used in this section, "blind" or "blindness" means:<br /></span></b><b><span style="font-family: arial;"> a. vision that is 20/200 or less in the best corrected eye; or<br /></span></b><b><span style="font-family: arial;"> b. vision that subtends an angle of not greater than twenty degrees in<br /></span></b><b><span style="font-family: arial;"> the best corrected eye.<br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> Laws of 2021, Ch 442, § 4 amended the domestic relations law by adding a new section. Domestic Relations Law § 111-d to read as follows:</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> § 111-d. Consideration of blindness during adoption proceedings. 1.<br /></span></b><b><span style="font-family: arial;"> The court may not deny or decide a petition for adoption solely on the<br /></span></b><b><span style="font-family: arial;"> basis that the petitioner is blind. The blindness of the petitioner<br /></span></b><b><span style="font-family: arial;"> shall be considered relevant only to the extent that the court finds,<br /></span></b><b><span style="font-family: arial;"> based on evidence in the record, that the blindness affects the best<br /></span></b><b><span style="font-family: arial;"> interests of the child whose adoption is the subject of the petition.<br /></span></b><b><span style="font-family: arial;"> 2. As used in this section, "blind" or "blindness" means: <br /></span></b><b><span style="font-family: arial;"> a. vision that is 20/200 or less in the best corrected eye; or<br /></span></b><b><span style="font-family: arial;"> b. vision that subtends an angle of not greater than twenty degrees in<br /></span></b><b><span style="font-family: arial;"> the best corrected eye.<br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> Laws of 2021, Ch 442, § 5 amended the family court act by adding a new section, Family Court Act §643 to read as follows:</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> § 643. Consideration of blindness during adoption proceedings. 1. The<br /></span></b><b><span style="font-family: arial;"> court may not deny or decide a petition for adoption solely on the basis<br /></span></b><b><span style="font-family: arial;"> that the petitioner is blind. The blindness of the petitioner shall be<br /></span></b><b><span style="font-family: arial;"> considered relevant only to the extent that the court finds, based on<br /></span></b><b><span style="font-family: arial;"> evidence in the record, that the blindness affects the best interests of<br /></span></b><b><span style="font-family: arial;"> the child whose adoption is the subject of the petition.<br /></span></b><b><span style="font-family: arial;"> 2. As used in this section, "blind" or "blindness" means:<br /></span></b><b><span style="font-family: arial;"> a. vision that is 20/200 or less in the best corrected eye; or<br /></span></b><b><span style="font-family: arial;"> b. vision that subtends an angle of not greater than twenty degrees in<br /></span></b><b><span style="font-family: arial;"> the best corrected eye.<br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> Laws of 2021, Ch 442, § 6 amended the family court act by adding a new section, Family Court Act § 658 to read as follows:<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> § 658. Consideration of blindness during guardianship, custody or<br /></span></b><b><span style="font-family: arial;"> visitation proceedings. 1. The court may not deny or decide a petition<br /></span></b><b><span style="font-family: arial;"> for custody or visitation under this part or guardianship under part<br /></span></b><b><span style="font-family: arial;"> four of this article solely on the basis that the petitioner is blind.<br /></span></b><b><span style="font-family: arial;"> The blindness of the petitioner shall be considered relevant only to the<br /></span></b><b><span style="font-family: arial;"> extent that the court finds, based on evidence in the record, that the<br /></span></b><b><span style="font-family: arial;"> blindness affects the best interests of the child whose guardianship,<br /></span></b><b><span style="font-family: arial;"> custody or visitation is the subject of the petition.<br /></span></b><b><span style="font-family: arial;"> 2. As used in this section, "blind" or "blindness" means:<br /></span></b><b><span style="font-family: arial;"> a. vision that is 20/200 or less in the best corrected eye; or<br /></span></b><b><span style="font-family: arial;"> b. vision that subtends an angle of not greater than twenty degrees in<br /></span></b><b><span style="font-family: arial;"> the best corrected eye.<br /></span></b><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> Laws of 2021, Ch 442, § 7 amended the social services law by adding a new section, social services law §393 to read as follows:<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> § 393. Consideration of blindness during guardianship, custody or<br /></span></b><b><span style="font-family: arial;"> adoption proceedings. 1. The department may not deny, decide or oppose a<br /></span></b><b><span style="font-family: arial;"> petition or request for guardianship, custody or visitation under this<br /></span></b><b><span style="font-family: arial;"> article solely on the basis that the petitioner, parent, guardian or<br /></span></b><b><span style="font-family: arial;"> custodian is blind. The blindness of the petitioner, parent, guardian or<br /></span></b><b><span style="font-family: arial;"> custodian shall be considered relevant only to the extent that the<br /></span></b><b><span style="font-family: arial;"> blindness affects the best interests of the child whose guardianship,<br /></span></b><b><span style="font-family: arial;"> custody or visitation is the subject of the petition.<br /></span></b><b><span style="font-family: arial;"> 2. The department shall not seek custody or guardianship of a child<br /></span></b><b><span style="font-family: arial;"> solely because the child's parent, guardian or custodian is blind. The<br /></span></b><b><span style="font-family: arial;"> blindness of the parent, guardian or custodian shall be considered rele-<br /></span></b><b><span style="font-family: arial;"> vant only to the extent that the blindness affects the best interests of<br /></span></b><b><span style="font-family: arial;"> the child whose guardianship, custody or visitation is the subject of<br /></span></b><b><span style="font-family: arial;"> the petition.<br /></span></b><b><span style="font-family: arial;"> 3. As used in this section, "blind" or "blindness" means:<br /></span></b><b><span style="font-family: arial;"> a. vision that is 20/200 or less in the best corrected eye; or<br /></span></b><b><span style="font-family: arial;"> b. vision that subtends an angle of not greater than twenty degrees in<br /></span></b><b><span style="font-family: arial;"> the best corrected eye.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch 456, amended Family Court Act§ 312.2 on October 8, 2021, effective 60 days after that date, to add subdivision (3)</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> Laws of 2021, Ch 456, amended Family Court Act§ 312.2 on October 8, 2021, effective 60 days after that date, to added subdivision (3), in relation to execution of warrants in juvenile delinquency cases when family courts are closed.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> <span style="white-space: pre;"> </span>The "raise the age" legislation enacted in 2017 requires accused juvenile delinquents to be brought before available accessible magistrates, designated by each Appellate Division, for pre-petition hearings during evening, weekend and holiday hours when Family Courts are not in session. See Family Court Act §§ 305.2(4), 307.3(4) L. 2017, c. 59, part www, §§ 63, 65. This legislation amends Family Court Act § 312.2 to include similar provisions for juvenile delinquents returned on warrants when Family Courts are not in session. The legislation requires juveniles in such cases to be brought before "the most accessible magistrate, if any, designated by the appellate division." The magistrates would determine whether the juveniles would be released or detained and would then set a date for the juvenile to appear in Family Court, i.e., no later than the next day the Family Court is in session if the juvenile is detained and within ten court days if the juvenile is released. In determining whether the juvenile should be released, with or without conditions, or detained, the magistrate must apply the criteria in and issue the findings required by section 320.5 of the Family Court Act. In order that Family Court would be alerted to expect the case, the order of the magistrate must be immediately transmitted to it. (See 2021 NY Legis Memo 456)<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> Family Court Act §312.2 subdivision 3 reads as follows:</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> 3. A juvenile who is arrested pursuant to a warrant issued under this<br /></span></b><b><span style="font-family: arial;"> section must forthwith and with all reasonable speed be taken directly<br /></span></b><b><span style="font-family: arial;"> to the family court located in the county in which the warrant had been<br /></span></b><b><span style="font-family: arial;"> issued, or, when the family court is not in session, to the most acces-<br /></span></b><b><span style="font-family: arial;"> sible magistrate, if any, designated by the appellate division of the<br /></span></b><b><span style="font-family: arial;"> supreme court in the applicable department. If a juvenile is brought<br /></span></b><b><span style="font-family: arial;"> before an accessible magistrate, the magistrate shall set a date for the<br /></span></b><b><span style="font-family: arial;"> juvenile to appear in the family court in the county in which the<br /></span></b><b><span style="font-family: arial;"> warrant had been issued, which shall be no later than the next day the<br /></span></b><b><span style="font-family: arial;"> court is in session if the magistrate orders the juvenile to be detained<br /></span></b><b><span style="font-family: arial;"> and within ten court days if the magistrate orders the juvenile to be<br /></span></b><b><span style="font-family: arial;"> released. In determining whether the juvenile should be released, with<br /></span></b><b><span style="font-family: arial;"> or without conditions, or detained, the magistrate shall apply the<br /></span></b><b><span style="font-family: arial;"> criterion and issue the findings required by section 320.5 of this arti-<br /></span></b><b><span style="font-family: arial;"> cle. The magistrate shall transmit its order to the family court forth-<br /></span></b><b><span style="font-family: arial;"> with.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch. 474, § 1, added amended the Family Court Act to add Family Court Act § 162-a, effective October 8, 2021</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Laws of 2021, Ch. 474, § 1, added amended the Family Court Act to add Family Court Act § 162-a, effective October 8, 2021 to provide that except as otherwise provided in Family Court Act § 162-a, restraints on children under the age of twenty-one, including, but not limited to, handcuffs, chains, shackles, irons or straitjackets, are prohibited in the courtroom.</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The legislation provides that restraints are prohibited and must presumptively be removed upon entry of a juvenile into the courtroom) unless Family Court determines and explains on the record why restraints are "necessary to prevent: (1) physical injury by the child to himself or herself or another person; (2) physically disruptive courtroom behavior, as evidenced by a recent history of behavior that presented a substantial risk of physical harm to the child or another person where the behavior indicates a substantial likelihood of current physically disruptive courtroom behavior by the child; or (3) the child's flight from the courtroom, as evidenced by a recent history of absconding from the Court." Particular restraints permitted must be the "least restrictive alternative" and, in order to ensure due process, the child must be given an opportunity to he heard regarding a request to impose restraints. The legislation further provides that, in cases where the exception is invoked, only handcuffs or footcuffs may be used and hand-<br /></span></b><b><span style="font-family: arial;">cuffs may not be joined to footcuffs. (See 2021 NY Legis Memo 474)<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>Restrictions upon use of mechanical restraints on adult offenders in<br /></span></b><b><span style="font-family: arial;">criminal trials has long been recognized as necessary to a fair trial. The US Supreme Court, in Deck v. Missouri, in rejecting routine shackling as a violation of due process, noted its origins in common law:<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"> <span style="white-space: pre;"> </span>Blackstone's 1769 Commentaries on the Laws of England noted<br /></span></b><b><span style="font-family: arial;"> that "it is laid down in our ancient books" that a defendant "must<br /></span></b><b><span style="font-family: arial;"> be brought to the bar without irons, or in any manner of shackled<br /></span></b><b><span style="font-family: arial;"> or bonds, unless there be evident dangers of an escape." 544 U.S. 622, 626 (2005). </span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>Following Deck, the New York Court of Appeals, in People v. Best, 39 N.Y.3d 739 (2012), criticized a defendant's shackling in a bench trial in the absence of a showing of necessity on the record, noting that "judges are human, and the sight of a defendant in restraints may unconsciously influence even a judicial factfinder," in<br /></span></b><b><span style="font-family: arial;">addition to harming the defendant and the public's perception of both the defendant "and of criminal proceedings generally." Chief Judge Lippman, dissenting from the majority's conclusion that use of restraints constituted harmless error, observed that "(t)he unwarranted shackling of defendants strikes at the very heart of the right to be presumed innocent. Visible shackles give the impression to any trier of fact<br /></span></b><b><span style="font-family: arial;">that a person is violent, a miscreant, and cannot be trusted." More recently, in United States v. Haynes, 729 F.3d 178, 188 (2nd Cir., 2013), the US Court of Appeals, Second Circuit, held that:<br /></span></b><b><span style="font-family: arial;"> <br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>It is beyond dispute that a defendant may not be tried in shackles<br /></span></b><b><span style="font-family: arial;">unless the trial judge finds on the record that it is necessary to use such a restraint as a last resort to satisfy a compelling interest such as preserving the safety of persons in the courtroom. Arguments for restricting use of restraints upon adult offenders are<br /></span></b><b><span style="font-family: arial;">even more compelling with respect to children. Not only is use of shackles an infringement upon the presumption of innocence at the fact-finding (trial) stage, it also impedes the ability and willingness of youth to participate in court proceedings, including dispositional and permanency hearings, and to engage in planning for their futures. Juveniles are critical participants in such hearings. See Family Court Act §§<br /></span></b><b><span style="font-family: arial;">341.2(1), 355.5(8), 756-a(d-1). (See 2021 NY Legis Memo 474)</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Legislation solely addresses courtroom appearances. A similar<br /></span></b><b><span style="font-family: arial;">presumption currently applies to use of restraints during transportation of juveniles from New York State Office of Children and Family Services facilities pursuant to an injunction issued in the class action case of Matter of John F. v. Carrion, -Misc.3d-, N.Y.L.J., Jan. 27, 2010 (S.Ct., N.Y.Co., 2010). (See 2021 NY Legis Memo 474)</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;">Family Court Act § 162-a provides:<br /></span></b><b><span style="font-family: arial;">(a) Use of restraints. Except as otherwise provided in subdivision (b) of this section, restraints on children under the age of twenty-one, including, but not limited to, handcuffs, chains, shackles, irons or straitjackets, are prohibited in the courtroom.<br /></span></b><b><span style="font-family: arial;">(b) Exception. Permissible physical restraint consisting of handcuffs or footcuffs that shall not be joined to each other may be used in the courtroom during a proceeding before the court only if the court determines on the record, after providing the child with an opportunity to be heard, why such restraint is the least restrictive alternative necessary to prevent:<br /></span></b><b><span style="font-family: arial;">(1) physical injury to the child or another person by the child;<br /></span></b><b><span style="font-family: arial;">(2) physically disruptive courtroom behavior by the child, as evidenced by a recent history of behavior that presented a substantial risk of physical harm to the child or another person, where such behavior indicates a substantial likelihood of current physically disruptive courtroom behavior by the child; or<br /></span></b><b><span style="font-family: arial;">(3) flight from the courtroom by the child, as evidenced by a recent history of absconding from the court. (Added L.2021, c. 474, § 1, effective Oct. 8, 2021.)</span></b><b><span style="font-family: arial;"><br /></span></b><b><span style="font-family: arial;"><br /></span></b></div><p><br /></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-48336566691855412232021-09-22T12:27:00.004-04:002021-09-22T12:27:40.645-04:00Recent Decisons September 16, 2021<p> <strong style="color: #2a2a2a; font-family: Arial; font-size: 16px;"><u>September 16, 2021</u></strong></p><span style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px; font-weight: 700;"> <br /> <br /><a style="color: #5199a8; transition: all 0.2s ease-in-out 0s;"><strong><u>Appellate Division, First Department</u></strong></a><br /> <br /><strong>Disposition of prior petition to terminate mother parental rights which was favorable to the biological mother, did not preclude the findings of extraordinary circumstances in later kinship guardianship proceeding.</strong><br /><br /><strong> In Matter of Guardianship of Nicolas Jude B., 195 A.D.3d 402, 150 N.Y.S.3d 58 (1st Dept.,2021) ,in 2008, the biological mother was found to have neglected the child. The child was subsequently placed in the care of the foster mother when the child was approximately four years old and remained in her care for over 10 years. Family Court granted the foster mother’s petition to be appointed kinship guardian of the child. The Appellate Division affirmed. It found that the evidence established that extraordinary circumstances existed as a result of the prolonged separation between the biological mother and child (see Matter of Caron C.G.G. [Alicia G.–––Jasmine D.], 165 A.D.3d 476, 85 N.Y.S.3d 430 [1st Dept. 2018]). Although more than 10 years had passed since the finding of neglect, the biological mother failed to gain insight into or even acknowledge the conditions that led to the child’s removal from her home. Instead, she denied any mental health-related issues and maintained that the child remained in foster care because the agency wanted to fraudulently collect foster care payments from the government. Her contact with the child continued to be limited to telephone calls and daytime visits in the community because she refused to allow a caseworker to conduct a home visit. She made minimal progress with her service plan. At the time of the fact-finding hearing, she had not been in touch with the agency for approximately six months. Even prior, she failed to attend the family team meetings and provide the agency with any information about her compliance with mental health services.</strong><br /><strong> The Appellate Division also held that the disposition of a prior petition to terminate her parental rights in 2013, which was favorable to the biological mother, did not preclude the findings in this later kinship guardianship proceeding.</strong><br /> <br /> <br /><strong><u>Appellate Division, Third Department</u></strong><br /> <br /> <br /><strong>Improper to discredit Respondent’s denial of paternity on the basis that he never definitively took steps to dissuade the child or anyone else that he was NOT the father</strong><br /> <br /><strong> In Matter of Montgomery County Dept of Social Services o/b/o Donavin E, v Trini G 195 A.D.3d 1069, 149 N.Y.S.3d 667 (3d Dept.,2021) petitioner commenced a proceeding seeking to establish paternity and collect child support on behalf of the child (born in 2005), who was in its care. The child was 13 years old, and had no adjudicated father and no father listed on his birth certificate. The proceeding was initially brought against respondent Trini G., with whom the mother and the child lived for approximately nine years and who was alleged to have held himself out as the child’s father. In June 2018, based upon allegations that respondent Reymond F. was the child’s father, Reymond F. was added as a named respondent to the petition. Reymond F. then sought an order for a genetic marker test, which petitioner opposed on the ground of equitable estoppel. Family Court denied the request, finding that Reymond F., who “never definitively took steps to dissuade the child or anyone else that he was NOT the father,” was equitably estopped from denying paternity. Family Court granted petitioner’s application.</strong><br /> <br /><strong> The Appellate Division vacated the order and directed a genetic marker test.</strong><br /><strong> It observed that Petitioner, as the party asserting equitable estoppel here, must first make prima facie showing that [Reymond F.] and the child had a parent-child relationship, so as to shift the burden to [Reymond F.] to prove that it was nonetheless in the child’s best interests to order genetic marker testing.” Pursuant to Family Ct Act § 532(a), a genetic marker test may not be ordered if it is not in the best interests of the child on the basis of equitable estoppel. In the application of the doctrine of equitable estoppel it is the child’s justifiable reliance on a representation of paternity that is considered. It held that Family Court erred in denying Reymond F’s request for a genetic marker test, resulting in equitably estopping him from denying paternity. The trial testimony established that the mother and Trini G., the mother’s boyfriend with whom she and her children lived for nine years (from the time the child was two to three months old), “co-parented” all of the children by contributing financially to their care and feeding, bathing and playing with them. Trini G. referred to the child as “stepson” and the child called him “daddy.” The record established that Reymond F. had no contact with the child since birth, except during sporadic visits between Reymond F. and his two older children. Reymond F. testified that he did not do “anything” with the child during these visits, was not called “dad” and did not call the child “son.” He testified that he never called the child on the phone, never gave him gifts and never checked on his educational or medical issues. The mother testified that, while she did not encourage the child to have a relationship with Reymond F., the child knew that Reymond F. was his biological father. Family Court, in crediting the mother’s testimony that she and Reymond F. were in an exclusive sexual relationship at the time the child was conceived, discredited Reymond F.’s denial of paternity since “[h]e never definitively took steps to dissuade the child or anyone else that he was NOT the father.” However, the court may have overlooked the absence in the record of any indication that Reymond F. played a significant role in raising, nurturing or caring for the child provided food, clothing and shelter for the child for most of his life or otherwise carried out all the traditional responsibilities of a father. It found that petitioner failed to make prima facie showing of a recognized and operative parent-child relationship where the status interests of the child needed to be protected by imposing equitable estoppel. A review of the record did not reveal that the child would suffer irreparable loss of status or other physical or emotional harm if a genetic marker test were ordered. It found that Family Court’s determination to apply equitable estoppel to preclude genetic marker testing was not supported by a sound and substantial basis in the record. The order was reversed and the matter remitted for a genetic marker test to be administered.</strong><br /> <br /> <br /><strong><u> Appellate Division, Fourth Department</u></strong><br /> <br /> <br /><strong>Despite rebuttable presumption that counsel fees shall be awarded to less monied spouse denial of attorney’s fees not an abuse of discretion where largely based on courts assessment of defendant’s credibility regarding her own finances, her failure to fully account for large sums of money, and to fully account for assets belonging to plaintiff that she purportedly used for his benefit</strong><br /> <br /><strong> In Iannazzo v Iannazzo, --- N.Y.S.3d ----, 2021 WL 3782924, 2021 N.Y. Slip Op. 04852(4th Dept., 2021) the parties were married in October 2006 and physically separated in 2014. Supreme Court subsequently appointed a guardian for plaintiff pursuant Mental Hygiene Law 81. Plaintiff commenced the divorce action in 2019. Following a trial, Supreme Court denied denying defendant’s motion seeking, among other things, attorney’s fees, and granted plaintiff a divorce.</strong><br /> <br /><strong> The Appellate Division held that the court did not err in denying the wife’s her request for attorney’s fees. “The award of reasonable counsel fees is a matter within the sound discretion of the trial court. In exercising its discretion to award such fees, a court may consider all of the circumstances of a given case, including the financial circumstances of both parties, the relative merit of the parties’ positions ..., the existence of any dilatory or obstructionist conduct ..., and the time, effort and skill required of counsel. Pursuant to Domestic Relations Law § 237 (a), there exists “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” Here, the court’s determination to deny defendant’s request for attorney’s fees was largely based on its assessment of defendant’s credibility at trial regarding the state of her own finances, her failure to fully account for large sums of money that she had received, and her failure to fully account for assets belonging to plaintiff that she purportedly used for his benefit during the period they were separated. Giving due deference to the court’s credibility determinations it concluded that the court did not abuse its discretion in denying defendant’s request for attorney’s fees.</strong><br /> <br /><strong> The Appellate Division agreed with defendant that the court erred in its calculation of post-divorce maintenance under the guidelines prescribed by Domestic Relations Law § 236 (B) (6). Specifically, when determining the amount of plaintiff’s income for the purposes of fashioning a post-divorce maintenance award, the court excluded plaintiff’s military pension. Although the court properly determined that the military pension was separate property and not subject to equitable distribution, that pension should have been included as income for the purposes of determining post-divorce maintenance. By failing to include plaintiff’s pension in its calculation of income for purposes of post-divorce maintenance, the court’s initial calculation of the amount of maintenance under the guidelines (see § 236 [B] [6] [c]) was incorrect. It remitted the matter for recalculation and a new determination.</strong><br /> <br /> <br /> <br /><strong>The essential element of the equitable defense of laches is delay prejudicial to the opposing party. The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches.</strong><br /> <br /><strong> In Taberski v Taberski, --- N.Y.S.3d ----, 2021 WL 3782794, 2021 N.Y. Slip Op. 04804 (4th Dept.,2021) Plaintiff and defendant were divorced in February 2009 . The j]udgment incorporated but did not merge a stipulation of the parties that, inter alia, provided that plaintiff would receive her marital share of defendant’s retirement benefits under the New York State and Local Retirement System (NYSLRS) pursuant to the Majauskas formula. A Domestic Relations Order (DRO) was filed in December 2010. In December 2011, defendant received a letter from NYSLRS approving the submitted DRO. The letter stated that the DRO was “silent” regarding what would happen if defendant retired under a disability and that NYSLRS would calculate plaintiff’s distribution using the disability retirement allowance, which was apparently pursuant to its standard policy. Defendant retired in August 2016 and filed a disability retirement application at the same time. The parties began receiving their respective shares of defendant’s service retirement benefit soon thereafter, but it was not until February 2019 that NYSLRS approved defendant’s disability retirement application, retroactive to his retirement date. The resulting lump sum retroactive payment and increased monthly benefits were both apportioned between plaintiff and defendant. Before the retroactive payment was distributed, defendant’s attorney contacted plaintiff and put her on notice that defendant was disputing her entitlement to a portion of defendant’s disability retirement benefit. In August 2019, defendant moved to amend the DRO to specify that plaintiff was not entitled to any portion of his disability retirement benefit and to recoup the retroactive payment via a reduction in plaintiff’s monthly benefits. Supreme Court granted defendant’s motion to the extent that it sought to amend the DRO to specify that plaintiff was entitled only to the service retirement benefit payments, retroactive to the date the motion was filed. The court held, however, that under the doctrine of laches defendant was not entitled to recoup the retroactive payment made to plaintiff when the disability retirement application was approved in 2019.</strong><br /> <br /><strong> The Appellate Division held that the court abused its discretion in determining that the doctrine of laches applies to this case. Laches is defined as such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity ... The essential element of this equitable defense is delay prejudicial to the opposing party. The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches” (Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 816 [2003]). Here, the court found that defendant should have sought to amend the DRO in 2011, after receiving the letter from NYSLRS. But at that time, defendant was not eligible for and had not applied for a disability retirement. When his disability retirement application was approved in February 2019 and defendant became aware that plaintiff’s distribution would accordingly increase, he promptly moved to amend the DRO. Moreover, even if there was a delay here, plaintiff utterly failed to make a showing of prejudice. The court’s determination that plaintiff “relied to her detriment upon [d]efendant’s apparent acquiescence to [the] NYSLRS disability benefit determination” had no basis in the record. Plaintiff was aware that defendant was disputing her entitlement to the disability retirement allowance before she ever received the retroactive payment.</strong><br /> <br /> <br /><strong><u>Supreme Court</u></strong><br /> <br /> <br /><strong>Unacknowledged deferred mahr that granted the Wife $50,000 upon some unspecified occasion was unenforceable in plenary action under Matisoff v. Dobi and Galetta v. Galetta</strong><br /> <br /><strong> In Khan v Hasan, 2021 WL 4075247 (Sup. Ct., 2021) Supreme Court observed that a nikah agreement is a mutual agreement signed by spouses during their religious marriage ceremony that is typically verified by two male witnesses and includes a mahr provision. A mahr provision, or sadaq, is a term in the nikah agreement whereby the husband gives something of value to the wife. The mahr provision functions to protect the bride’s financial interests and independence and is typically only awarded in the case of divorce or upon the husband’s death. The mahr is usually paid in two parts, the first is paid immediately at the time of the religious ceremony and the second is deferred until one of the two previously stated occurrences. The Court held that an unacknowledged deferred mahr that granted the Wife $50,000 upon some unspecified occasion was unenforceable. It agreed with the Husbands argument that Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209 (1997) and Galetta v. Galetta, 21 N.Y.3d 186, 969 N.Y.S.2d 826 (2013)) are controlling precedent as they collectively establish that a proper acknowledgment is an “essential prerequisite” to comply with the terms of DRL 236(B)(3) and that the document is signed by two witnesses, instead of being acknowledged, does not satisfy the requirements of DRL 236(B)(3). The language, history, and subsequent New York statutory law of DRL 236(B)(3), including the case precedent of Matisoff and Galetta, have clearly created no exception to the acknowledgment requirement.</strong><br /> <br /> <br /><strong><u>September 1, 2021</u></strong><br /> <br /><strong><u>Appellate Division, First Department</u></strong><br /> <br /> <br /><strong>Under Domestic Relations Law § 236(B)(5)(a) “legal rights to specific marital property vest upon the judgment of divorce, with inchoate rights becoming actual ownership interests by virtue of an equitable distribution judgment</strong><br /> <br /><strong> In Tiozzo v Dangin, --- N.Y.S.3d ----, 2021 WL 3668438, 2021 N.Y. Slip Op. 04739 (1st Dept.,2021) in construing the provisions of the parties divorce agreement which was incorporated into their 2004 judgment of divorce the Appellate Division observed that in Pangea Capital Mgt., LLC v. Lakian, 34 N.Y.3d 38, 108 N.Y.S.3d 425 (2019) the Court of Appeals held that under Domestic Relations Law § 236(B)(5)(a) “legal rights to specific marital property vest upon the judgment of divorce, with inchoate rights becoming actual ownership interests by virtue of an equitable distribution judgment.” Plaintiff argued that her interest in the subject property vested upon the filing of the judgment of divorce. It held that this case differed from Pangea in that the parties provided for (an albeit limited) joint ownership of real property after the divorce. Divorcing couples may provide in a judgment of divorce for continued co-ownership of property. Here, the nature of the ongoing joint ownership was limited and was based solely on the parties’ agreement to avoid jeopardizing the existing mortgage on the property. With respect to Tiozzo, Dangin gave up any right to continue to use the property or to share in any proceeds of the sale. He also agreed not to take any action that could interfere with Tiozzo’s “exclusive use and occupancy of the said property, including the sale of the said property.” The stipulation of divorce thus divested Dangin of his rights in the subject property. Under CPLR article 52 a judgment creditor may only seek to enforce its money judgment against a judgment debtor’s property. “Property” under CPLR 5201(b), whether realty or personalty, is defined broadly as an interest that is present or future, vested or contingent. However, the determining factor as to whether a judgment debtor’s interest can constitute property vulnerable to a judgment creditor is whether it “could be assigned or transferred” (CPLR 5201[b]). In the stipulation of divorce Dangin gave up any right to assign or transfer to a third party an interest in the subject property. The subject property was therefore beyond the reach of Lenz. Under Pangea, Tiozzo’s interest in the subject property vested when the judgment of divorce was entered. Her decision to delay her demand for a quitclaim deed from Dangin was pursuant to a right provided to her under the stipulation of divorce.</strong><br /> <br /> <br /> <br /><strong><u>Appellate Division, Second Department</u></strong><br /> <br /> <br /><strong>Neither CPLR 4201 nor any other provision confers the authority on a referee assigned to hear and report to impose a penalty on a party for failing to appear, such as precluding that party from presenting any evidence</strong><strong>.</strong><br /> <br /><strong> In Pulver v Pulver, --- N.Y.S.3d ----, 2021 WL 3641419, 2021 N.Y. Slip Op. 04727 (2d Dept.,2021) in 2013, the plaintiff commenced an action for a divorce and the matter was referred to a Referee to hear and report on “the trial of all issues.” The Referee presided over a trial during which the plaintiff called the defendant to testify as an adverse witness. On August 22, 2017, the defendant failed to appear. On that date, the Referee granted the plaintiff’s application to preclude the defendant from presenting a case, except to the extent of permitting the defendant’s attorney to submit a written closing statement. The Referee determine that the defendant was able to appear in court but chose not to do so. The plaintiff proceeded to complete her case, and the Referee issued a report making findings of fact on issues pertaining, inter alia, to equitable distribution and maintenance based solely upon the plaintiff’s case. Supreme Court granted the plaintiff’s motion to confirm the Referee’s report and denied defendants cross-motion to reject the Referee’s report on the grounds, inter alia, that the Referee exceeded her authority by precluding him from presenting any evidence at trial. The Appellate Division reversed. It held that a referee derives his or her authority from an order of reference by the court, and the scope of the authority is defined by the order of reference. A referee who attempts to determine matters not referred to him or her by the order of reference acts beyond and in excess of his or her jurisdiction. Where, as here, the parties did not consent to the determination of any issues by the referee, and the order of reference directed the referee to hear and report (see CPLR 4317[a]), “the referee had the power only to hear and report his [or her] findings. The Referee exceeded her authority to hear and report her findings based upon the evidence presented at trial by making a determination to preclude the defendant from presenting a case. Neither CPLR 4201 nor any other provision confers the authority on a referee assigned to hear and report to impose a penalty on a party for failing to appear, such as precluding that party from presenting any evidence. CPLR 4320(a) provides that “[a] referee to report shall conduct the trial in the same manner as a court trying an issue without a jury,” which simply imposes the requirement on a referee assigned to hear and report to conduct a trial in the same manner as a court trying a nonjury trial. While the referee overseeing a trial, by necessity, has the discretion to grant or deny an application for an adjournment a referee assigned to hear and report lacks the authority to preclude a party from presenting evidence, which effectively prevents the court reviewing the referee’s report from considering potential evidence. CPLR 4320 did not give the Referee the authority to preclude the defendant from presenting a case at trial.</strong><br /> <br /> <br /><strong>Father’s constitutional rights not violated by his exclusion during the child’s testimony in chambers where attorney present</strong><br /> <br /><strong> In Matter of Ayden F., 194 A.D.3d 709, 148 N.Y.S.3d 481, 2021 N.Y. Slip Op. 02794 (2d Dept.,2021) a neglect proceeding, the Appellate Division held that Family Court providently exercised its discretion in permitting the child to testify in camera with the parties’ attorneys present. The right of a respondent parent to be present at every stage of a Family Court Act article 10 proceeding is not absolute. The Family Court must balance the due process rights of the respondent parent with the mental and emotional well-being of the child. Here, the court properly balanced the respective interests of the parties and reasonably concluded that the child would suffer emotional trauma if compelled to testify in front of the father or by utilizing electronic means . Moreover, because the father’s attorney was present during the child’s testimony and cross-examined him on the father’s behalf, the father’s constitutional rights were not violated by his exclusion during the child’s testimony in chambers (see Matter of Deshawn D.O. [Maria T.O.], 81 A.D.3d at 962, 917 N.Y.S.2d 874; Matter of Q.-L.H., 27 A.D.3d at 739, 815 N.Y.S.2d 601).</strong><br /> <br /> <br /><strong><u>Supreme Court</u></strong><br /> <br /> <br /><strong>Service of Order to Show Cause in Colorado on a Sunday is absolutely void. Under CPLR § 313, Plaintiff was required to serve the Defendant in accordance with New York State laws.</strong><br /> <br /><strong> In V.D., v. P.D., --- N.Y.S.3d ----, 2021 WL 3671518, 2021 N.Y. Slip Op. 21222 (Sup. Ct.,2021) |the Plaintiff moved for, among other things an Order pursuant to 28 USC § 1738, affording full faith and credit to the “Judgment of Divorce” and “Divorce Agreement,” filed in the Middlesex Probate and Family Court in the State of Massachusetts, and directing the Clerk of the Court to register it pursuant to Article 54 of the CPLR. The parties had resided in Sudbury, Massachusetts. In 2017, the Plaintiff commenced an action for divorce in the Middlesex Probate and Family Court of the State of Massachusetts. The parties were divorced pursuant to a Judgment of Divorce dated June 30, 2017 (the “Judgment”) which incorporated portions and merged portions of the parties agreement. The Judgment and the Agreement were authenticated by the Middlesex Probate and Family Court of the State of Massachusetts on April 1, 2021 and on April 8, 2021, the Plaintiff filed the authenticated Judgment and Agreement with the Nassau County Clerk’s Office. The Plaintiff argued that, pursuant to 28 USC § 1738, the “judgment of a state court shall have the same credit, validity, and effect, in every other court of the United States, which it has in the state where it was pronounced,” and that the Judgment is considered a “foreign judgment” under CPLR § 5401. According to the Plaintiff, pursuant to NY CPLR § 5402, if filed in New York within ninety (90) days of its authentication, the Judgment may be enforced by this Court in the same manner as though it were a domestic judgment. The Plaintiff argued that because she filed the authenticated Judgment with the Nassau County Clerk’s Office within this ninety (90) day period, it must be recognized and enforced by the Court.</strong><br /><strong> Supreme Court observed that FCA § 580-601 provides that “a support order ... issued in another state or a foreign support order may be registered in this state for enforcement.” Once registered, the procedure is provided for in FCA § 580-602. FCA § 580-603 (b) provides that “[a] registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” Here, the Agreement specifically excluded child support “in light of” the unallocated support provision and, as such, clearly fell under the definition of a “support order” in FCA § 580-102. Supreme Court held that the Judgment, which incorporated the Agreement, was entitled to be registered and enforced in this State in the same manner as a domestic judgment.</strong><br /> <br /><strong> The Court noted that General Business Law § 11, entitled “Serving civil process on Sunday”, provides that: All service or execution of legal process, of any kind whatever, on the first day of the week is prohibited, except in criminal proceedings or where service or execution is specially authorized by statute. Service or execution of any process upon said day except as herein permitted is absolutely void for any and every purpose whatsoever. The Defendant was a non-resident and was domiciled in Colorado. He was personally served with “the Order to Show Cause and accompanying papers” in Colorado on a Sunday. Under CPLR § 313, the Plaintiff was required to serve the Defendant in accordance with New York State laws. Thus, the service was defective and the order to show cause was dismissed for improper service.</strong></span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><span style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px; font-weight: 700;"><u>August 16, 2021</u><br /><br /> <strong><u>Appellate Division, Second Department</u></strong><br /> <br /> <strong>A determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion</strong><strong>.</strong><br /><br /><strong> In Weiss v Nelson, --- N.Y.S.3d ----, 2021 WL 3177791, 2021 N.Y. Slip Op. 04573 (2d Dept.,2021) the parties were married on June 14, 1987. There were three emancipated children of the marriage. The plaintiff commenced this action for a divorce on April 27, 2015. After a nonjury trial the court issued a judgment of divorce, which among other things, imputed an annual income to the plaintiff of $80,000, directed the defendant to pay taxable maintenance to the plaintiff of $1,500 per month until the plaintiff reaches the age of 62, directed the posttrial valuation of Feng Shui Institute, LLC, the plaintiff’s business, and awarded the defendant 50% of that value, awarded the defendant 50% of the value of the plaintiff’s LVMHF stock, and directed the defendant to pay 70% of the plaintiff’s counsel fees.</strong><br /> <br /><strong> The Appellate Division observed that while a court is afforded considerable discretion in determining whether to impute income to a party, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. Here, the Supreme Court improvidently exercised its discretion by imputing an annual income of $80,000 to the plaintiff when calculating her maintenance award. During this 28–year marriage, notwithstanding her college degree and various certifications, the plaintiff, who was 55 years old at the time of trial, had been a stay at home mother and homemaker for almost 10 years and had never earned more than $19 per hour from employment upon returning to work outside the home, while the defendant was the primary wage earner for the family and earned a substantial income. Moreover, the plaintiff’s business was not a financial success. Based upon the record, there was no evidence that the plaintiff’s past income or demonstrated future earning potential amounted to $80,000 annually. It held that under the facts of this case, the court should have imputed an annual income to the plaintiff in the amount of $35,000 .</strong><br /> <br /><strong> The Appellate Division held that Supreme Court improvidently exercised its discretion in awarding maintenance to the plaintiff of only $1,500 per month until she reaches 62 years of age. Considering the relevant factors, an award of taxable maintenance in the sum of $3,500 per month until the earliest of the plaintiff’s attainment of the age at which she becomes eligible for full Social Security retirement benefits, her remarriage, or the death of either party was appropriate. This was a long-term marriage of 28 years, where the plaintiff and the defendant were 55 and 56 years old, respectively, at the time of trial. The defendant was the primary wage earner throughout the marriage, earning well over $200,000 annually at the time of commencement of the action, while the plaintiff had not earned any significant income upon returning to the work force, having been a stay at home mother with the parties’ three children for almost 10 years. The defendant disagreed with the plaintiff’s excessive spending and testified to examples of it. The defendant claimed that the plaintiff did not significantly contribute to the parties’ finances which caused stress during the marriage. However, this was the lifestyle of the parties during their marriage; economic decisions made during their marriage should not be second guessed by the Supreme Court.</strong><br /> <br /><strong> The Supreme Court also erred in directing the posttrial valuation of the plaintiff’s business and awarding the defendant 50% of that value. The defendant, as the party seeking an interest in the business, failed to submit evidence as to the value of the business. Therefore, the court should not have directed a posttrial valuation, and should not have awarded the defendant any portion of the value of the plaintiff’s business.</strong><br /> <br /> <br /> <br /><strong>No valid marriage where defendant and his witness were credible, and only written evidence of marriage was ketubah which defendant denied he signed, and testified that signature in Hebrew could not be his because he did not write in Hebrew</strong><strong>.</strong><br /> <br /><strong> In Yusupov v Baraev, --- N.Y.S.3d ----, 2021 WL 3378803 (2d Dept., 2021) the plaintiff commenced this action for a divorce and alleged that the parties had married on November 24, 1998, at a Jewish ceremony performed by a rabbi. The defendant moved to dismiss the complaint, arguing that the parties were never married. The Supreme Court held a hearing. At the hearing, the plaintiff testified and presented testimony from the rabbi who performed the ceremony, her mother, and her cousin. Their testimony indicated that the parties were married at a ceremony on November 24, 1998, at the apartment of the plaintiff’s mother, and that the defendant signed, in Hebrew, a religious marriage contract, referred to as a ketubah. There were no photographs of the wedding, and the plaintiff never indicated on her tax returns that she was married. The defendant and his mother each testified that there was no wedding ceremony. The defendant testified that he never signed the ketubah, and that his purported signature on the ketubah was not made by him because he only wrote in Russian or English. No marriage certificate was issued by any governmental agency, and there was no other document referring to a marriage. Supreme Court granted the defendant’s motion to dismiss the complaint on the ground that there was no valid marriage between the parties. The Appellate Division affirmed. It held that a marriage is solemnized where the parties “solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife” (Domestic Relations Law § 12). Under New York law, the marriage between parties will be valid, even without a marriage license, in instances where it is solemnized. Pursuant to Domestic Relations Law § 12, “[n]o particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman or magistrate, but the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife”. In every case, at least one witness beside the clergyman or magistrate must be present at the ceremony. The Supreme Court determined that the defendant and his witness were credible, and the only written evidence of a marriage was the ketubah in the plaintiff’s possession, which the defendant denied he ever signed, and further testified that the signature in Hebrew could not be his because he did not write in Hebrew. Based upon the evidence the determination was proper.</strong><br /> <br /> <br /><strong><u>Family Court</u></strong><br /> <br /><strong>Documents and body camera footage from related sealed criminal cases are not admissible in Family Court Article 10 proceedings</strong><br /> <br /> <strong>In Matter of Joshua F., Kanan O., --- N.Y.S.3d ----, 2021 WL 3359827, 2021 N.Y. Slip Op. 21205 (Fam Ct.,2021) although the written police reports related to the arrest were now sealed and cannot be used at this fact-finding neglect hearing, ACS sought to admit the domestic incident reports (”DIRs”) and body camera footage from this incident, contending that these items were not sealed. The Court, among other Family Courts, had previously held that documents from related sealed criminal cases are not admissible in Family Court Article 10 proceedings pursuant to CPL § 160.50(1). See In re T.P., 51 Misc 3d 738 [Fam Ct 2016] (arrest documents & DIR were sealed & inadmissible though officer’s memo book was not document intended to be sealed under sealing statute; striking testimony was warranted based on officer’s simultaneous review of both memo book and much more detailed documents); In re Carolina K., 55 Misc 3d 352 [Fam Ct 2016] (911 recording sealed); In re Samantha R., 55 Misc 3d 338 [Fam Ct 2016] (holding that documents, DIR and photographs that officer reviewed were legally sealed, photographs were inadmissible, but striking of officer’s testimony was not required because officer had credible independent recollection); Matter of T/R, Fam. Ct. Kings County, May 19, 2016, Barnett, J. Docket nos. NN-22206-9/15(DIRs, photographs, criminal complaint, arrest report, memo book, and Criminal Court temporary order of protection are sealed); Matter of B/L Children, Fam. Ct., Kings County, Feb. 22, 2011, Gruebel, J., Docket nos. NN-30879-80/10(DIRs are sealed); In re J G 2009 WL 7292304 [Fam Ct, Bronx County 2009] (DIR sealed). In Matter of Carolina K., supra and Matter of Diyorhjon K., 65 Misc 3d 788 [Fam Ct 2019], this Court applied the same rationale to 911 recordings sought to be introduced by ACS in those cases and In Matter of Samantha R. and In re T.P., supra, to excluding domestic incident reports when they result in an arrest that is later sealed.</strong><br /> <br /><strong> The Court noted that CPL § 160.50(1)(c) states in pertinent part, “all official records or papers relating to the arrest or prosecution including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency.” CPL § 160.60 states that an arrest terminated in favor of an accused “shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.” Thus, when a criminal case is dismissed and sealed, ALL documents or other official records relating to that arrest must be sealed as well or the protection applied to these individuals by the sealing statute is rendered meaningless, especially in the age of internet searches where even one unsealed document can be enough to negatively impact the future of the arrested individual. The language of CPL § 160.50(1)(c) is mandatory and unequivocal in precluding the provision of “all official records” to any public agency, the only exceptions being contained in paragraph (d), none of which applied here. Domestic incident reports (”DIRs”), which are required to be completed whenever the police respond to a domestic dispute are clearly “official records relating to the arrest or prosecution on file with the division of criminal justice services, any court, police agency, or prosecutor’s office.” CPL 160.50(1)(c). Family Court held that as to the body camera footage, the plain language of the Criminal Procedure Law mandates that the footage cannot be used when the underlying criminal case is sealed.</strong></span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><span style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;"> </span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><span style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px; font-weight: 700;"><u>August 1, 2021</u></span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><span style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;"> </span><span style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px; font-weight: 700;"><strong><u>Appellate Division, Second Department</u></strong><br /> <br /> <a style="color: #5199a8; transition: all 0.2s ease-in-out 0s;"><strong><span style="color: #2a2a2a; font-size: small;">Respondent responsible for support of non-biological children not seen since 2011 where parties planned jointly for children’s conception, participated jointly in process of conceiving the children, planned jointly for their birth, and planned to raise them together</span></strong></a></span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><strong style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px;"> In Matter of Scott v Adrat, --- N.Y.S.3d ----, 2021 WL 2944297, 2021 N.Y. Slip Op. 04361 Ileana Adrat and Jasmin Scott entered into a same-sex relationship in November 2008. The parties agreed to conceive and raise children together in December 2008 or January 2009. They began attempting to conceive through artificial insemination. In April 2010, Scott learned that she was pregnant with twins, and the children were born later that year. In April 2011, the parties terminated whatever relationship they had at the time. Adrat last saw the children at a court appearance in May or June 2011 and had not supported the children since that time. Family Court found that Adrat was the non-biological parent of the children, and, responsible for financially support them. The Support Magistrate, inter alia, in effect, directed Adrat to pay child support of $1,727 per month. The Appellate Division affirmed. It found that the credible evidence adduced at the hearing established that the parties planned jointly for the children’s conception, participated jointly in the process of conceiving the children, planned jointly for their birth, and planned to raise them together. The credible evidence demonstrated that both parties attended appointments with two fertility specialists, Adrat injected the sperm into Scott at one such appointment, Adrat paid for half of the out-of-pocket fertility treatment expenses, Adrat selected the location of the baby shower and distributed the invitations, Adrat paid for most of the baby shower, friends and family members of both parties attended the baby shower, Adrat attended prenatal appointments, Adrat was present for the birth of the children and cut the umbilical cord of at least one of them, Adrat assisted in selecting the name of one of the children, and Adrat purchased items for the children and shared in caring for them. Adrat also held herself out as the children’s mother during Scott’s pregnancy, called Scott her “baby mama,” and told friends and family that she was expecting babies with Scott. On the day of the children’s birth, Adrat signed Scott’s hospital admission documents voluntarily and without hesitation. After their birth, Adrat referred to the children as “my girls.” Accordingly, the Family Court properly found that Adrat was a parent of the children (see Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14). Contrary to Adrat’s contention, it was not error for the Family Court to consider post-conception behavior in determining the existence of a preconception agreement. Also contrary to Adrat’s contention, the fact that the parties broke up in late 2009 did not require a finding that Adrat did not agree to conceive and raise the children together. The parties’ break-up was brief, and after the parties reconciled, Adrat actively took part in the in vitro fertilization process at a new fertility clinic.</strong><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><span style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px; font-weight: 700;"> </span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><a style="background-color: white; color: #5199a8; font-family: Arial; font-size: 16px; font-weight: 700; transition: all 0.2s ease-in-out 0s;"><strong><span style="color: #2a2a2a; font-size: small;">Agreement regarding testamentary provisions, will be valid and enforceable only if it is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded</span></strong></a><span style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px; font-weight: 700;"> </span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><strong style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px;"><span style="color: #2a2a2a;"> In Prestigiacomo v Prestigiacomo, 2021 WL 2944415 (2d Dept.,2021) in 1997, Joseph Prestigiacomo, Sr. and Katie Prestigiacomo, who had married in 1987, and who both had children from prior marriages, entered into a postnuptial agreement to delineate the inheritance rights of their respective children. The 1997 agreement provided that any modification of the agreement must be “in writing, witnessed and acknowledged and executed simultaneously by both parties.” The Appellate Division held that an agreement between the parties to a marriage, including an agreement regarding testamentary provisions, will be valid and enforceable only if it is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded (see Domestic Relations Law § 236[B][3]; Galetta v. Galetta, 21 N.Y.3d 186, 191, 969 N.Y.S.2d 826, 991 N.E.2d 684; Matter of Koegel, 160 A.D.3d 11, 21, 70 N.Y.S.3d 540). It also held that the agreement was effectively revoked.</span></strong><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><span style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px; font-weight: 700;"><u>July 14, 2021</u></span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><strong style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px;"><span style="color: #2a2a2a;"><u>Appellate Division, Second Department</u><br /><br />Mother had no obligation to provide the father with notice of her expert witness where no CPLR 3101(d)(1)(I) demand served.<br /><br /> In Matter of Pena v Chadee, --- N.Y.S.3d ----, 2021 WL 2672745 (Mem), 2021 N.Y. Slip Op. 04140 (2d Dept.,2021) the mother was ordered to pay child support to the father. The father commenced a proceeding against the mother alleging a violation of the child support order and the mother commenced a proceeding against the father seeking a downward modification of her child support obligation. The Appellate Division held, inter alia, that the Family Court did not err in permitting the mother’s expert witness to testify at the hearing in the absence of notice to the father. CPLR 3101(d)(1)(I) provides, in pertinent part, “[u]pon request, each party shall identify each person whom the party expects to call as an expert witness at trial”. Here, the father’s demand for discovery that was in effect at the time failed to request any information concerning expert witnesses and, accordingly, the mother had no obligation to provide the father with notice of her expert witness.<br /> <br />Renewal judgment must be sought by commencing separate action, rather than by motion in the original action<br /><br />In Handakas v Handakas, --- N.Y.S.3d ----, 2021 WL 2816695 (Mem), 2021 N.Y. Slip Op. 04217(2d Dept.,2021) Supreme Court, inter alia, determined that the parties’ marital assets included the marital home valued at $1,105,695.70, $950,000 in marital funds that the plaintiff attempted to secret from the defendant by wire transfers to Greece, $100,082 seized from the plaintiff when he was arrested at the airport while attempting to leave the country, $350,000 that the plaintiff forfeited to the federal government in connection with his criminal conviction, and$60,000 from the sale of a boat. The court determined that the defendant was entitled to 50% of these marital assets, less $310,000 for sums she had already received, for a total distributive award of $972,888.80. After the trial but before an amended judgment of divorce was entered, the Supreme Court, inter alia, granted the defendant’s motion, made by order to show cause dated December 12, 2017, for a renewal judgment in favor of the defendant and against the plaintiff in the principal sum of $359,491.84 for pendente lite arrears. An amended judgment of divorce was entered on April 10, 2018. On the same date, the Supreme Court also entered four money judgments in favor of the defendant and against the plaintiff representing, inter alia, the distributive award to the defendant, in the principal sums of $34,000, $10,000, $497,888.80, and $475,000, respectively. The Appellate Division affirmed the awards. However, it held that the Supreme Court erred in granting the defendant’s motion for a renewal judgment. The defendant was required to seek such relief by commencing a separate action, rather than by motion in the original action, and her failure to do so required denial of her motion for the renewal judgment (see CPLR 5014; Guerra v. Crescent St. Corp., 120 A.D.3d 754, 991 N.Y.S.2d 343).<br /> <br /><br />Matter of Bennett v. Jeffreys applies where parent opposes petition of nonparent seeking guardianship.<br /><br /> In Matter of Madelyn E.P. v Kevin O, 2021 WL 2816167 (2d Dept.,2021) the Appellate Division pointed out that as between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances” (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543). It applies this standard where, as here, a parent opposes the petition of a nonparent seeking guardianship.<br /><br /><u>Appellate Division, Third Department</u><br /><br />CPLR 211(e) inapplicable to postjudgment motion to enforce the terms of the separation agreement brought under index number of the original divorce action <br /><br />In Sangi v Sangi, --- N.Y.S.3d ----, 2021 WL 2828544, 2021 N.Y. Slip Op. 04270 (3d Dept.,2021) the parties 1992 separation agreement which was incorporated but not merged into a 1995 judgment of divorce. In December 1995, the court converted the obligation into a lump-sum payment, imposing a fine in the amount of $130,694.77. In 2005, the wife filed a motion seeking to reaffirm and recalculate the 1995 order based upon the husband’s additional defaults. In August 2005, Supreme Court granted the application and ordered the husband to pay the sum of $129,893.43 directly to the wife. In July 2018, the wife moved for an order directing the County Clerk to enter a money judgment in the amount of $129,893.43, plus statutory interest from the date of the 2005 order. The husband opposed the motion claiming that the wife’s motion was time-barred. Supreme Court granted the wife’s motion for a money judgment, based on the obligations under the separation agreement. The Appellate Division affirmed. It rejected the argument that the wife’s motion was an attempt to enforce his obligations under the separation agreement and, therefore, not subject to the six-year statute of limitations applicable to contract actions (see CPLR 213[2]) or to the 20–year statute of limitations applicable to actions brought to enforce an order of support (see CPLR 211[e]). A motion to enforce the terms of [a] separation agreement is not an action and thus not subject to the statute of limitations set forth in CPLR 213(2). Meanwhile, CPLR 211(e) provides that “[a]n action or proceeding to enforce any temporary order, permanent order or judgment of any court of competent jurisdiction which awards support, alimony or maintenance, regardless of whether or not arrears have been reduced to a money judgment, must be commenced within [20] years from the date of a default in payment.” Thus, as Supreme Court correctly determined, CPLR 211 governs the timeliness of actions upon a contractual obligation. Inasmuch as the present application was not an action, but rather a postjudgment motion to enforce the terms of the separation agreement brought under the index number of the original divorce action, CPLR 211(e) was inapplicable to, and did not bar the motion.<br /> <br /><u>Appellate Division, Fourth Department</u><br /><br />Where mother’s decision to relocate without permission was prompted by the father’s violent conduct relocation permitted nunc pro tunc.<br /><br />In Ferris v Ferris, --- N.Y.S.3d ----, 2021 WL 2883199, 2021 N.Y. Slip Op. 04306 (4th Dept., 2021) the Appellate Division affirmed an order which allowed the mother to relocate with the child nunc pro tunc. A prior order of custody and visitation awarded the mother sole custody of the child with visitation to the father. That order included a provision prohibiting either parent from permanently removing the child from Monroe County without the written consent of the other parent or a court order. Despite that provision, the mother unilaterally relocated to Arizona with the five-year-old child. Approximately one year later, the father discovered the mother’s whereabouts and commenced this proceeding by way of petition seeking custody of the child. The mother filed a cross petition seeking permission to relocate nunc pro tunc. Therein, she asserted that she relocated due to a “continuous and relentless cycle of domestic violence” perpetrated by the father. The Appellate Division found a sound and substantial basis in the record for the determination. In observed that Courts place considerable weight on the effect of domestic violence on the child, particularly when a continuing pattern of domestic violence perpetrated by the child’s father compels the mother to relocate out of legitimate fear for her own safety, or where the father minimized the past incidents of domestic violence., Where domestic violence is alleged in a petition for custody, “the court must consider the effect of such domestic violence upon the best interests of the child”. Here, in making its determination, the court appropriately considered the fact that the mother unilaterally removed the child from the jurisdiction, determining that the mother “did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence.” Although the court did not countenance the mother’s decision to relocate without permission, “it was the father’s [violent] conduct that prompted [her] move to [Arizona] in the first instance and triggered the resulting disruption of his relationship with his daughter.”<br /><br />Reduction for extended visitation permitted by FCA § 413 (1) (f) (9) applies only where the child is not on public assistance.<br /><br />In Matter of Livingston County Department of Social Services on Behalf of Davis v Hyde, --- N.Y.S.3d ----, 2021 WL 2885671 (Mem), 2021 N.Y. Slip Op. 04316(4th Dept., 2021) the Appellate Division reversed the order, granted petitioner’s objections, granted the petition, and direct the father to pay child support in the amount of $74 per week retroactive to August 5, 2019. Petitioner commenced a proceeding on behalf of the mother of the child seeking an upward modification of respondent father’s child support obligation. The father and the mother shared legal and physical custody of the child, and the mother received public assistance to help support the child. A prior order directed him to pay $50 per month in child support. The Support Magistrate determined that the father’s support obligation based on his income was $74 per week, and further determined that the amount was unjust, and granted a variance by setting the father’s support obligation at $50 per week. The Appellate Division held that “the CSSA must be applied to all child support orders, regardless of a child’s receipt of public assistance” .The Support Magistrate purported to reduce the father’s obligation pursuant to Family Court Act § 413 (1) (f) (10) because the father made additional expenditures to maintain his house to permit the child to stay there during the time that he stayed with the father. Such a reduction for extended visitation is permitted by section 413 (1) (f) (9), however, and that subdivision of the statute applies only where “the child is not on public assistance”. A determination to grant a downward deviation from the presumptive support obligation on the ground that the noncustodial parent incurred expenses while the child was in his or her care “is merely another way of improperly applying the proportional offset method,’ and the proportional offset method of calculating child support has been explicitly rejected by the Court of Appeals (see Bast v. Rossoff, 91 N.Y.2d 723, 732, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998]).</span></strong><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><span style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px; font-weight: 700;"><u>June 30, 2021</u></span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><span style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;"> </span><span style="background-color: white; color: #2a2a2a; font-family: Arial; font-size: 16px; font-weight: 700;"> <br /> <strong><u>Appellate Division, First Department</u></strong><br /> <br /> <strong>In determining length of the order of protection to impose, court not required to consider the length of time temporary order of protection had been in effect</strong><br /><br /><strong> In Matter of Sophia M v James M, --- N.Y.S.3d ----, 2021 WL 2545204 (1st Dept.,2021) the Appellate Division held that in determining the length of the order of protection to impose, the court was not required to consider the fact that a temporary order of protection had been in effect for about two years (see Family Court Act § 842; Matter of Sheila N. v. Rudy N., 184 AD3d 514, 514–515 [1st Dept 2020] ).</strong><br /> <br /><strong> The Appellate Division also held that the provision of the order of protection prohibiting him from discussing petitioner or the case with anyone familiar with petitioner did not violate his First Amendment right to freedom of speech. Respondent’s repeatedly sending petitioner emails articulating his unwanted opinions about her, her mother and their family dynamic or making petitioner aware of the emails he sent to several third parties broadcasting those opinions by blind-copying her on those messages was not protected by the First Amendment, because those repeated and unwanted communications served no legitimate purpose.</strong><br /> <br /> <br /><strong>Family Court was required to confirm foreign child support order, and dismiss petition to vacate registration where he failed to establish lack of personal jurisdiction over him by Swiss Court, a defense under Family Court Act § 580–607(a).</strong><br /> <br /><strong> In Alava v Caceres, --- N.Y.S.3d ----, 2021 WL 2459350 (Mem), 2021 N.Y. Slip Op. 03903 (1st Dept., 2021) the Appellate Division affirmed an order which dismissed the petition to vacate registration of a foreign child support order. It held that the father failed to meet his burden in proving that the Swiss court, a signatory to UIFSA, failed to establish personal jurisdiction over him, a defense under Family Court Act § 580–607(a). He admitted that he was advised by the Swiss court of the support proceedings pending against him and asked to provide a Swiss contact for further notifications in lieu of service via publication, which he failed to do, even though he was engaged in custody litigation in Switzerland at the time and was represented by counsel in those proceedings. It found hat the Swiss methods of service are consistent with our notions of procedure and due process in that he was given meaningful notice” of the foreign proceeding against him. Since the Swiss court properly exercised personal jurisdiction over the father, Family Court was required to confirm the foreign child support order, and the petition to vacate was properly dismissed.</strong><br /> <br /> <br /><strong><u>Appellate Division, Second Department</u></strong><br /> <br /> <br /><strong>Court may determine which parent is custodial parent based on reality of the situation. Reality of the situation, despite permitted parental access set forth in stipulation, was that plaintiff was custodial parent for child support purposes.</strong><br /><strong> <br /> In Sexton v Sexton, --- N.Y.S.3d ----, 2021 WL 2558103 (Mem), 2021 N.Y. Slip Op. 04049 (2d Dept.,2021) the plaintiff commenced the action for a divorce on May 14, 2013. On October 18, 2016, the parties entered into a so-ordered stipulation that awarded the defendant legal custody of all three children and the plaintiff residential custody of all three children. The oldest child was to have parental access with the defendant at a minimum of alternating weekends. The other two children were to have parental access with the defendant on Fridays after school “until after Scouts,” every other weekend from Friday after school until Monday morning, and every Monday after school until Wednesday morning. The stipulation contained a clause that read as follows: “Given the ages of the children, even in light of the above schedule, should the children desire to not exercise the full parenting time, the children’s wishes should and must be respected.” At trial, the plaintiff testified that only the middle child was following the parental access schedule, while the other two children were not seeing the defendant at all. The plaintiff conceded that the defendant paid for certain expenses for the children. Supreme Court determined that the plaintiff was entitled to child support from the defendant because the plaintiff had residential custody of the children. The court utilized the Child Support Standards Act ( CSSA) calculation to determine that the defendant was responsible for 37.5% of the basic child support obligation, or the sum of $243 per week. However, the court concluded that there was a basis to deviate downward because the defendant readily incurred additional expenses for the children and directed the defendant to pay the sum of $175 per week in basic child support. The Appellate Division held that the Supreme Court correctly determined that the plaintiff was the custodial parent for child support purposes. The ‘custodial parent’ within the meaning of the [CSSA] is the parent who has physical custody of the child for the majority of the time (Matter of Conway v. Gartmond, 144 A.D.3d 795, 796, 41 N.Y.S.3d 90). The court may determine which parent is the custodial parent based on the reality of the situation (Riemersma v. Riemersma, 84 A.D.3d 1474, 1476, 922 N.Y.S.2d 616. Because the stipulation gave great weight to the children’s wishes, and because there was undisputed testimony that two of the three children were not following the parental access schedule, the reality of the situation, despite the permitted parental access as set forth in the stipulation, was that the plaintiff was the custodial parent for child support purposes.</strong><br /> <br /> <br /><strong>Even though spouse changed character of the property from separate to marital by placing title to marital residence in both names, separate property credit not precluded when separate property transmuted into marital property.</strong><br /> <br /> <br /><strong> In Philogene v Philogene, --- N.Y.S.3d ----, 2021 WL 2558027 (Mem), 2021 N.Y. Slip Op. 04045 (2d Dept.,2021) the plaintiff and the defendant were married on August 5, 2005. There were no children of the marriage. The defendant purchased the marital residence in 1993, and transferred the property into both parties’ names in 2006. On or about November 12, 2013, the plaintiff commenced the action for a divorce. Supreme Court, inter alia, awarded the plaintiff half of the stipulated appreciation in the value of the marital residence, in effect, determining that the defendant was entitled to a separate property credit for her contribution of separate property towards the creation of the marital residence as marital property. The Appellate Division affirmed. It held that Supreme Court providently exercised its discretion in awarding the defendant a credit, equal to the stipulated valuation of the marital residence as of March 2006, for her contribution of separate property towards the creation of marital property Even though the defendant changed the character of the property from separate property to marital property by placing the marital residence in both parties’ names, a separate property credit is not precluded as a matter of law when separate property has been transmuted into marital property.</strong><br /> <br /> <br /><strong>Property acquired during marriage is presumed to be marital and party seeking to overcome presumption has burden of proving property in dispute is separate. Self-serving testimony, without more, is insufficient</strong><strong>.</strong><br /> <br /><strong> In Parkoff v Parkoff, --- N.Y.S.3d ----, 2021 WL 2558022, 2021 N.Y. Slip Op. 04025 (2d Dept.,2021) the parties were married on August 29, 1965, and had one emancipated child. At the time the trial commenced in 2015, both parties were 71 years old. In 1989, the defendant told the plaintiff that she wanted a divorce, and the plaintiff proceeded to unilaterally divide the parties’ bank accounts. However, no divorce action was commenced, and the parties continued to reside together. From that time forward, the plaintiff gave the defendant $1,400 per month to pay for food expenses, dry cleaning, and household expenses. The defendant used funds from her individual accounts for additional household expenses, including her clothing and psychotherapy, for which the plaintiff did not pay, and some of the expenses for the parties’ daughter. On October 23, 2012, after more than 47 years of marriage, the plaintiff commenced the action for a divorce. After the trial, Supreme Court, inter alia, equitably distributed the parties’ marital property equally, determined that the plaintiff’s shares of Verizon and Exxon Mobil stock were not his separate property, valued the parties’ investment accounts as of the commencement date of the action, and failed to award the defendant statutory interest on the funds held in the plaintiff’s investment accounts.</strong><br /> <br /><strong> The Appellate Division affirmed. It held that there was no basis for an unequal distribution of marital assets. Supreme Court properly considered the relevant factors and took into consideration its findings that the defendant was credible, while the plaintiff’s testimony lacked credibility (see Greenberg v. Greenberg, 162 A.D.3d at 873, 81 N.Y.S.3d 58). While the plaintiff contended that the parties’ economic partnership terminated in 2001, mandating an unequal division of the marital assets, there was no merit to this contention. From 2001 until the commencement of the action, the parties continued to reside together, the plaintiff continued to provide the defendant with $1,400 monthly to pay for certain household expenses, the plaintiff continued to prepare and file the parties’ joint tax returns, the defendant prepared dinners for the plaintiff and took care of the household, and the plaintiff accompanied the defendant to two work-related award ceremonies, celebrated holidays with the defendant’s family, and attended some concerts with the defendant. Moreover, the defendant was the primary caretaker for the parties’ daughter and worked for all but approximately four years during this 47–year marriage, during which the parties amassed a substantial marital estate. While the parties maintained separate finances, under these circumstances, the economic decisions made by the parties should not be second-guessed by the court (see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369, 909 N.E.2d 62; Achuthan v. Achuthan, 179 A.D.3d at 757, 117 N.Y.S.3d 667).</strong><br /> <br /><strong> The Appellate Division held that Supreme Court providently exercised its discretion in determining that the plaintiff’s shares of Verizon and Exxon Mobil stock that were acquired during the marriage were marital property. Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property. The plaintiff’s self-serving testimony, without more, was insufficient.</strong><br /> <br /> <br /><strong>A finding of parental interference or alienation does not justify applying a per se rule requiring a change of custody, or even a rebuttable presumption that custody should be changed. It constitutes one fact, albeit an important one, in determining the best interests of the child.</strong><br /> <br /><strong> In Matter of Brown v Simon, --- N.Y.S.3d ----, 2021 WL 2447400, 2021 N.Y. Slip Op. 03831(2d Dept.,2021) the Appellate Division observed that a child’s preference for a particular parent, while a factor to be considered, cannot be determinative. In weighing a child’s expressed custody preference, “the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. This is particularly true where there is evidence that the child’s feelings were fostered by the custodial parent’s hostility towards the noncustodial parent. The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children.</strong><br /> <br /><strong> The record demonstrated that the child’s view of her mother was the result of her father’s negative influence. The child’s relationship with her mother plainly deteriorated during the periods when she was in the father’s custody, and the child has become strongly invested in pleasing solely her father. As the Family Court determined, the record was replete with examples of alienating behavior engaged in by the father. The record indicated that the father discussed these court proceedings with the child, and there was evidence that the child was actually instructed by her father to make false allegations against her older sister. The weight of the evidence established that the father’s numerous unfounded allegations of sexual assault undermined the mother’s attempts to form and maintain a relationship with the child. Given the father’s overt and public hostility towards the mother, it would be surprising indeed if the child was eager after her enforced separation to return to her mother. Under the circumstances, the expressed wishes of the child were, without more, insufficient to warrant the heavy restrictions imposed on the mother’s parental access award. The Family Court’s decision to formally restrict the mother’s legal right of access to supervised parental access with the child lacked a sound and substantial basis in the record. The record demonstrates that it is in the child’s best interest to have liberal, unsupervised parental access with the mother.</strong><br /> <br /><strong> The Appellate Division rejected the mother’s argument that Family Court should have awarded her physical custody of the child. It held that a finding of parental interference or alienation does not justify applying a per se rule requiring a change of custody, or even a rebuttable presumption that custody should be changed. Rather, such a finding constitutes one fact, albeit an important one, in determining the best interests of the child. The record supported the mother’s contention that the father had been unable to place the needs of the child before his own need to express anger and hostility toward the mother, and that he was unable to foster a continuing relationship between the mother and the child. However, it agreed with the Family Court that physical custody of the child should nevertheless remain with the father. The record, including the expert evidence, established that it would be traumatic for the child to have the stability of her home life disrupted after so many years by transferring custody to the mother while the child still deeply mistrusts her. The award of joint legal custody to the parties was appropriate under the circumstances of this case</strong><br /> <br /> <br /><strong>A person has right to assistance of counsel in any matter before Supreme Court, under circumstances where, if proceeding was pending in Family Court, the court would be required by FCA §262, to appoint counsel. The standard for effective assistance of counsel is whether, viewed in its totality, there was meaningful representation.</strong><br /> <br /><strong> In Winter v Winter, --- N.Y.S.3d ----, 2021 WL 2447437, 2021 N.Y. Slip Op. 03865 (2d Dept.,2021) the Appellate Division reversed an order which held the plaintiff in contempt for wilful violation of a 2013 support order. It held that the plaintiff was denied effective assistance of counsel. Under Judiciary Law § 35(8), a person has the right to the assistance of counsel in any matter before the Supreme Court, under circumstances whereby, if the proceeding was pending in the Family Court, the court would be required, by section 262 of the Family Court Act, to appoint counsel, such as the matter here in which the defendant sought to hold the plaintiff in contempt for wilful violation of the 2013 order and sought his incarceration (see Judiciary Law § 35[8]; Family Ct Act § 262). The standard for effective assistance of counsel in such cases is whether, viewed in its totality, there was meaningful representation. Here, the plaintiff’s attorney failed to present any medical evidence, whether in the form of admissible medical records or testimony of medical witnesses, to support the plaintiff’s defense that his failure to pay child support in accordance with the 2013 order was not wilful, but rather due to his medical condition which rendered him unable to work. The failure of the plaintiff’s attorney to obtain the relevant medical information that may have supported the plaintiff’s defense constituted a failure to meaningfully represent the plaintiff, and the plaintiff was therefore entitled to a new hearing.</strong><br /> <br /> <br /> <br /><strong>In determining a motion to dismiss in a family offense proceeding for failure to establish a prima facie case the evidence must be accepted as true and credibility is irrelevant.</strong><br /><br /><strong> In Matter of Prince v Ford, --- N.Y.S.3d ----, 2021 WL 2345917 (Mem), 2021 N.Y. Slip Op. 03591(2d Dept.,2021) the petitioner filed an amended family offense petition against the respondent, her adult son, alleging, inter alia, that on certain dates between 2015 and 2019, the respondent had struck and slapped her, causing her pain and injury, cursed at her, taken her belongings, and collected her mail and her tenants’ rent without her permission. The Family Court held a hearing, and at the close of the petitioner’s case, granted the respondent’s motion to dismiss for failure to establish a prima facie case. The Appellate Division reversed. It held that in a family offense proceeding, the petitioner has the burden of establishing that the charged conduct was committed as alleged in the petition by a fair preponderance of the evidence (Family Ct Act § 832). 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. Family Court failed to properly apply this standard. Viewing the petitioner’s evidence in the light most favorable to her, and accepting the evidence as true, it established a prima facie case. It held that respondent’s motion to dismiss the amended petition for failure to establish a prima facie case should have been denied.</strong><br /> <br /> <br /> <br /><strong>Father neglected child where he falsely reported on multiple occasions that mother was sexually abusing child, allegations were made in presence of child, and he encouraged child to corroborate false allegations</strong><strong>.</strong><br /> <br /><strong> In Matter of Isabela P v Jacob P, --- N.Y.S.3d ----, 2021 WL 2345995, 2021 N.Y. Slip Op. 03590 (2d Dept.,2021) the Appellate Division affirmed the Family Court’s determination, made after an evidentiary hearing, that the father neglected the child. The evidence supported the court’s determination that the father falsely reported on multiple occasions in 2015 and 2017 that the mother was sexually abusing the child, that these allegations were made in the presence of the child, and that the father encouraged the child to corroborate these false allegations. The false reports resulted in the child being interviewed by detectives, social workers, and attorneys, and exposed her to the possibility of intrusive physical examinations. The evidence further supported the court’s determination that the father knew the allegations to be false when he made them, and that he intended to continue making false reports of sexual abuse against the mother. Overall, the father’s repeated allegations, which he made in an effort to damage the mother’s relationship with the child, presented an imminent danger of emotional impairment to the child and did not meet the minimum degree of care required of a reasonable and prudent parent.</strong><br /> <br /> <br /><strong>Court not required to release child to father after permanency hearing where no showing that he was unfit or other extraordinary circumstances. Determinations following permanency hearing must made in accordance with best interests and safety of child.</strong><br /> <br /><strong> In Matter of Savrina M.A. v Yana A, --- N.Y.S.3d ----, 2021 WL 2345963 (Mem), 2021 N.Y. Slip Op. 03583 (2d Dept.,2021) an abuse and neglect proceeding, the Appellate Division affirmed a permanency hearing order which, inter alia, continued the child’s placement until the completion of the next permanency hearing or pending further order of the Family Court and approved the continued permanency goal of reunification with parent(s). It rejected the father’s argument that there was no showing that he was unfit or other extraordinary circumstances and the court should have immediately released the child to his care. The Appellate Division observed that at the conclusion of each permanency hearing, Family Court enters an order of disposition, schedules a subsequent hearing, and may also consider whether the permanency goal should be approved or modified (Matter of Jamie J. [Michelle E.C.], 30 N.Y.3d 275, 283). The court may direct that the placement of the child be terminated and the child returned to the parent, place the child in the custody of a fit and willing relative or other suitable person, or continue the placement of the child until the completion of the next permanency hearing. (Family Ct Act § 1089[d]). The court’s determinations following a permanency hearing must made in accordance with the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent. The court must begin by weighing past and continued foster care against discharge to the biological parent (Matter of Michael B., 80 N.Y.2d 299). The fitness of the biological parent must be a primary factor. The court must also consider the agency’s plan for the child, what services have been offered to strengthen and reunite the family, what reasonable efforts have been made to make it possible for the child to return to the natural home, and if return home is not likely, what efforts have been or should be made to evaluate other options. Finally, the court should consider the more intangible elements relating to the emotional well-being of the child, among them the impact on the child of immediate discharge versus an additional period of foster care. The child’s emotional well-being must be part of the equation, parental rights notwithstanding. Great deference is accorded the Family Court, which saw and heard the witnesses, and its findings will not be disturbed unless they lack a substantial basis in the record.</strong><br /> <br /> <br /> <br /><strong><u>Appellate Division, Third Department</u></strong><br /> <br /> <br /><strong>Not abuse of discretion to award $20,000 to the wife as wasteful dissipation credit based upon husband’s expenditures for escort services, exotic massage parlors, hotel and spa expenses. DRL § 236(B)(5)(d) factors do not have to be specifically cited when findings of court adequately articulate they were considered.</strong><br /> <br /><br /><strong> In Ramadan v Ramadan, --- N.Y.S.3d ----, 2021 WL 2367686, 2021 N.Y. Slip Op. 03636(3d Dept.,2021) Plaintiff (wife) and defendant ( husband) were married in February 2010 and had two children (born in 2011 and 2014). In August 2016, the wife commenced the action for divorce. Following trial Supreme Court, granted the wife a divorce, equitably distributed the parties’ marital property, awarded child support to the wife and denied the parties’ respective requests for counsel fees. A judgment of divorce was entered in December 2018. The court thereafter entered a qualified domestic relations order (QDRO).</strong><br /> <br /><strong> The Appellate Division rejected he husband’s assertion that reversal was required because Supreme Court’s decision did not reflect that the court considered the factors set forth in Domestic Relations Law § 236(B)(5)(d). The court’s findings revealed that the court considered the trial testimony and documentary evidence, as well as the relevant statutory factors. To the extent that the court did not cite to each factor in its decision, they do not have to be specifically cited when the factual findings of the court otherwise adequately articulate that the relevant statutory factors were considered.</strong><br /> <br /><strong> The husband argued that he should have been awarded a credit based upon monies used to pay some of the wife’s separate debts. If marital assets are used to reduce one party’s separate indebtedness, the other spouse can recoup his or her equitable share of the expended marital funds. The Appellate Division held that he was entitled to a credit for marital funds used to pay the wife’s student debt, and a mortgage related to real property which was the wife’s separate property.</strong><br /> <br /><strong> The wife testified that she discovered financial records and statements that caused her to conclude that the husband had contacted escort services and went to exotic massage parlors. When confronted about these expenses, his explanations consisted mainly of an inability to recall them. The husband also attempted to justify his hotel and spa expenses as family vacations, needing to get away due to marital difficulties or hosting friends, but Supreme Court apparently did not credit his testimony The Appellate Division held that the court did not abuse its discretion in awarding $20,000 to the wife as a wasteful dissipation credit based upon the husband’s expenditures.</strong><br /> <br /> <br /> <br /><strong>Supreme Court may, either before or after the appeal is resolved, award appellate counsel fees to enable a spouse to defend an appeal. Court should review financial circumstances of both parties with all other circumstances of the case, which may include the relative merit of the parties’ positions.</strong><br /> <br /><strong> In Curley v Curley, --- N.Y.S.3d ----, 2021 WL 2367679, 2021 N.Y. Slip Op. 03638 (3d Dept.,2021) in 2013, plaintiff (wife) obtained a judgment of divorce against defendant (husband). The husband appealed (first appeal), and the Court reversed, in part, and remitted the matter for further proceedings. While the first appeal was pending, the husband moved, inter alai, to restrain the distribution of funds held in escrow from the sale of the marital residence contending that the wife fraudulently withdrew funds from that account. The wife argued that the motion was frivolous, and cross-moved for sanctions. Supreme Court denied the motion, finding it to be frivolous, and, as a sanction, granted the wife counsel fees. The husband appealed and the Court affirmed. In September 2015, the wife moved for an order, inter alia, directing him to pay for storage and disposal of personal property. Supreme Court granted the motion, and the husband appealed. The Court affirmed. After the husbands second appeal had been decided and while his third appeal was pending, the wife moved for counsel fees incurred in defending the second and third appeals. The husband opposed the motion and cross-moved for counsel fees. Supreme Court granted the wife’s motion, denied the husband’s cross motion and determined to impose a sanction upon the husband for bringing his cross motion for counsel fees. Following a hearing, Supreme Court awarded the wife $21,450 in counsel fees and disbursements associated with defending the second and third appeals and related motion practice and imposed a $1,500 sanction upon the husband.</strong><br /> <br /><strong> The Appellate Division affirmed. It held that Supreme Court may, either before or after the appeal is resolved, award appellate counsel fees to enable a spouse to defend an appeal. In exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions.” The order appealed from reflected that Supreme Court largely based its award of counsel fees to the wife upon its assessment that the appeals were frivolous and wholly without merit, an assessment that was supported by the record. The order also reflected that Supreme Court properly considered the parties’ respective financial circumstances, including the amount of legal services billed in connection with the appeals and related motion practice, and reasonably concluded that the parties’ relative net worth’s supported an award of counsel fees to the wife. Although the husband did not challenge the amount of counsel fees awarded, the record demonstrated that, in crafting its award, Supreme Court thoroughly and carefully examined the billing records and testimony received from the wife’s attorney. It discerned no abuse of discretion in Supreme Court’s determination.</strong><br /> <br /> <br /> <br /><strong><u>Appellate Division, Fourth Department</u></strong><br /> <br /> <br /><strong>Akin to abatement rule that applies in divorce action, support action, including any related claim for attorneys’ fees, abates upon decedent’s death</strong><br /> <br /><strong> In Bomer v Dean, --- N.Y.S.3d ----, 2021 WL 2471033, 2021 N.Y. Slip Op. 03937(4th Dept.,2021) the Appellate Division agreed with defendant that, under the circumstances of this case, a 2014 support action and a 2016 divorce action abated upon decedent’s death, precluding the court from taking any further measures in either action. It is well settled that a divorce action abates upon the death of either party to the action because the marital relationship ceases to exist at that time (see Cornell v. Cornell, 7 N.Y.2d 164 [1959]. When abatement occurs, the court lacks jurisdiction to act. The abatement rule also typically applies to ancillary issues, such as maintenance and attorneys’ fees sought in a divorce action, which are “necessarily dependent on the existence of a divorce action” and, with respect to those issues, applies regardless of which spouse, payee or payor, has died. There are, however, some exceptions to the rule that divorce actions abate upon the death of a party. Specifically, courts have recognized that abatement does not occur when a party’s rights have vested prior to the death or when all that remains to be done in the action following a party’s death is for the court to effectuate a ministerial act. Here, neither exception applied with respect to the 2016 divorce action inasmuch as decedent had not acquired any vested rights with respect to maintenance or attorneys’ fees, nor were only ministerial acts remaining in that action.</strong><br /> <br /><strong> The Appellate Division concluded that the 2014 support action, including any related claim for attorneys’ fees, also abated upon decedent’s death and should have been dismissed. Akin to the abatement rule that applies in the context of a divorce action, it noted that any order of support terminates upon the death of either party (see Family Ct Act § 412 [10] [d]). Inasmuch as no order of support was ever entered on decedent’s behalf with respect to the 2014 support action, it concluded that decedent did not acquire any vested rights to spousal support or any other ancillary relief in that action prior to her death, and therefore that action fully abated upon decedent’s death.</strong><br /> <br /> <br /> <br /><strong> Failure to include transcripts and relevant papers related to ruling in record on appeal precludes review by Appellate Division</strong><br /> <br /><strong> In Lapoint v Claypoole, --- N.Y.S.3d ----, 2021 WL 2471012 (Mem), 2021 N.Y. Slip Op. 03947(4th Dept.,2021) the Appellate Division rejected defendant’s contention that the court erred in failing to award him credits for certain carrying costs and expenses relating to the repair and sale of the marital home. To the extent that defendant challenged the court’s ruling that documentary evidence regarding those expenses was inadmissible, defendant failed to include the transcripts and relevant papers related to that ruling in the record on appeal, and therefore he, as the appellant, must suffer the consequences of having submitted an incomplete record.</strong><br /> <br /> <br /> <br /><strong> AFC properly informed court of child’s wishes and advocate for a result different from the child’s position where mother’s persistent and pervasive pattern of alienating child from father was likely to result in a substantial risk of imminent, serious harm to the child. </strong><br /> <br /> <br /><strong> In Matter of Vega v Delgado, --- N.Y.S.3d ----, 2021 WL 2471097 (Mem), 2021 N.Y. Slip Op. 03956 (4th Dept., 2021) the Appellate Division affirmed an order which awarded sole custody and primary physical residency of the child born in 2009 to respondent father, with visitation to the mother. It held that contrary to the mother’s contention, the Attorney for the Child (AFC) did not improperly substitute her judgment for that of the child by advocating a position that was contrary to the child’s express wishes. An AFC must zealously advocate the child’s position (22 NYCRR 7.2 [d]) and, if the child is capable of knowing, voluntary and consider] believes that what the child wants is not in the child’s best interests (22 NYCRR 7.2 [d] [2]; see Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1680, 12 N.Y.S.3d 684 [4th Dept. 2015]). Where, however, the AFC is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the AFC is justified in advocating a position that is contrary to the child’s wishes” (22 NYCRR 7.2 [d] [3]). The record supported the determination that the mother’s persistent and pervasive pattern of alienating the child from the father was likely to result in a substantial risk of imminent, serious harm to the child. It concluded that the AFC acted in accordance with her ethical duties by informing the court of the child’s wishes and then advocating for a result different from the child’s position.</strong><br /> <br /> <br /> <br /><strong><u>Supreme Court</u></strong><br /> <br /><strong>Notary’s completion of the certificate of acknowledgment to separation agreement within 4 days of execution was sufficiently timely so as to be legally valid under Executive Order No. 202.7.</strong><br /> <br /><strong> In Ryerson v Ryerson, --- N.Y.S.3d ----, 2021 WL 2656884, 2021 N.Y. Slip Op. 21172 (Sup Ct, 2021) Supreme Court denied defendants motions to declare a March 29, 2020 separation agreement between the parties to be null and void for lack of a proper acknowledgment. The parties engaged McCoskery, who was a notary, to act as a mediator in assisting them in resolving matters attendant to their divorce. McCoskery prepared a separation agreement and emailed it to both parties for their review. Because the Governor had declared a state of emergency on March 7, 2020 and authorized the provision of notarial services by audio-video technology in Executive Order No. 202.7, McCoskery and the parties arranged for the separation agreement to be executed by them under his supervision via Zoom video conferencing and McCoskery would complete the acknowledgment of their signatures in accordance with Executive Order No. 202.7. The defendant contended that the signed agreement had to be electronically sent to McCoskery on the day the parties signed it in order for the acknowledgment to be legally valid under Executive Order No. 202.7. According to that Order, once the agreement was signed during the video conference a legible copy of the signed agreement was to be “transmit[ted] by fax or electronic means . . .directly to the Notary on the same date it was signed.” Here, because the agreement was mailed on the date it was signed and McCoskery completed the acknowledgment on a different date, the defendant asserted that the entire agreement must be declared legally invalid. Supreme Court held that McCoskery’s completion of the certificate of acknowledgment to the separation agreement within four days of the parties’ execution of that agreement was sufficiently timely so as to be legally valid and the agreement was not rendered invalid or void by that lapse of time.</strong><br /> <br /> <br /><strong>When Judge acts as a fact finder Judiciary Law § 21 precludes a successor Judge from continuing a hearing or trial or rendering a determination on the issues involved when the testimony of these witnesses was only heard by the initial Judge</strong><br /> <br /><strong> In Gary G., v. Elena A.G., 2021 WL 2546596 (Sup Ct., 2021) the action was commenced in 2015 and during the trial the Court recused herself from the case and in 2019, the case was transferred Queens County to this Justice in his capacity as the Statewide Coordinating Judge for Matrimonial Cases. Supreme Court observed that Judiciary Law § 21 provides that, except in appellate courts, a Judge “shall not decide or take part in the decision of a question which was argued orally in the court, when he was not present and sitting therein as a judge.” In interpreting this provision, the Court of Appeals and Appellate Divisions of the First and Second Department have ruled that the statute does not preclude a successor Judge from determining a motion argued before another Judge so long as purely legal questions are involved (People v Hampton, 85 AD3d 1055, 1056 [2011], affd 21 NY3d 277 [2013]; Plunkett v Emergency Med. Serv. of NY City, 234 AD2d 162, 163 [1996]). Similarly, Judiciary Law § 21 “does not prevent the substitution of a Judge in a jury trial since the ultimate determination of guilt or innocence belongs to the jury and not the Trial Judge” (People v Thompson, 90 NY2d 615, 621 [1997]). However, it necessary follows from these rulings that when a Judge acts as a fact finder and is required to weigh the credibility of witnesses, Judiciary Law § 21 precludes a successor Judge from continuing a hearing or trial or rendering a determination on the issues involved when the testimony of these witnesses was only heard by the initial Judge (People v Massey, 191 AD3d 1488 [2021]; People v Banks, 152 AD3d 816, 818 [2017]; Matter of Connelly-Logal v West, 272, AD2d 920 [2000]; Matter of Fellows v Fellows, 25 AD2d 865 [1966]). In such cases, a new hearing or trial before the successor Judge is required. Here, the issues before the Court during the hearing that she presided over were not purely legal in nature. The Court was acting as a fact finder and was required to weigh the credibility of the witnesses who testified before her. Under the circumstances, the court was precluded by Judiciary Law § 21 from taking judicial notice of the prior testimony before and continuing on with the hearing. Instead, a de novo hearing had to be conducted before this court.</strong></span><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" /><br style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px; font-weight: 700;" />Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-670483738615919452021-06-02T10:51:00.001-04:002021-06-02T10:51:16.005-04:00Recent Decisions June 2, 2021<p><span style="font-family: arial;"> </span></p><p class="MsoNormal"><b><u><span style="color: red;"><span style="font-family: arial;">Appellate Division,
Second Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="color: red;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="color: red;"><span style="font-family: arial;">Party claiming an investment account was
actively managed has the burden of proof with respect to the claim.<span style="mso-spacerun: yes;"> </span>Expenses of leisure, extracurricular and
enrichment activities are encompassed within the basic child support award. A
court can order a parent to pay these expenses over and above basic child
support, but it is a deviation from the basic statutory formula and requires an
analysis under the factors set forth in Domestic Relations Law § 240(1–b)(f).<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><!--[if supportFields]><span
lang=EN-CA style='mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span><![endif]--><span style="font-family: arial;"><o:p></o:p></span></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Sinnott v Sinnott, --- N.Y.S.3d ----, 2021 WL 1901679, 2021 N.Y. Slip Op. 03073
(2d Dept,2021) the parties were married in 1989, and were the parents of one
child born in 2003, as well as two emancipated children. The plaintiff
commenced this action on February 16, 2016, by filing a summons and complaint.
Pursuant to a so-ordered custody and parenting stipulation, the plaintiff had
sole legal and residential custody of the child. The defendant appealed from so
much of the judgment as denied him a separate property credit of $937,000, (2)
directed him to pay child support and add-on expenses until the child reached
the age of 22 years and six months under stated circumstances, (3) directed him
to pay 80% of the child’s private high school tuition, fees, books, supplies,
materials, class trips, enrichment activities, and all school-related expenses,
and (4) directed that certain investment accounts be equally divided between
the parties without specifying a date of valuation for those accounts or limiting
distribution only to marital property. The plaintiff cross-appealed from so
much of the judgment as (1) directed the defendant to pay child support of only
$4,281.44 per month and only 80% of add-on expenses for the child, (2) declined
to make the award of maintenance and child support retroactive to the date of
commencement of the action, (3) declined to direct the defendant to pay the
cost of health insurance for the plaintiff, and (4) declined to direct the
defendant to obtain or maintain life insurance in an amount sufficient to
secure his support obligations.<o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
defendant contended on appeal that the Supreme Court erred by failing to direct
that the plaintiff’s investment accounts should be valued as of the date of
commencement of the action, and that only marital property in those accounts
should be subject to equitable distribution. The valuation date of a marital
asset may be set “anytime from the date of commencement of the action to the
date of trial. The court failed to set forth the valuation date for the
investment accounts . The party claiming that an account was actively managed,
or contained separate property not subject to equitable distribution, has the
burden of proof with respect to those claims. The defendant failed to provide
evidence as to whether the accounts in question were actively managed or
passive. The Supreme Court therefore did not improvidently exercise its
discretion in treating those accounts, in effect, as passive accounts, by its
direction that the accounts be liquidated within 30 days from the entry of the
decision after trial and that the resulting proceeds be divided 50–50. However,
since assets must be valued at a date not earlier than an action’s commencement
nor later than the trial it modified modify the judgment to the extent of
directing that the accounts be valued as of August 28, 2018, the first date of
trial.<o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>The Appellate Division held that the
Supreme Court made numerous errors when calculating the defendant’s basic child
support obligation under the Child Support Standards Act (CSSA). Supreme Court
incorrectly calculated his gross income for 2017. The defendant’s gross (total)
income as should have been ... reported in the most recent federal income tax
return was $1,037,044, and, the defendant’s gross income for CSSA purposes was
$1,061,044.25. The defendant’s income for CSSA purposes was $975,399.57. The
plaintiff’s income for CSSA purposes was $78,000 per year. The defendant’s
share of the basic annual support obligation was 92.6% of $25,160 or the annual
sum of $23,298.16. It modified the judgment of divorce to direct the defendant
to pay the plaintiff $4,591.42 per month in basic child support.<o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>Regarding
the add-on for uncovered, unreimbursed medical and related expenses,
responsibility for future reasonable unreimbursed health care expenses shall be
prorated in the same proportion or percentage as each parent’s income bears to
the combined parental income. It modified the judgment of divorce to provide
that the defendant’s pro rata share of the child’s uncovered, unreimbursed
medical and related expenses was 92.6%, the same proportion as his income was
to the combined parental income<o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division noted that education expenses are not directly connected to
the basic child support calculation” and are not necessarily prorated in the
same proportion or percentage as each parent’s income bears to the combined
parental income. Supreme Court did not improvidently exercise its discretion by
directing the defendant to pay 80% of the child’s tuition at Marymount High
School of New York, or a similar private high school, nor by requiring the
defendant to pay 80% of the child’s fees, books, supplies, and materials.<o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division held that Supreme Court improvidently exercised its
discretion by directing the defendant to pay 80% of the child’s class trips,
enrichment activities, and all other school related expenses. Basic child
support, when calculated properly, is presumed to meet all the child’s basic
needs. Thus, the expenses of leisure, extracurricular and enrichment
activities, such as after-school clubs, sporting activities, etc., are usually
not awarded separately, but are encompassed within the basic child support
award. A court can order a parent to pay these expenses over and above basic
child support. However, if it does so, it is a deviation from the basic
statutory formula and requires an analysis under the factors set forth in
Domestic Relations Law § 240(1–b)(f). Although all the factors do not have to
present, the court needs to articulate its reasons for making such a deviation
from basic child support and relate those reasons to the statutory paragraph
(f) factors. Here, the Supreme Court did not provide a benchmark for what class
trips, enrichment activities, and all other school related expenses could
include and there was no cap on the total cost. In any event, under the
circumstances of this case, it found that the award of basic child support was
sufficient to meet these needs.<o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division held that<span style="mso-spacerun: yes;"> </span>Supreme
Court improperly defendant to pay basic child-support and add-on expenses for
the child after she reaches the age of 21. A parent has no legal obligation to
provide for or contribute to the support of a child over the age of 21.<o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division held that Supreme Court should not have directed the
defendant to pay maintenance and child support commencing on the first day of
the first month following its decision after trial. A party’s maintenance and
child support obligations commence, and are retroactive to, the date the
applications for maintenance and child support were first made, which, in this
case, was February 16, 2016. However, the party is also entitled to a credit
for any amount of temporary maintenance and child support already paid. Here,
the defendant may be entitled to credit for voluntary child support payments
which were made prior to a pendente lite order dated August 16, 2017, and for
voluntary maintenance payments made during the pendency of the action. In
addition, he was entitled to a credit for any amount of temporary maintenance
and child support which was paid pursuant to the pendente lite order. It
remitted the matter to the Supreme Court, for a determination as to the amount
of retroactive child support, including add-ons, and maintenance arrears from
February 16, 2016, giving the defendant appropriate credits <o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division held that under the circumstances of this case, the Supreme
Court should have directed the defendant to pay the plaintiff’s health
insurance costs during the period the defendant is obligated to pay
maintenance, and should have directed the defendant to obtain or maintain a
policy of life insurance for the benefit of the plaintiff and the child in an
amount sufficient to secure his maintenance, child support, and health
insurance obligations. <o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><span style="font-family: arial;"><b><span style="color: red;">Under UIFSA Florida retained exclusive
jurisdiction over his child support obligation to the daughter, where mother
died, and father remained in Florida although daughter moved to New York and
under Florida law, his obligation to support the daughter ceased when she
turned 18</span></b><b><span style="mso-tab-count: 1;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Nassau County Department of Social Services v Ablog, 2021 WL 1899886
(2d Dept.,2021) pursuant to a 2009 Florida judgment of divorce, the father was
obligated to pay child support for the daughter “until the child attains the
age of eighteen years or graduates from high school, as long as the child is
progressing in school and will graduate before attaining the age of nineteen
years.” The daughter resided with her mother following the judgment of divorce
until February 2018, when the mother died and the father became the custodial
parent. The daughter turned 18 years of age in September 2018. She moved to New
York in 2019. The father continued to reside in Florida. The daughter applied
for and began receiving public assistance in Nassau County. In July 2019, the
Nassau County Department of Social Services filed a petition for support on
behalf of the daughter. The father moved to dismiss the petition for lack of
subject matter jurisdiction pursuant to the Uniform Interstate Family Support
Act (UIFSA), arguing that Florida retained exclusive jurisdiction over his
child support obligation to the daughter, and that under Florida law, his
obligation to support the daughter ceased when she turned 18. The Support
Magistrate denied the motion, finding that the subject application was not
seeking to modify the father’s existing child support obligation in Florida,
but, instead, was a de novo application for support. The Appellate Division
reversed. It held that under the [Full Faith and Credit for Child Support
Orders Act] and UIFSA, the state issuing a child support order retains
continuing, exclusive jurisdiction over its child support orders so long as an
individual contestant continues to reside in the issuing state” (Matter of
Spencer v. Spencer, 10 N.Y.3d 60, 66, 853 N.Y.S.2d 274; see 28 USC § 1738B[d];
cf. Family Ct Act § 580–205). Accordingly, a state may modify the issuing
state’s order of child support only when the issuing state has lost continuing,
exclusive jurisdiction. The federal statute defines a “modification” to mean “a
change in a child support order that affects the amount, scope, or duration of
the order and modifies, replaces, supersedes, or otherwise is made subsequent
to the child support order” (28 USC § 1738B[b][8]). Under the plain language of
the federal statute, the New York order of support was a “modification” of the
Florida judgment. Since the father still resided in Florida, that state had
continuing, exclusive jurisdiction of the child support order, despite the
termination of his obligations under that order, and New York did<span style="mso-spacerun: yes;"> </span>not have subject matter jurisdiction to
modify that order.<o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><span style="font-family: arial;"><b><span style="color: red;">There is a rebuttable presumption that
interim counsel fees shall be awarded to less monied spouse, and courts should
normally grant a request made by the nonmonied spouse, in the absence of good
cause to deny the request</span></b><b><span style="mso-tab-count: 1;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Tomassetti v Tomassetti, --- N.Y.S.3d ----, 2021 WL 1897796 (Mem), 2021 N.Y. Slip
Op. 03075 (2d Dept.,2021) the plaintiff commenced an action for a divorce
against the defendant in 2017. In April 2018, the Supreme Court awarded the
plaintiff interim counsel fees of $200,000. In August 2018, the plaintiff filed
a motion seeking additional interim counsel fees of $376,524. The court granted
the plaintiff’s motion to the extent of directing the defendant to pay$165,000
to the plaintiff’s counsel. The Appellate Division observed that there is a
rebuttable presumption that interim counsel fees shall be awarded to the less
monied spouse, and courts should normally exercise their discretion to grant
such a request made by the nonmonied spouse, in the absence of good cause to
deny the request. It found that the significant disparity between the financial
circumstances of the defendant, a real estate investor and developer with
considerable disposable income and a net worth approaching $200 million, and
those of the plaintiff could not seriously be disputed. It held that, the
Supreme Court improvidently exercised its discretion in limiting, without good
cause, the plaintiff’s award of additional interim counsel fees to $165,000,
which was far less than the amount of legal fees the plaintiff had already
incurred. It found that an award of additional interim counsel fees of $370,000
was appropriate.<o:p></o:p></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><u><span style="color: red;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><span style="color: red;"><span style="font-family: arial;">Contract for Preservations and Disposition
of Embryos not violative of Domestic Relations Law §236(B)(3)<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal" style="mso-layout-grid-align: none; text-autospace: none;"><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-family: arial;"> In
K.G., v. J.G.,--- N.Y.S.3d ----, 2021 WL 2021873, 2021 N.Y. Slip Op. 21140 (Sup
Ct, 2021) an action for a divorce, the
plaintiff moved for declaratory judgment
regarding her rights under a contract with her husband and Reproductive Medical
Associates of New York (“RMA”) containing an agreement entitled “Consent for
Cryopreservation of Embryo(s) by Couples with Joint Custody.” Plaintiff argued
that pursuant to this specific contract, she had the right to dispositional
control of the embryos created by RMA with the parties’ genetic material. Defendant cross moved for summary judgment, arguing
that the contract was unenforceable. The Consent agreement provided for of the
embryos, and the procedures for using the embryos or for transferring the
embryos should the parties wish another facility to preserve them. The
contract was made with RMA’s pre-printed
forms and was signed by the plaintiff and the defendant, but was not notarized
or subscribed and acknowledged in the form required for a deed to be recorded. Supreme
Court held that Domestic Relations Law §236(B)(3) which requires agreements
between married couples to be subscribed and acknowledged in the form required
for a deed to be recorded, was not applicable to this contract which included
services from and benefits to a third party. The Court of Appeals in Kass v.
Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998) unequivocally
stated that “agreements between progenitors, or gamete donors, regarding
disposition of their pre-zygotes should generally be presumed valid and binding
and enforced in any dispute between them.” Furthermore, IVF contracts such as
this one are not violative of public policy and are specifically encouraged by
the Kass decision. Plaintiff’s motion to declare that the post-marital
dispositional election in the Consent agreement executed on May 18, 2016 was
enforceable was granted; the defendant’s
cross motion was denied.</span><span style="font-size: 11pt;"><o:p></o:p></span></b></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-56605196203401808232021-05-18T08:56:00.002-04:002021-05-18T08:56:16.784-04:00Recent Decisions May 18, 2021<p><span style="font-family: arial;"> May 16, 2021</span></p><p><br /></p><p><span style="font-family: arial;"><b>Appellate Division, Second Department</b></span></p><p><span style="font-family: arial;"><b>Supreme Court had authority to modify child support under DRL § 236[B][9][b][2][i] upon showing substantial change in circumstances despite provision of agreement restricting modifications of child support</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Park v Park, --- N.Y.S.3d ----, 2021 WL 1653674, 2021 N.Y. Slip Op. 02536 (2d Dept., 2021) the parties were married in June 2000, and had two children, born in 2002 and 2008. On November 14, 2014, the parties entered into a stipulation of settlement in which they agreed to share joint legal custody of the children, with the plaintiff having primary residential custody. In an agreement dated March 24, 2016, the parties agreed that the defendant would pay maintenance to the plaintiff for a period of 18 months, and the defendant would also pay child support. A judgment of divorce dated September 16, 2016, incorporated but did not merge the stipulation of settlement and the maintenance and support agreement. The Appellate Division held, inter alia, that Supreme Court had the authority to modify the parties’ child support obligations upon a showing of a substantial change in circumstances despite the provision of the maintenance and support agreement restricting modifications of the child support obligation during the first 18 months following the parties’ divorce (citing Domestic Relations Law § 236[B][9][b][2][i]; Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317) </b></span></p><p><span style="font-family: arial;"><b>Comment: </b></span></p><p><span style="font-family: arial;"><b>Domestic Relations Law § 236[B][9][b][2][i] provides, in part: 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. </b></span></p><p><span style="font-family: arial;"><b>In Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317 (2d Dept.,2019) the parties' stipulation of settlement, which set forth the plaintiff's child support obligation, was executed after the effective date of the 2010 amendments to Domestic Relations Law § 236 (B) and Family Court Act § 451. Since the parties' stipulation of settlement post-dated the 2010 amendments, the defendant was not required to demonstrate a substantial and unanticipated change in circumstances resulting in a concomitant need, or that the stipulation of settlement was not fair and equitable when entered into, to establish her entitlement to an upward modification of the plaintiff's child support obligation. Additionally, the parties specifically opted out of those provisions of the Domestic Relations Law which allow for modification when “three years have passed since the order was entered, last modified or adjusted” or “there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted” (Domestic Relations Law § 236 [B] [9] [b] [2] [ii] [A], [B]). Thus, in order to establish her entitlement to an upward modification of the plaintiff's child support obligation, the defendant had the burden of establishing “a substantial change in circumstances” (Domestic Relations Law § 236 [B] [9] [b] [2] [i]; Family Ct Act § 451 [3] [a]). A substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order or judgment sought to be modified was issued. </b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Where habeas corpus proceeding is brought pursuant to DRL§ 70, and children resided outside of this State, reference must be made to the UCCJEA to determine if this state has “home state” jurisdiction </b></span></p><p><b><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Kassim v Al-Maliki, --- N.Y.S.3d ----, 2021 WL 1774145 (Mem), 2021 N.Y. Slip Op. 02800 (2d Dept.,2021) the parties lived with their children in New York until approximately the spring of 2016, when they traveled together to Yemen. The mother alleged that the family traveled to Yemen for the Ramadan and Eid holidays with the intention of returning to New York at the end of the holidays. The father alleged that the parties jointly agreed to relocate the family to Yemen. According to the mother, after the family arrived in Yemen, the father confiscated the passports of the mother and the children, such that they could not return to New York. The mother alleged that she was not able to return to the United States until 2019, after she signed a divorce agreement in the presence of the father and several other men, all of whom were carrying weapons, including firearms and traditional swords. In exchange for signing the agreement, the father returned the mother’s passport to her. The mother returned to New York in 2019 and commenced a proceeding, seeking a writ of habeas corpus to compel the father to produce the children before the Family Court and custody of the children. On October 9, 2019, the court directed the father, who was in New York at the time, to return the children to the court’s jurisdiction, to surrender his passport, and to remain in the court’s jurisdiction. The father moved to dismiss the petition for lack of subject matter jurisdiction. Subsequently, the father returned to Yemen, and the mother moved to hold the father in civil and criminal contempt and to issue a warrant for the father’s arrest and to compel his appearance in court. The court, without a hearing, granted the father’s motion, dismissed the petition, and denied the mother’s motion, based on its finding that it lacked subject matter jurisdiction over the proceeding. The Appellate Division noted that pursuant to Domestic Relations Law § 70, “[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award ... custody of such child to either parent.” Since the children resided outside of this State, reference must necessarily be made to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which provides, inter alia, that “a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a]). The UCCJEA defines “home state” as “the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75–a [7]). It found that the Family Court was required to hold a hearing as to the issue of whether New York or Yemen was the children’s home state, as there were disputed issues of fact regarding the circumstances under which the parties moved with the children from New York to Yemen. The court erred in concluding that it lacked subject matter jurisdiction to determine the mother’s petition without conducting a hearing. The petition was reinstated and the matter was remitted to the Family Court, for a hearing and new determination.</span></b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>At dispositional stage of a proceeding to terminate parental rights, Family Court must make its determination based solely on the best interests of the child. The court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Grace G, --- N.Y.S.3d ----, 2021 WL 1774163, 2021 N.Y. Slip Op. 02795(2d Dept.,2021) a proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appealed from an order which upon a finding that the mother had permanently neglected the child, terminated the mother’s parental rights. The Appellate Division reversed and remitted for entry of a suspended judgment. It observed that at the dispositional stage of a proceeding to terminate parental rights, the Family Court must make its determination based solely on the best interests of the child (see Family Ct Act § 631). Depending on the best interests of the child, the court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights (see Family Ct Act §§ 631, 633[b]; Social Services Law § 384–b[8][f]). A dispositional order suspending judgment provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child (see Family Ct Act § 633; Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60). Here, the Family Court’s determination to terminate the mother’s parental rights rather than to enter a suspended judgment was not in the child’s best interests. Although the child had been in foster care for several years, it was undisputed that the mother engaged in regular phone conversations with the child at least once a week; that, since March 2019, following a difficult pregnancy with her younger child which impeded her ability to travel from her apartment in upper Manhattan to the agency in Jamaica, Queens, where visitation occurred, she had been regularly visiting the child; that the child continued to refer to the mother as her mother and her foster parent as her auntie; and that there was a strong bond between the mother and the child and between the child and the mother’s younger child, who resided with the mother. In addition, the mother had completed a drug treatment program and was drug free, attended a parenting class with intentions to attend additional classes, underwent a mental health evaluation, and was receiving therapy and preventive services. Further, following the child’s placement in foster care, the mother, who, at the time that she gave birth to the child, was 20 years old and living in a group home, having entered foster care herself at the age of 17, obtained an associate’s degree and secured an apartment. Moreover, in a related derivative neglect proceeding filed with respect to the mother’s younger child, the mother was granted a suspended judgment which expired in July 2020. Consequently, under these circumstances, after the dispositional hearing, the court should have entered an order of disposition suspending judgment as requested by the mother and the attorney for the child, since the record demonstrated that such a disposition would have been in the child’s best interests.</span></b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Appellate Division, Third Department</b></span></p><p><span style="font-family: arial;"><b>Eight-year-old victim could testify as a sworn witness in juvenile delinquency proceeding despite preliminary questioning indicating his lack of knowledge of an oath where subsequent questioning established he understood difference between the truth and lie.</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Alexander CC, 191 A.D.3d 1113, 142 N.Y.S.3d 223, 2021 N.Y. Slip Op. 01101 (3d Dept.,2021) a juvenile delinquency proceeding, the Appellate Division held that the eight-year-old victim could testify as a sworn witness despite preliminary questioning indicating his lack of knowledge of an oath. Pursuant to Family Ct Act § 343.1, “[a] witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath” (Family Ct Act § 343.1[2]). Although preliminary questioning of the victim indicated that he did not know what an oath is, this fact was not determinative particularly where, as here, subsequent questioning of the victim by petitioner and Family Court established that he understood the difference between the truth and lie, understood that he was required to testify truthfully at the fact-finding hearing and promised that he would so testify. The victim also evinced an understanding that, if he were to tell a lie, he could “get in trouble” and be punished by the court.</span></b></p><p><b><br /></b></p><p><span style="font-family: arial;"><b>Literal compliance with terms of the suspended judgment will not suffice to prevent finding a violation. Must also show progress has been made to overcome specific problems which led to the removal. </b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;"> In Matter of Nahlaya MM., 2021 WL 1673597 (3d Dept.,2021) the Appellate Division affirmed an order pursuant to Social Services Law § 384–b, which granted petitioner’s motions to revoke a suspended judgment, and terminated respondent’s parental rights. It held that a suspended judgment is intended to provide a parent who has permanently neglected his or her children with a brief period within which to become a fit parent so that the children can be returned to him or her in safety. A parent’s noncompliance with the terms of the suspended judgment during this grace period, if established by a preponderance of the evidence, may end with revocation of the suspended judgment and termination of his or her parental rights. Literal compliance with the terms of the suspended judgment will not suffice to prevent a finding of a violation. A parent must also show that progress has been made to overcome the specific problems which led to the removal of the children. While a parent’s failure to comply with the conditions of a suspended judgment does not automatically compel termination of parental rights, that noncompliance constitutes strong evidence that termination is, in fact, in the best interests of the child.</span></b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"><b> </b></span></span></p><p><span style="font-family: arial;"><b>Although father’s modification petition not technically a relocation application as he was not primary custodian “the practical effect of granting his request would be the relocation of the child, relocation must be considered within that framework</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Jelani PP v Melissa QQ, --- N.Y.S.3d ----, 2021 WL 1675714, 2021 N.Y. Slip Op. 02577(3d Dept.,2021) Petitioner (father) resided in Florida. Pursuant to a July 2016 custody order, entered on consent, Family Court granted the parents joint legal custody of the child, the mother primary physical custody of the child and the father specified parenting time. In July 2018, the father commenced a custody modification proceeding seeking primary physical custody of the child, alleging that the mother failed to, among other things, adequately provide for the child’s educational well-being. Following a fact-finding hearing, Family Court continued the award of joint legal custody, with the mother maintaining primary physical placement of the child, but modified the order to provide for, among other things, expanded parenting time for the father during the child’s summer vacation. The Appellate Division affirmed. Initially, it noted that, despite being treated as such by Family Court, the father’s modification petition was not technically a relocation application inasmuch as he was not the primary custodian of the child pursuant to the July 2016 custody order. However, inasmuch as “the practical effect of granting the father’s request for modification of custody would be the relocation of the child relocation must be considered within that framework. Therefore, the father was required to demonstrate a change in circumstances, which would then warrant an inquiry into whether modification of the existing custody order was necessary to further the best interests of the child, with the proposed relocation being one of the factors for the court to consider in making its best interests determination.</span></b></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="white-space: pre;"><span style="font-family: arial;"><b> </b></span></span></p><p><span style="font-family: arial;"><b> Lincoln hearing will not be conducted if it will have a potential negative impact on the child</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Ellen H v Joseph H, --- N.Y.S.3d ----, 2021 WL 1676661, 2021 N.Y. Slip Op. 02567(3d Dept.,2021) the Appellate Division affirmed an order which modified the joint custody, shared physical custody order entered on consent and awarded the mother sole legal and physical custody. It rejected the fathers argument on appeal that Family Court erred for failing to conduct a Lincoln hearing. The determination of whether to hold a Lincoln hearing lies within Family Court’s discretion and such a hearing will not be conducted if it will have a potential negative impact on the child. The father’s attorney requested that Family Court conduct a Lincoln hearing at the conclusion of the fact-finding hearing. The court denied the request, agreeing with the AFC that a Lincoln hearing would only cause more unnecessary stress for the children, particularly since the relevant and available facts were already before the court. Although a Lincoln hearing is the preferred manner for ascertaining the children’s wishes, such a hearing is not mandatory, particularly where, as here, the record reflects that the hearing itself may do more harm than good.</span></b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>There is no requirement that a notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers.</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Rosenheck v Schachter, 2021 WL 1795298 (3d Dept.,2021) the wife moved in Supreme Court for counsel fees related to certain post judgment motions made by the husband in the Court of Appeals. The husband argued on appeal that the wife’s notice of motion was defective because it failed to specify the grounds on which the motion was based, thus prejudicing the husband. The Appellate Division observed, citing CPLR 2214[a], a “notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor, but there is no requirement that the notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. (Shields v. Carbone, 99 A.D.3d 1100, 1102 [2012]). In practice, the notice of motion specifies the time and place of the hearing as well as the relief requested while the affidavits, affirmations, and memorandum of law state the grounds for the relief. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers on both sides. In support of her motion, the wife submitted the Court’s 2018 order, finding that the wife was entitled to appellate counsel fees based on the agreement, as well as various correspondence exchanged between the parties’ attorneys, one of which communicated to the husband’s counsel that the wife would be seeking judicial intervention if the counsel fees were not rendered pursuant to the agreement. Although the husband contended that he was prejudiced by the wife’s alleged failure to provide the grounds of her motion, it noted that the husband provided Supreme Court with a timely and detailed reply with various exhibits, including a copy of the agreement. Given the clear lack of prejudice or misunderstanding, it found that the court properly rendered a determination after examining all of the motion papers submitted.</span></b></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b>Where child of mixed race continued presence of confederate flag painted on a rock near her driveway would constitute a change in circumstances and factor in any future best interests analysis</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Christie BB v Isaiah CC, --- N.Y.S.3d ----, 2021 WL 1795373, 2021 N.Y. Slip Op. 02847 (3d Dept.,2021) following a fact-finding hearing, Family Court determined that the parties should continue to have joint legal and physical custody of the child, with parenting time on alternating weeks. However, the court expanded upon the prior order by adding a provision that the mother’s home shall be considered the child’s primary residence for the purpose of schooling. The Appellate Divison modified this portion of Family Court’s order. Although not addressed by Family Court or the attorney for the child, the Appellate Division pointed out that mother’s testimony at the hearing, as well as an exhibit admitted into evidence, revealed that she had a small confederate flag painted on a rock near her driveway. It stated, given that the child was of mixed race, it would seem apparent that the presence of the flag is not in the child’s best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother’s right to display the flag, if it is not removed by June 1, 2021, its continued presence would constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.</span></b></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b>Appellate Division, Fourth Department</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Error to award maintenance for period of time in excess of recommendation in the advisory schedule in DRL § 236 (B) (6) (f) (1) without adequately demonstrating reliance on relevant statutory factors enumerated in DRL § 236 (B) (6) (e)</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Gutierrez v Gutierrez, --- N.Y.S.3d ----, 2021 WL 1711367 (Mem), 2021 N.Y. Slip Op. 02662 (4th Dept.,2021) the defendant husband appealed from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a period of 17 years. The Appellate Division agreed with his argument that Supreme Court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). The Appellate Division also concluded that the court erred in awarding plaintiff maintenance without sufficiently setting forth the relevant factors enumerated in Domestic Relations Law § 236 (B) (6) (e) that it relied on in reaching its determination. Although the court need not specifically cite the factors enumerated in that section, its analysis must show that it at least considered the relevant factors in making its determination. The determination must also reflect an appropriate balancing of the wife’s needs and the husband’s ability to pay. The court stated that it awarded plaintiff $750 per week, an amount deviating from the statutory guidelines, for a duration in excess of the statutory guidelines based on the length of the marriage, the parties’ disproportionate earning capacities, and defendant’s tax debt. However, although the statutory guidelines use the length of the marriage to calculate the duration of the maintenance award, the length of the parties’ marriage is not a factor enumerated in Domestic Relations Law § 236 (B) (6) (e). Further, the court did not state what factors it considered, in addition to actual earnings, in determining the parties’ earning capacities. Moreover, the court did not determine whether defendant’s substantial tax debt would impede his ability to pay plaintiff’s maintenance award. Thus, the court failed to show that it considered any of the factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. It vacated the maintenance award and remitted the matter to Supreme Court to determine the amount and duration of maintenance, if any, after setting forth all relevant factors that it considered in making its decision.</span></b></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b>May 1, 2021</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>A defect in subject matter jurisdiction may be raised at any time by any party</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Hook v Snyder, --- N.Y.S.3d ----, 2021 WL 1567049 (Mem), 2021 N.Y. Slip Op. 02458 (1st Dept.,2021) the Appellate Division reversed an order which denied respondent mother’s motion to dismiss the custody modification petition on the ground of lack of subject matter jurisdiction, and granted the motion. It held among other things that contrary to petitioner’s contention, respondent’s prior appearances and execution of a stipulation in Family Court in New York did not constitute a waiver of her lack of subject matter jurisdiction defense; a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent (Matter of Nemes v. Tutino, 173 A.D.3d 16, 23, 101 N.Y.S.3d 538 [4th Dept. 2019]</span></b></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b>Where a prior action for a divorce is discontinued, and the parties reconcile or continue the marital relationship, and receive the benefits of the relationship, property acquired after the discontinuance may be deemed marital property. To determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution.</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Potvin v Potvin, --- N.Y.S.3d ----, 2021 WL 1556056, 2021 N.Y. Slip Op. 02429(2d Dept.,2021) the parties were married in 1974 and had two adult children. On July 9, 2015, the plaintiff commenced this action for a separation, and the defendant counterclaimed for a divorce. At trial, testimony was elicited that the parties previously separated in 1991. The plaintiff commenced a prior action for a divorce in 1996, and the defendant agreed to pay child support in the sum of $1,200 per month. The plaintiff discontinued the prior divorce action in 1998. The defendant then moved back into the marital residence. The plaintiff testified, however, that the parties entered into an oral agreement that they were not reconciling and that each waived any right to the other’s assets. The defendant denied entering into such an agreement and claimed it was his understanding that the parties had reconciled. However, the defendant continued to pay the plaintiff $1,200 per month as his contribution toward household expenses until 2012. In a decision and order dated November 22, 2017, made after the trial, the Supreme Court, inter alia, denied the defendant’s motion for an award of counsel fees. The court also found that there was no “economic partnership” between the parties at any time following their separation in 1991, and that “each party shall retain ownership of the assets under his or her dominion and control,” including cash accounts, stocks, stock options, pension and retirement accounts, life insurance policies, and deferred compensation plans. In a judgment of divorce dated December 19, 2017, the court, among other things, directed that each party shall retain sole ownership of the assets in their own names, and awarded the plaintiff the marital residence, with a directive that the plaintiff pay the defendant 25% of the appraised value of the marital residence, less the $25,500 interim award and the sum of $1,972.60 advanced by the plaintiff for the cost of the trial transcript. The court also directed the plaintiff to pay the defendant maintenance of $1,414 per week for one year, and directed that each party shall bear the cost of their own counsel fees. </span></b></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">The Appellate Division observed that where a prior action for a divorce is withdrawn or discontinued, and the parties “either reconcile or continue the marital relationship, and continue to receive the benefits of the relationship,” property acquired after the withdrawal or discontinuance of the prior divorce action may be deemed marital property (Iwanow v. Iwanow, 39 A.D.3d 471, 474, 834 N.Y.S.2d 247). “[I]n order to determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution. The parties resided together in the marital residence from 1998 until the commencement of the subject action in 2015, and for most of that time, shared the marital residence with the children. During that time, the parties visited relatives and attended social functions together, went on vacations together, and periodically engaged in sexual relations. Although the parties maintained separate bank accounts and credit cards, the parties filed joint tax returns and shared many of the family’s expenses, including the children’s college tuition and home renovations. Moreover, the parties named each other as executors and beneficiaries in their wills. Thus, the evidence demonstrated that the parties functioned as an “economic partnership” after the discontinuance of the prior divorce action, and the Supreme Court improperly found that the parties “ceased functioning as an economic partnership” and “lived separate financial lives” starting in 1991. Consequently, the court improvidently exercised its discretion in directing that the parties retain sole ownership of certain assets in their own names. Moreover, there was no written agreement to keep the parties’ finances separate. Marital partners may agree that property they acquire during the marriage will be divided in a particular manner, but that agreement must be in writing. Here, the alleged oral agreement between the parties did not constitute such an agreement. Thus, the distribution of marital property must be based upon the equitable consideration and application of enumerated factors and the court is required to set forth the factors it considered and the reasons for its decision (Domestic Relations Law § 236[B][5][g]). Here, the Supreme Court failed to set forth the factors it considered in making its decision as to equitable distribution, since the court only indicated that it relied upon the parties’ alleged oral agreement. It remitted the matter to the Supreme Court for a new determination of the issue of equitable distribution based upon findings of fact in compliance with Domestic Relations Law § 236(B).</span></b></p><p><b><span style="font-family: arial;"> </span><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">Furthermore, the Supreme Court erred in denying that branch of the defendant’s motion which was for an award of counsel fees. Since the defendant was the less monied spouse, the rebuttable presumption was applicable, and the plaintiff did not rebut that presumption. It remitted remit the matter to the Supreme Court for a hearing and determination as to the appropriate amount of counsel fees incurred by the defendant.</span></b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Parental access determinations should generally be made only after a full and plenary hearing and inquiry</b></span></p><p><b><span style="font-family: arial; white-space: pre;"> </span><span style="font-family: arial;">In Matter of Vazquez v Bahr, --- N.Y.S.3d ----, 2021 WL 1556199 (Mem), 2021 N.Y. Slip Op. 02397 (2d Dept.,2021) the Appellate Division held that parental access determinations should generally be made only after a full and plenary hearing and inquiry (S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411.) While the general right to a hearing in parental access cases is not absolute, where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required. Here, the record showed that there were disputed factual issues regarding the finding of the children’s best interests such that a hearing on parental access was required.</span></b></p><p><span style="font-family: arial;"><br /></span></p><p><br /></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-91165726817839993582021-04-21T10:43:00.002-04:002021-04-21T10:43:11.922-04:00Recent Decisions and Legislation - April 21, 2021<p><span style="font-family: arial;"><b>Recent Legislation</b></span></p><p><br /></p><p><span style="font-family: arial;"><b>Laws of 2021, Ch 56</b></span></p><p><b style="font-family: arial;">Laws of 2021, Ch 56, Part L § 4 to § 14 amended the Family Court Act as follows.</b></p><p><span style="font-family: arial;"><b> § 4. Family Court Act Section 353.7 was added</b></span></p><p><span style="font-family: arial;"><b> § 5. Family Court Act Section 355.5 was amended by adding a new</b></span></p><p><span style="font-family: arial;"><b> subdivision 10.</b></span></p><p><span style="font-family: arial;"><b> § 6. Family Court Act Section 756-a was amended by adding a new subdivision (h).</b></span></p><p><span style="font-family: arial;"><b> § 7. Family Court Act section 756-b was added </b></span></p><p><span style="font-family: arial;"><b> § 8. Family Court Act section 1017, subdivision 5 opening paragraph was designated paragraph (a) and a new paragraph (b) was added.</b></span></p><p><span style="font-family: arial;"><b> § 9. Family Court Act section 1055 subdivision (j), opening paragraph was designated paragraph (i) and a new paragraph (ii) was added.</b></span></p><p><span style="font-family: arial;"><b> § 10. Family Court Act section 1055-c was added.</b></span></p><p><span style="font-family: arial;"><b> § 11. Family Court Act section 1089, subdivision (c), paragraph 5, subparagraph (ix), Clause (C) was amended, and a new paragraph 6 was added.</b></span></p><p><span style="font-family: arial;"><b> § 12. Family Court Act section 1089, subdivision (d), subparagraph (vii), paragraph 2, clause (H), opening paragraph was designated item (I) and a new item (II) was added.</b></span></p><p><span style="font-family: arial;"><b> § 13. Family Court Act section 1091-a was added.</b></span></p><p><span style="font-family: arial;"><b> § 14. Family Court Act section 1097 was added.</b></span></p><p><span style="font-family: arial;"><b> § 17. This act is effective September 29, 2021 subject to certain conditions.</b></span></p><p><br /></p><p><span style="font-family: arial;"><b>Appellate Division, Second Department</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><b style="font-family: arial;">Children do not have right to participate in litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution. Participation of Children’s attorneys limited to matters in which children are the “subject of the proceeding”</b></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396138 (Mem), 2021 N.Y. Slip Op. 02286 the parties were married on July 23, 2003, and had three children. Before their marriage, they entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. Supreme Court denied the plaintiff’s motion to set aside the prenuptial agreement. Thereafter, the attorney for the children (AFC) moved to vacate which denied the plaintiff’s motion contending that case law issued subsequent to the hearing on the validity of the prenuptial agreement held that he should have been permitted to participate in the hearing to represent the interests of the children. Supreme Court granted the AFC’s motion, and directed a new hearing. The Appellate Division reversed. It held that contrary to Matter of Barbara T. v. Acquinetta M., 164 A.D.3d 1, 82 N.Y.S.3d 416, which pertained to the impact of an adoption subsidy upon an award of child support, the children here did not have standing to move to vacate the order that denied plaintiff’s motion to set aside the prenuptial agreement. “Although children have certain rights with respect to issues of child support, custody, and visitation in matrimonial actions, children do not have a right to participate in the litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution.” While children’s attorneys are expected to participate fully in proceedings in which they are appointed their participation is limited to matters in which the children are the “subject of the proceeding” (Family Court Act § 249; see Judiciary Law § 35[7]). Given that children are not bound by agreements entered into by their parents they are not the “subject” of proceedings to determine the validity of their parents’ prenuptial agreement related to maintenance and equitable distribution (Family Court Act § 249).</b></span></p><p><span style="font-family: arial;"><b> </b></span></p><p><span style="font-family: arial;"><b>Where plaintiff demonstrated she presently had no assets and was reliant on public assistance Court should have held hearing on her motion to set aside prenup on ground it was against public policy.</b></span></p><p><b style="font-family: arial;"><span style="white-space: pre;"> </span>In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396147 (Mem), 2021 N.Y. Slip Op. 02285 the parties were married on July 23, 2003, and had three children. The day before their marriage, the parties entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. At the time of the agreement, the plaintiff was employed in the field of technology and compliance, earning approximately $75,000 to $80,000 a year, and the defendant, a physician, operated a private practice, earning approximately $900,000 a year. The defendant also owned two properties in Queens. In 2008, the plaintiff ceased working outside of the home and became a full-time homemaker. In January 2015, the plaintiff commenced the action for a divorce. She moved, inter alia, to set aside the prenuptial agreement. In her affidavit submitted in support of the motion, the plaintiff averred, among other things, that she had no assets and had been required to seek public assistance. She annexed exhibits to her motion demonstrating that she was then reliant on public assistance. In an order dated August 4, 2018, made after a hearing, the Supreme Court, inter alia, denied plaintiff’s motion which was to set aside the parties’ prenuptial agreement, finding that she failed to sustain her burden of proof that the agreement was the product of duress, fraud, overreaching, or unconscionability. The Appellate Division reversed and remitted for a hearing and determination on the issue of whether the prenuptial agreement was unconscionable at the time this action was before the court. It observed that an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered. The plaintiff submitted evidence with her motion papers in support of her argument that the prenuptial agreement should be set aside as a matter of public policy since, at the time of her motion, she was unemployed, had become reliant on public assistance for herself and her children, and had no financial resources Supreme Court failed to address the plaintiff’s contention that the enforcement of the agreement would result in the risk of her becoming a public charge.</b></p><p><b style="font-family: arial;"><br /></b></p><p><b style="font-family: arial;">Where wife moved for interim counsel fees and motion was granted in part, her attorneys did not have standing to appeal from the order where they did not ask for any relief </b></p><p><b style="font-family: arial;"><span style="white-space: pre;"> </span>In Youngwall v Youngwalll, 2021 WL 1395688 (2d Dept.,2021) an action for a divorce the defendant moved, inter alia, for an award of interim counsel fees in the sum of $350,000. The Supreme Court granted the motion only to the extent of awarding her $35,000, payable to the nonparty Advocate, LLP. Advocate, LLP, appealed, asserting that because the defendant was the nonmonied spouse, she was entitled to an award of $350,000. The appeal was dismissed, with costs to the plaintiff payable by the nonparty-appellant (see CPLR 5511). The Appellate Division held that “a person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part. Here, while the interim counsel fees awarded to the defendant on her motion were made payable to Advocate, LLC, it did not seek any relief in the Supreme Court that was denied in whole or in part. Accordingly, Advocate, LLC, was not aggrieved by the order, and the appeal had to be dismissed.</b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><b style="font-family: arial;">Laws of 2021, Ch 97</b></p><p><b style="font-family: arial;">Laws of 2021, Ch 97 amended Family Court Act §§ 712, 732, 773 and 1012, effective April 8, 2021 by deleting the word "incorrigible". </b></p><p><b style="font-family: arial;">The Legislative Memorandum in support of the legislation states that the use of the word "incorrigible" in the context of family or children's courts dates back to the first juvenile court in Chicago in the late 1800s. It was adopted in New York when the first children's courts were established in the early 20th century and has carried over in each iteration of our juvenile or family court system since that time. Primarily applied to girls, and disproportionately to girls of color, this term - in practice - tends to single out girls of color for behaviors that do not match stereotypical feminine behavior. "Incorrigible" is defined as a person who is "incapable of being corrected, not reformable" (Merriam-Webster) and, thus this term is completely out of line with the current understanding of the goals of our Family Court system. The use of "incorrigibility" as a basis for Family Court intervention disparately impacts and harms girls and young women of color. Eliminating this term from the Family Court Act is intended to send a positive message and assist in the efforts to achieve full equality and empowerment for girls, young women, and people of color.</b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Determination to calculate income by applying reasonable rate of return to entire tort settlement award not an improvident exercise of discretion</b></span></p><p><b style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Gerghty v Muniz, --- N.Y.S.3d ----, 2021 WL 1287197 (Mem), 2021 N.Y. Slip Op. 02155(2d Dept.,2021) the parties had two children, both of whom resided with the father. The parties stipulated to an order of support requiring the mother to pay child support of $5 per month, due to the mother’s inability to work after a motor vehicle accident. After the mother received a personal injury settlement award from her accident, the father filed a petition seeking an upward modification of the mother’s child support obligation. The Support Magistrate directed the mother to pay child support of $464 per month. The Appellate Division observed that a lump-sum payment received by a parent in a tort action is not excluded from consideration in determining child support. The Support Magistrate’s determination to calculate her income by applying a reasonable rate of return to the entire settlement award was not an improvident exercise of discretion. The mother did not present any evidence to demonstrate what, if any, portion of the award was for future medical expenses. Further, while she spent a portion of the award, parents have a duty to use available financial resources to support their children and cannot insulate such resources from consideration for child support by transforming them into non-income producing assets. Nevertheless, as the child support obligation directed by the Family Court reduced the mother’s income below the self-support reserve then applicable the court was required to reduce the obligation to the greater of $50 or the difference between the mother’s income and the self-support reserve (see Family Ct Act § 413[1][d]), which was $5,419, or $452 per month.</b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Not a Denial of due process to interview child in camera at dispositional stage abuse proceeding </b></span></p><p><b style="font-family: arial;"> In Matter of Bryce EW, --- N.Y.S.3d ----, 2021 WL 1287131 (Mem), 2021 N.Y. Slip Op. 02167 (2d Dept.,2021) the Administration for Children’s Service) commenced a proceeding against the mother and the father alleging that they had abused the child by inflicting excessive corporal punishment on him. The child was temporarily placed in the custody of a paternal great aunt. The mother, as well as ACS and the child’s attorney, subsequently consented to the entry of an order of fact-finding without admission pursuant to Family Court Act § 1051(a). After a dispositional hearing, the Family Court determined, inter alia, that it was in the best interests of the child to continue his placement with the paternal great aunt until the completion of the next permanency hearing. The Appellate Division held that the Family Court did not deprive the mother of her right to due process at the dispositional stage of the proceeding by interviewing the child in camera outside of the presence of either the mother or her counsel. At the dispositional hearing, where the court’s sole focus is the best interests of the child, the court has ample inherent discretionary power to conduct the proceedings so as to avoid placing an unjustifiable emotional burden on the child while allowing the child to speak freely and candidly (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659). Here, the court providently exercised its discretion in conducting an in camera interview with the child outside of the presence of either the mother or her counsel, after allowing the mother’s counsel to submit to the court proposed questions for the interview.</b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><b style="font-family: arial;">Appellate Division, First Department</b></p><p><br /></p><p><span style="font-family: arial;"><b>When person designated in conditional judicial surrender declines to adopt the child, the surrender must be revoked upon the birth parent’s application</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Matter of L.S., --- N.Y.S.3d ----, 2021 WL 1218409, 2021 N.Y. Slip Op. 02085 (1st Dept.,2021) the Appellate Division held that when the person designated in a conditional judicial surrender pursuant to Social Services Law §383–c as the adopting parent declines to adopt the child, the surrender must be revoked upon the birth parent’s application. The Family Court was unwilling to vacate the surrender given the undisputed toll on the child’s well-being as a result of spending virtually her entire life in foster care. Instead, the court held a best interests hearing and determined that the mother’s parental rights remain terminated, and converted her conditional judicial surrender to an unconditional one, which permitted the child to remain free for adoption. The Appellate Division reversed because the designated person to adopt is a fundamental condition precedent to a surrender such that the person’s declination mandates its revocation upon the birth parent’s prompt application. </b></span></p><p><span style="font-family: arial;"><b> </b></span><b style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division observed that the legislature enacted section 383–c of the Social Services Law in 1990 to provide for new procedures for the surrender of a foster child to an authorized agency so as to free the child for adoption. The law lacked the dispositional alternatives for the conditional judicial surrender in the event of a substantial failure of a material condition prior to finalization of the adoption. That oversight was corrected by Matter of Christopher F., 260 A.D.2d 97, 701 N.Y.S.2d 171 (3d Dept. 1999) where the Appellate Division, Third Department held that the child’s adoption by the couple was a condition precedent of the surrender instrument, upon which its failure permitted the petitioner, upon her prompt application, to revoke it. The Christopher F. court found that the Family Court misconstrued Social Services Law § 383–c, reasoning that to assume that the legislature did not intend for the biological parent to have any recourse against the substantial failure of a material condition of the conditional surrender was not logical in view of the fact that the statute allowed the biological parents to surrender their child on the condition that the child be adopted by a particular person and gave the biological parents the right to notice when that condition failed. In Matter of Bentley XX (Eric XX.), 121 A.D.3d 209, 989 N.Y.S.2d 544 (3rd Dept. 2014), the Appellate Division, Third Department, held that the Family Court should have granted the father’s motion to revoke his surrender because there had been a substantial failure of a material condition, namely, that the couple, together, adopt the child. The Third Department noted that revocation continued to be a permissible disposition in a situation where the designated adoptive individual declines to adopt the child because the legislature did not disapprove of it, particularly in view of the fact that the legislature had the benefit of the holding in Matter of Christopher F. when it amended section 383–c[6][c]. The order of the Family Court was reversed, on the law, the petition denied and dismissed, and the mother’s application granted and the matter remanded for an expeditious continued hearing on the agency’s petition to terminate the mother’s parental rights.</b></p><p><span style="font-family: arial;"><b> </b></span><b style="font-family: arial; white-space: pre;"> </b></p><p><span style="font-family: arial;"><b>Appellate Division, Second Department</b></span></p><p><br /></p><p><span style="font-family: arial;"><b>Failure to make best interest determination and failure to articulate factors considered in awarding custody to plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children warrants reversal.</b></span></p><p><br /></p><p><span style="font-family: arial;"><b><span style="white-space: pre;"> </span>In Indictor v Indictor, --- N.Y.S.3d ----, 2021 WL 1202797, 2021 N.Y. Slip Op. 01968 (2d Dept.,2021) in 2012, the parties commenced actions for a divorce. In a temporary order of custody and visitation dated April 17, 2015, the Supreme Court, inter alia, awarded the plaintiff sole legal and physical custody of the children. In an order dated February 7, 2018, the Supreme Court appointed an attorney for the children, to be paid for equally by the parties. At a proceeding on March 26, 2018, the court indicated that it had received notification from the appointed attorney for the children that he had not been paid by either party, and was asking to be relieved. The court warned the defendant that if he did not pay the attorney for the children, the temporary order of custody and visitation would be “made final.” The court added that it could not conduct an in camera interview of the children without an attorney for the children. At a proceeding on April 27, 2018, the Supreme Court noted that the defendant still had not paid his share of the fees for the attorney for the children, and directed the plaintiff to provide the court with a proposed final order of custody. In an order dated June 1, 2018, the court, sua sponte, awarded sole legal and physical custody of the children to the plaintiff. The Appellate Division reversed and remitted for a hearing. It held that a court opting to forgo a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision. Supreme Court failed to inquire into whether an award of sole legal and physical custody to the plaintiff was in the best interests of the children and failed to articulate what factors it considered in awarding custody to the plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children. The plaintiff also failed to pay her share of the fees for the attorney for the children. It found the court erred in awarding the plaintiff sole legal and physical custody of the two minor children without conducting a hearing.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Where record is sufficient omission of recital that contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice rights or remedies may be corrected on appeal<span style="white-space: pre;"> </span></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b> <span style="white-space: pre;"> </span>In Matter of Martucci v Nerone, --- N.Y.S.3d ----, 2021 WL 1202639, 2021 N.Y. Slip Op. 01977(2d Dept.,2021) Family Court adjudicated the father in willful contempt of the support order. The Appellate Division agreed with the father that the order adjudging him to be in contempt of court [was] required to recite that the contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice the [mother’s] rights or remedies. However, because the finding of contempt was supported by the record, the omission of this recital was a mere irregularity which may be corrected on appeal and it modified the order of disposition to include the requisite recital.</b></span></p><p><br /></p><p><span style="font-family: arial;"><b>Revised Forms for Use in Matrimonial Actions</b></span></p><p><span style="font-family: arial;"><b>Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2021. The revised forms reflect the increases as of March 1, 2021 in the Self Support Reserve from $17,226 to $17,388 and in the federal Poverty Level Income for a single person from $12,760 to $12,880.</b></span></p><p><span style="font-family: arial;"><b>The Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2021 reflecting these changes are posted at http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml</b></span></p><p><b style="font-family: arial;">The revised forms are as follows:</b></p><p><span style="font-family: arial;"><b>Form UD-8(2) Maintenance Guidelines Worksheet</b></span></p><p><span style="font-family: arial;"><b>Form UD-8(3) Child Support Worksheet</b></span></p><p><span style="font-family: arial;"><b>Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)</b></span></p><p><b style="font-family: arial;">Post-Divorce Maintenance/Child Support Worksheet</b></p><p><span style="font-family: arial;"><b> The Uncontested Divorce Forms revised March 1, 2021 reflecting these changes are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml</b></span></p><p><b style="font-family: arial;">The revised forms are as follows:</b></p><p><span style="font-family: arial;"><b>Composite Uncontested Divorce Forms</b></span></p><p><br /></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>DRL ' 243 motion for Sequestration denied where plaintiff failed to make showing of necessity, such as consistent pattern of arrears or willful violation of a court order.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><b style="font-family: arial;">In Goldin v Levy, N.Y.S.3d , 2021 WL 921683, 2021 N.Y. Slip Op. 01481 (1st Dept.,2021) the Appellate Division held, inter alia, that the order that directed a hearing to determine arrears, civil contempt, and attorneys fees was not appealable, because it did not affect a substantial right (see CPLR 5701[a][2][v]; Zaharatos v. Zaharatos, 134 A.D.3d 926, 22 N.Y.S.3d 480 [2d Dept. 2015]; Kornblum v. Kornblum, 34 A.D.3d 749, 751, 828 N.Y.S.2d 402 [2d Dept. 2006]). Any party aggrieved by an order entered subsequent to the hearing may appeal from that order. </b><b style="font-family: arial;">The Appellate Division held that the motion court properly denied the plaintiffs motion seeking sequestration of defendants share of retirement accounts pursuant to Domestic Relations Law ' 243. Although plaintiff established some arrears, she failed to make a showing of necessity, such as a consistent pattern of arrears or a willful violation of a court order directing payment of arrears.</b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>Appellate Division, Second Department</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><b style="font-family: arial;">Sanction of drawing an adverse inference against the plaintiff, regarding all custody issues for failure to appear for updated forensic evaluation, an improvident exercise of discretion </b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>In Treanor v Treanor, N.Y.S.3d , 2021 WL 1010572 (Mem), 2021 N.Y. Slip Op. 08276 (2d Dept.,2021) several months after the commencement of this action for a divorce, the Supreme Court appointed a neutral forensic evaluator, who completed a forensic evaluation of the parties and their three children. In an order dated June 7, 2019, the court reappointed the forensic evaluator in order to conduct an update to the original forensic evaluation. Plaintiff violated the directives to participate in the updated forensic evaluation Upon the defendant=s motion for an order of preclusion, the Supreme Court found that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation, and imposed the sanction of drawing an adverse inference against the plaintiff with respect to custody issues at the time of trial. The Appellate Division found that Supreme Court properly determined that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation but under the circumstances of this case, the court improvidently exercised its discretion in imposing the sanction of drawing an adverse inference against the plaintiff regarding all custody issues at the time of trial on the ground that she failed to participate in the updated forensic evaluation rather than limiting the adverse inference to the circumstances of the forensic evaluation.</b></span></p><p><br /></p><p><span style="font-family: arial;"><b>Improper to award parental access with the child only as often as both the child and the parent agree.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>In Matter of Clezidor v Lexune, N.Y.S.3d , 2021 WL 900925, 2021 N.Y. Slip Op. 01409 (2d Dept.,2021) the Appellate Division reversed an order of the Family Court which, inter alia, awarded the mother parental access with the child only as often as both [the child] and [the mother] agree. It held that a court may not delegate its authority to determine parental access to either a parent or a child. Here, the order appealed from directed that the mother was only entitled to parental access with the child as often as she and the child agree. That provision effectively conditioned the mothers parental access on the childs wishes and leaves the determination as to whether there should be any parental access at all to the child.</b></span></p><p><br /></p><p><span style="font-family: arial;"><b>Appellate Division, Fourth Department</b></span></p><p><b style="font-family: arial;"><br /></b></p><p><b style="font-family: arial;">A Contempt application which does not strictly comply with Judiciary Law ' 756 is jurisdictionally defective.</b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>In Rennert v Rennert, N.Y.S.3d , 2021 WL 1049727, 2021 N.Y. Slip Op. 01630 (4th Dept.,2021) the plaintiffs contempt applications omitted the language warning defendant that his failure to appear in court may result in [his] immediate ... imprisonment for contempt of court. Because plaintiffs contempt applications failed to include the required warning language, they did not strictly comply with Judiciary Law ' 756, and were jurisdictionally defective.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b> </b></span><b style="font-family: arial;">Supreme Court</b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b> While the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>In JJ, v. TW, 2021 WL 1047105 (Table), 2021 N.Y. Slip Op. 50219(U) Sup Ct (2021) an action for a divorce Plaintiff moved to terminate spousal support payments awarded by family court on the ground that, as of the date of his application, he had tendered 13 consecutive monthly payments, more than double the amount of the calculated durational period@ set forth by the post divorce maintenance advisory durational guidelines. The support order Plaintiff challenged was issued in Family Court pursuant to Family Court Act ' 412. The Court observed that while the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration. DRL ' 236[B][5 a] [f] expressly states Athe court shall determine the duration of temporary maintenance by considering the length of the marriage. DRL ' 236[B][5 a] [g] further provides that temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first. The Family Court Act, on the other hand, does not relate the duration of spousal support to the length of the marriage. Rather, the Family Court Act provides that unless modified upon a showing of a substantial change in circumstances, any order of spousal support issued pursuant to Family Court Act ' 412. shall continue until the earliest of one of the following: a written or oral stipulation or agreement between the parties; the issuance of a judgment of divorce or other order in a matrimonial proceeding; or the death of either party (see FCA ' 412[10]). Here, Plaintiff failed to show a substantial change in circumstances warranting termination or modification of the spousal support order.</b></span></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><b style="font-family: arial;">Construing the emancipation clause in the parties agreement Supreme Court finds that child was emancipated by his enrollment in the United States Naval Academy</b></p><p><span style="font-family: arial;"><b><br /></b></span></p><p><span style="font-family: arial;"><b>In Denatale v. Denatale, 2021 WL 1096899 (Table), 2021 N.Y. Slip Op. 50247(U) (Sup Ct.,2021) the parties Stipulation of Settlement dated December 29, 2017 which was incorporated but did not merge into their Judgment of Divorce provided that the child support obligation would continue through the age of 22 even if the Children had completed college. The Stipulation provided, in part as follows at Article E: “The Husbands obligation to pay child support shall continue until the child attains the age of twenty two (22) regardless of whether a child is still in college or has completed college. Thus, by way of example, should Campbell graduate college at the age of 21, child support for her shall continue through age 22.” … Emancipation shall also include: Marriage (even though such a marriage may be void or voidable and despite any annulment of it); Permanent residence away from the residence of the Mother and the Father. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the mother and, hence, such a residence at boarding school, camp, or college is not an Emancipation Event; Death of the child (God forbid); Entry into the armed forces of the United States (provided that the Emancipation Event shall be deemed terminated and nullified upon discharge from such forces, and, thereafter, the period shall be the applicable period as if such an Emancipation Event by reason of the entry had not occurred); Engaging in full time employment upon and after the attaining by a child of 18 years of age....””Supreme Court held that the child was emancipated by his enrollment in the United States Naval Academy. The court cited as authority Beekman Ellner v. Ellner, 296 AD2d 404 (2d Dept. 2002), where the Appellate Division affirmed an order of the Family Court which terminated child support [s]ince the parties child enrolled in full time training duty at the U.S. Naval Academy at Annapolis and his life at Annapolis was largely controlled by the government, which also provided for the bulk of his material needs, he was clearly engaged in active military service to render him emancipated (citing 10 USC Sec 101[d][1]). Similarly, in Zuckerman v. Zuckerman, 154 AD2d 666 (2d Dept. 1989), the Appellate Division held that the parties son became emancipated when he entered West Point. There, the Appellate Division found that pursuant to 10 USC Sec 3075[b][2]1, upon entering West Point, the minor child is considered a member of the regular army and subject to extensive governmental control, which is inconsistent with a parent=s control and support of a child. The child attends West Point tuition free and is provided with room, board, health care, and monthly pay of $504.30, plus other allowances. Thus, he is self supporting and financially independent of his parents. Although the Stipulation here was clear that attendance at a college was not an emancipation event, it was also clear that enlistment in the military was one. The motion to terminate child support was granted as the parties son, was deemed emancipated.</b></span></p><p><br /></p><p><br /></p><p> </p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-87886266176431142452021-04-02T15:39:00.006-04:002021-04-02T15:39:39.483-04:00Recent Decisions and Legislation - March 16, 2021<p><b><span style="font-family: arial;"> Appellate Division, Second Department</span></b></p><p><b><span style="font-family: arial;">Where husband who placed spyware on wife’s computer invoked Fifth Amendment, and intentionally destroyed evidence as to what the spyware actually intercepted, appropriate sanction was to strike the causes of action in the complaint relating to the financial issues other than child support</span></b></p><p><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In C. C. v. A. R., --- N.Y.S.3d ----, 2021 WL 800051, 2021 N.Y. Slip Op. 01243 (2d Dept.,2021) the plaintiff installed spyware on the wife’s phone, invoked Fifth Amendment protections on the issue, and intentionally destroyed evidence as to what the spyware actually intercepted. The Appellate Division held that Supreme Court properly determined, under the circumstances here, that it was proper to infer that the plaintiff violated the defendant’s attorney-client privilege, and that the appropriate sanction was to strike the causes of action in the complaint relating to the financial issues of the case other than child support. It noted that a party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense’. Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed” (Pegasus Aviation I., Inc. v. Varig Logistica S.A., 26 N.Y.3d at 547, 26 N.Y.S.3d 218, 46 N.E.3d 601). Here, the Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff’s invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant’s conversations when she was in the vicinity of her attorney’s office. Although this presumption is rebuttable, the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff’s complaint seeking financial relief other than child support. Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence. These sanctions can include “precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action. Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party” (Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189).</span></b></p><p><b><span style="font-family: arial;"> </span></b></p><p><b><span style="font-family: arial;">Any monies spent from companies which are defendants separate property would not be considered marital property and could not be wastefully dissipated by the defendant.</span></b></p><p><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Rosen v Rosen, --- N.Y.S.3d ----, 2021 WL 799852, 2021 N.Y. Slip Op. 01278 (2d Dept.,2021) the parties were married on May 5, 1985. Prior to the marriage, in 1981, the defendant incorporated Airline Software, Inc. Airline was in operation through 2004, and then the name of the company was changed to Airframe Systems, Inc. The defendant incorporated various companies thereafter. The primary operating company from 2004 through 2011 was Aviation Software, Inc. In 2006, the defendant incorporated ASI Scanning, Inc., which eventually took over Aviation’s operations. </span></b></p><p><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The parties entered into a prenuptial agreement in which they agreed that the defendant’s separate property included shares of stock in Airline and GSRAI. The prenuptial agreement provided that the plaintiff waived all rights to the defendant’s separate property, as well as to any property that the defendant may in the future purchase or exchange with the proceeds of his separate property. The plaintiff also waived her right to any increase in value of the defendant’s separate property in which the defendant presently had an interest or in which he may have an interest acquired as a result of a sale or exchange of his separate property. </span></b></p><p><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The parties separated in 2009, and the plaintiff commenced this action for a divorce in March 2012. Supreme Court, inter alia, awarded the plaintiff a distributive award in the sum of $363,644.74, representing 30% of the value of the defendant’s interest in ASI and a net credit in the sum of $200,807.74 for the parties’ wasteful dissipation of marital funds. </span></b></p><p><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held the Supreme Court erred in determining that ASI was marital property and in awarding the plaintiff a percentage thereof. It was undisputed that the defendant’s interest in Airline, which was later renamed Airframe, constituted separate property. Since Airline exchanged its operations with Aviation, and Aviation exchanged its operations with ASI, the plaintiff waived all rights to the value of the defendant’s interest in ASI. </span></b></p><p><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division held that a party alleging that his or her spouse has engaged in wasteful dissipation of marital assets bears the burden of proving such waste by a preponderance of the evidence (Marino v. Marino, 183 A.D.3d 813, 820, 123 N.Y.S.3d 638). ASI and Aviation constituted the defendant’s separate property. Therefore, any monies spent from those companies would not be considered marital property and could not be dissipated by the defendant. The Supreme Court found that the vast majority of the funds that the defendant allegedly wastefully dissipated were generated from ASI. The defendant conceded that he wastefully dissipated $7,525 in marital funds. Thus, the plaintiff was entitled to a credit of only $7,525 for the defendant’s uncontested wasteful dissipation of marital assets.</span></b></p><p><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The plaintiff did not dispute the Supreme Court’s finding that she wastefully dissipated the proceeds from the sale of the marital home and, thus, there was no ground to disturb the court’s finding that the defendant is entitled to an award of the sum of $82,726.49, which represents 50% of the sum of $165,452.97 that the plaintiff received from those proceeds, less expenses. Accordingly, the defendant was entitled to a net distributive award in the sum of $75,201.49.</span></b></p><p><b><span style="font-family: arial;"> </span></b><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>The Appellate Division affirmed the awards to the plaintiff of maintenance of $4,000 per month for a period of three years, $211,300 in maintenance arrears, and attorneys’ fees of $30,000.</span></b></p><p><br /></p><p><b><span style="font-family: arial;">Error to decide motion to enjoin relocation request without considering the factors set forth in Matter of Tropea </span></b></p><p><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Conroy v Vaysman, --- N.Y.S.3d ----, 2021 WL 710591, 2021 N.Y. Slip Op. 08182 (2d Dept.,2021) the Appellate Division held that Family Court erred in deciding the mothers motion to enjoin the father’s relocation with the child to New Jersey without considering the factors set forth in Matter of Tropea. It observed that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. The factors to be considered by the court in its analysis are listed in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575.</span></b></p><p><b><span style="font-family: arial;"><br /></span></b></p><p><b><span style="font-family: arial;">Appellate Division, Third Department</span></b></p><p><b><span style="font-family: arial;"><br /></span></b></p><p><b><span style="font-family: arial;">Proceeding that sought to terminate the rights of one parent in the face of an existent permanency plan that sought to reunite the child with the other parent, were contradictory and could not be reconciled. Therefore, the petition should have been dismissed.</span></b></p><p><b><span style="font-family: arial;"><span style="white-space: pre;"> </span>In Matter of Xavier XX, --- N.Y.S.3d ----, 2021 WL 816376, 2021 N.Y. Slip Op. 0129 (3d Dept.,2021) Respondent was the father of the child (born in 2016). In September 2017, the child’s mother consented to the temporary removal of the child from her custody, and the child was placed in the care and custody of petitioner. Thereafter, petitioner commenced a neglect proceeding against the mother and the child was adjudicated a neglected child and the mother was placed under an order of supervision for one year. At a permanency hearing in November 2018, custody of the child was continued with petitioner. The goal of the permanency plan resulting from the hearing was to return the child to the mother. In February 2019, petitioner commenced a proceeding pursuant to Social Services Law § 384–b, seeking to adjudicate the child to be abandoned by respondent and to terminate his parental rights. After a hearing, Family Court determined that respondent abandoned the child. As such, it thereafter terminated respondent’s parental rights. The Appellate Division reversed. It held that the proceeding was improperly brought as the permanency plan in place at the time of the hearing with respect to the mother was to return the child to the mother. The statutory purpose of an abandonment proceeding is to free the child for adoption by terminating the parents’ rights to the child. Because this proceeding sought to terminate the rights of one parent in the face of an existent permanency plan that sought to reunite the child with the other parent, it did not serve that purpose. The end goals of these two concurrent proceedings were contradictory and could not be reconciled. Therefore, the petition should have been dismissed.</span></b></p><div><br /></div>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-25136427842809643492021-03-07T10:07:00.004-05:002021-03-07T10:18:34.232-05:00Recent Decisions and Legislation - March 1, 2021<p><span style="font-family: arial;"> </span></p><p class="MsoNormal"><b><u><span style="font-size: 11pt;"><span style="font-family: arial;">March 1, 2021</span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="background: white; color: red; font-size: 11pt;"><span style="font-family: arial;">Child Support Standards Chart Released</span></span></u></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><span style="font-family: arial;"><b><span style="font-size: 11pt;">The </span></b><a href="https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf"><b><span style="font-size: 11pt;">Child Support Standards Chart</span></b></a><b><span style="font-size: 11pt;"> (<span class="help">PDF</span>) was released on
March 1, 2021. It may be downloaded at </span></b><a href="https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf"><b><span style="font-size: 11pt;">https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf</span></b></a><b><u><span style="color: red; font-size: 11pt;"><o:p></o:p></span></u></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">The 2021 poverty income guidelines amount for a single
person as reported by the United States Department of Health and Human Services
is $12,880 and the 2021 self-support reserve is $17,388. The combined parental
income amount remains at $154,000.</span></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, First Department</span></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Support
Magistrate properly imputed income to the father based on cash and in-kind support
provided by his family, both prior to and after the filing of the petition</span></span></b></p>
<p class="MsoNormal" style="text-indent: 0.5in;"><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;">In Matter of Nannan L v Stephen L, --- N.Y.S.3d ----,
2021 WL 559146 (1<sup>st</sup> Dept.,2021) the Appellate Division affirmed an
order which denied the father’s petition for a downward modification of his
child support obligations. It held that the Support Magistrate properly imputed
income to the father based on cash and in-kind support provided by his family,
both prior to and after the filing of the petition (Family Ct Act §
413[1][b][5][iv][D] ), including payment for various in-patient drug treatment
programs, medical and dental care, and other expenses. The father’s family also
has been paying for him to live rent-free in a two-bedroom apartment on the Upper
West Side of Manhattan and gave him a substantial monthly stipend for his
personal use.</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that Family Court did not err
in failing to conduct a separate hearing on the modification petition. At the
hearing on the violation petition, the court heard evidence of his financial
circumstances from the entry of the order of support through the filing of the
modification petition, and up until the date the hearing concluded. The father
was aware that in the event the court found that he willfully violated the
order of support, it likely would dismiss the downward modification petition
and a hearing would be unnecessary. The father’s counsel confirmed that all
relevant evidence relating to the modification petition had been presented to
the court in the context of the violation hearin</span></span></b><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Third Department <o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><br /></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Failure to
satisfy statutory mandate of UCCJEA Requires Reversal. Family Offense
Jurisdiction is not determined by UCCJEA</span></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='mso-ansi-language:
EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Vashon H v Bret I, --- N.Y.S.3d ----, 2021 WL 624233, 2021 N.Y. Slip
Op. 01103 (3d Dept.,2021) the Appellate Division held that Family Court failed
to satisfy the procedural mechanisms required by the UCCJEA when a custody
petition is pending in another state. After becoming aware of the Ohio
proceeding, Family Court properly communicated with the Ohio court. The extent
of these communications was unclear; however, they apparently resulted in the
transmittance of an Ohio order to Family Court. Although the contents of the
Ohio order strongly implied that the Ohio court intended to retain
jurisdiction, as evidenced by its scheduling of the matter for trial, this did
not absolve Family Court of its obligation to create a record of its
communications and to provide that record to the parties. Family Court’s brief
summary of its determination following the communication, which was not placed
on the record in the presence of the parties, did not satisfy this statutory
mandate. Moreover, although it was a permissible exercise of discretion for
Family Court not to permit the parties to participate in its communication with
the Ohio court , the court was then required to allow the parties an
opportunity to present facts and legal arguments before it rendered a decision,
which it failed to do. (See <span style="color: black; mso-themecolor: text1;">DRL§
75-i(2)).<span style="mso-spacerun: yes;"> </span></span>It remitted for a new
hearing</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division also held that jurisdiction in the
context of a family offense petition is not determined by the UCCJEA, which
serves the limited purpose of enforcing orders of custody and visitation across
state lines (see Domestic Relations Law § 75[2]). Family Court and criminal
courts “have concurrent jurisdiction over any proceeding concerning acts which
would constitute” those delineated as both crimes and family offenses (Family
Ct Act § 812[1]). Additionally, although the majority of the acts alleged in
the family offense petition occurred in Ohio, Family Court’s jurisdiction is
not subject to the same geographic limitations as placed on that of the
criminal courts, as nothing “requires the predicate acts of a family offense to
have occurred in a particular county, state, or country in order for the Family
Court to possess subject matter jurisdiction” (Matter of Richardson v. Richardson,
80 A.D.3d 32, 42, 910 N.Y.S.2d 149 [2010]). Thus, Family Court’s jurisdiction
extended to cover the subject matter of the family offense petition, regardless
of the fact that the vast majority of the alleged acts were committed in Ohio.
Family Court should have entertained the family offense petition and,
accordingly, it reversed and remitted the matter for the proceedings.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Change of
Circumstances requirement for custody modification circumvented when <span style="mso-spacerun: yes;"> </span>prior custody order provides satisfaction of
certain conditions constitute necessary change in circumstances.</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Austin ZZ v Aimee A, --- N.Y.S.3d ----, 2021
WL 624156, 2021 N.Y. Slip Op. 01109 (3d Dept.,2021) the Appellate Division held
that while ordinarily, the party seeking to modify a prior order of custody
must first demonstrate that there has been a change in circumstances since
entry of the prior order that warrants an inquiry into the best interests of
the child and, if so, that modification of that prior order is necessary to
ensure the best interests of the child this requirement may, however, be
circumvented when the prior custody order provides that the satisfaction of
certain conditions will constitute the necessary change in circumstances.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: red;">Family Court was
statutorily precluded from rendering abuse findings where Respondent was not
biological father of the children</span></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Lazeria F, --- N.Y.S.3d ----, 2021 WL
624353, 2021 N.Y. Slip Op. 01096(3d Dept.,2021) Respondent Paris H. (mother)
was the mother of the five subject children – two daughters, a now-deceased
daughter, and two sons. Respondent Kaysaun I. (father) was the biological
father of the younger son and the younger daughter and resided with the mother
and the five children in the family home. The Appellate Division was<span style="mso-spacerun: yes;"> </span>reluctantly constrained to reverse Family
Court’s determination that the father severely abused the deceased child and
derivatively severely abused the older daughter and the older son. As the Court
has previously made clear, and as petitioner and the attorney for the child
conceded, unlike findings of abuse and neglect, which may be made against “any
parent or other person legally responsible for a child’s care” (Family Ct Act §
1012[a]), the current statutory language contained in Social Services Law §
384–b (8)(a)(I) only permits a finding of severe abuse to be made against a
child’s “parent.” Because he was not the biological father of these children,
Family Court was statutorily precluded from rendering such findings and it
was<span style="mso-spacerun: yes;"> </span>therefore, constrained to reverse
same. In a footnote the court urged the Legislature to expeditiously amend
Social Services Law § 384–b (8) to address the concerns it raised.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="color: red;">Court’s failure to
consult with the child or directly ascertain his wishes as required by Family
Ct. Act § 1089[d] did not warrant reversal of change of permanency goal
where<span style="mso-spacerun: yes;"> </span>it heard extensive testimony regarding
the child’s emotional state and best interests,</span></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Isayah R., 189 A.D.3d 1942 (3d Dept.,2021)
respondent was the mother of a child (born in 2010) who had special needs. In
May 2016, petitioner commenced a neglect proceeding against respondent,
alleging that she was unable to provide appropriate supervision for the child
due to ongoing substance abuse issues. The child was removed from respondent’s
care in June 2016 and resided in a therapeutic foster home since that time. In
May 2019 – at respondent’s request – psychologist Claude Schleuderer conducted
a psychological evaluation of respondent, the child and the foster parents,
after which he issued a report opining that “the best long-term solution [for
the child was] ... an [o]pen [a]doption.” In connection with Schleuderer’s
findings, petitioner filed a permanency report seeking to change the child’s
permanency goal from reunification with respondent to placement for adoption.
Following a permanency hearing, Family Court granted petitioner’s request,
finding that “[a] permanency plan of placement for adoption” was in the child’s
best interests. The Appellate Division agreed with<span style="mso-spacerun: yes;"> </span>with respondent that Family Court failed to
conduct an age-appropriate consultation with the child prior to changing the
permanency goal (see Family Ct. Act § 1089[d] ), but concluded that reversal
was unnecessary in these circumstances. Pursuant to Family Ct. Act § 1089(d),
Family Court must undertake an “age appropriate consultation with the child.”
Although the statute does not require a personal consultation with the child,
it does obligate the court to find “some age-appropriate means of ascertaining
[the child’s] wishes.” Although Family Court did not speak with the child or
directly ascertain his wishes, it heard extensive testimony from Schleuderer
regarding the child’s emotional state and best interests, as well as his
opinion about respondent’s ability to handle the child’s special needs.
Schleuderer’s evaluation report, which was admitted into evidence during the
hearing, noted the child’s feelings about his foster care placement and
connection to the foster parents and emphasized that transferring the child to
respondent’s care would be detrimental to the child’s long-term functioning.
During the permanency hearing, the attorney for the child conveyed the child’s
feelings about the “uncertainty of his future,” and one of the foster parents
recounted certain questions the child had asked her in which he indicated his
feelings about being adopted. Under these circumstances, the court’s failure to
consult with the child or directly ascertain his wishes did not warrant
reversal.</span></span></b></p>
<p class="MsoNormal"><b><u><span style="font-size: 11pt;"><span style="font-family: arial;">February 16, 2021<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Second Department</span></span></u></b></p>
<h1><span style="font-family: arial;"><a name="_Toc63926563"><b><span style="color: red; font-size: 11pt;">Since the court declined to sign the defendant’s prior order to show
cause, the defendant’s prior motion was neither made nor determined. A notice
for discovery and inspection is palpably improper if it is overbroad,
burdensome, fails to specify with reasonable particularity many of the
documents demanded, or seeks irrelevant or confidential information</span></b></a><b><span style="color: red; font-size: 11pt;"><o:p></o:p></span></b></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Lombardi v Lombardi, --- N.Y.S.3d ----, 2021 WL 262287, 2021 N.Y. Slip Op.
00426) the defendant filed an order to show cause seeking, inter alia, that the
Supreme Court direct service of his motion, and pursuant to CPLR 3103(a) for a
protective order striking the plaintiff’s notice for discovery and inspection.
The court declined to sign the order to show cause. The defendant then moved,
inter alia, for leave to reargue his prior motion, and, as additional relief,
an order of preclusion pursuant to CPLR 3126 precluding plaintiff from offering
certain evidence at trial. Supreme Court denied defendant’s motion for leave to
reargue on the grounds that it was untimely and that the court did not
misapprehend any facts. The court denied the remaining branches of the
defendant’s motion. The Appellate Division held that the court should have
considered, on the merits, the defendant’s motion for a protective order. Since
the court declined to sign the defendant’s prior order to show cause, the
defendant’s prior motion was neither made (see CPLR 2211) nor determined (see
CPLR 2221[d][2]). Thus, there was no need for the defendant to seek leave to
reargue the prior motion, and the court erred by, in effect, denying those
branches of the defendant’s motion which were for a protective order and to
impose sanctions on the ground that the defendant’s motion did not comply with
CPLR 2221(d)(2) and (3).</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division observed that CPLR 3101(a)
requires, in pertinent part, “full disclosure of all matter material and
necessary in the prosecution or defense of an action.” However, “[a] party is
not entitled to unlimited, uncontrolled, unfettered disclosure.” The Supreme
Court may issue a protective order striking a notice for discovery and
inspection that is palpably improper (see CPLR 3101[a]. A notice for discovery
and inspection is palpably improper if it is overbroad, burdensome, fails to
specify with reasonable particularity many of the documents demanded, or seeks
irrelevant or confidential information. Where the discovery demand is
overbroad, the appropriate remedy is to vacate the entire demand rather than to
prune it. It found that the plaintiff’s notice for discovery and inspection was
palpably improper in that it was overbroad and burdensome, sought irrelevant or
confidential information, and failed to specify with reasonable particularity
many of the documents demanded. Defendant’s motion which was pursuant to CPLR
3103(a) for a protective order striking the plaintiff’s notice for discovery
and inspection should have been granted.</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that Supreme Court
providently exercised its discretion in denying defendant’s motion pursuant to
CPLR 3126 to preclude the plaintiff from offering certain evidence at trial.
The defendant failed to make a clear showing that any failure to comply with
court-ordered discovery was willful and contumacious.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11pt;"><span style="mso-spacerun: yes;"> </span></span></b><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1><span style="font-family: arial;"><a name="_Toc63926564"><b><span style="color: red; font-size: 11pt;">Plenary action required to seek to set aside the stipulation of
settlement, incorporated but not merged into the judgment of divorce unless
reformation is sought to conform the agreement with the intent of the parties,
or where the matrimonial action is still pending and not terminated with entry
of a judgment, or in certain circumstances where enforcement of child support
is sought.</span></b></a></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Jagassar v Deonarine, --- N.Y.S.3d ----, 2021 WL
359472, 2021 N.Y. Slip Op. 00549 (2d Dept.,2021) a judgment of divorce, which
incorporated but did not merge the parties stipulation of settlement, was
entered on May 19, 2015. In March 2018, the defendant moved, inter alia, to
enforce certain provisions of the parties’ stipulation of settlement. The
plaintiff opposed the motion, arguing that the stipulation of settlement was
unconscionable, and cross-moved to vacate the stipulation of settlement. The
Supreme Court vacated the provisions of the stipulation of settlement
concerning equitable distribution and maintenance without a hearing on the
ground that those provisions “shock[ed] the conscience.” The court also denied
the defendant’s enforcement motion. The Appellate Division reversed and
remitted for a new determination. It held that under the circumstances
presented here, a plenary action was required to seek to set aside the
stipulation of settlement, which was incorporated but not merged into the
judgment of divorce. There are exceptions to this general rule, such as where
reformation of a separation agreement is sought to conform the agreement with
the intent of the parties, or where the matrimonial action is still pending and
was not terminated with entry of a judgment, or in certain circumstances where
enforcement of child support is sought (see Barany v. Barany, 71 A.D.3d 613).
None of these exceptions were applicable here.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1><span style="font-family: arial;"><a name="_Toc63926565"><b><span style="color: red; font-size: 11pt;">As Family Ct Act § 580–706[e] does not specify how the tribunal shall
notify the nonregistering party of the registration of a foreign support order
CPLR 2103, governing the service of papers, is applicable</span></b></a><span style="mso-bookmark: _Toc63926565;"><b><span style="font-size: 11pt;">.</span></b></span></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Laczko v Szoca, 2021 WL 359336 (2d
Dept.,2021) the petitioner, filed a petition in the Family Court, in 2019, to
vacate the registration of an order of support from a Hungarian court which had
been registered by the respondent in the Family Court in 2015 pursuant to the
Convention on the International Recovery of Child Support and Other Forms of
Family Maintenance (the Convention). The Support Magistrate, dismissed the
petition as untimely. The Appellate Division affirmed. It observed that a party
contesting a registered Convention support order shall file a contest not later
than thirty days after notice of the registration, but if the contesting party
does not reside in the United States, the contest must be filed not later than
sixty days after notice of the registration” (Family Ct Act § 580–707[b]). “If
the nonregistering party fails to contest the registered Convention support
order by the time specified ... the order is enforceable” (Family Ct Act §
580–707[c]).<span style="mso-spacerun: yes;"> </span>Pursuant to Family Court
Act article 5–B, “a foreign support order may be registered in this state by
sending” certain enumerated “records to the appropriate tribunal in this state”
(Family Ct Act § 580–602[a]; see Family Ct Act § 580–706[a]).” The tribunal
shall promptly notify the parties of the registration” (Family Ct Act §
580–706[e]). It held that as the Family Court Act does not specify how the
tribunal shall notify the nonregistering party of the registration of the
foreign support order the provisions of CPLR 2103, governing the service of
papers, are applicable. Pursuant to CPLR 2103(b)(2), “service by mail shall be
complete upon mailing; where a period of time prescribed by law is measured
from the service of a paper and service is by mail, five days shall be added to
the prescribed period”. The petition to vacate the registration of the
Hungarian support order was filed almost four years after the petitioner had
been served with the notice of registration. The petitioner did not dispute
that the notice of registration had been sent in 2015 to the address at which
he received mail in New York at that time, and as such, there was a rebuttable
presumption that he received the notice in 2015. The petitioner’s mere denial
of receipt was insufficient to rebut the presumption of receipt. Thus, the
Family Court properly denied the petitioner’s objection to the order, which
dismissed his petition to vacate the registration of the Hungarian order as
untimely (see Family Ct Act § 580–707[b]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Fourth Department</span></span></u></b></p>
<h1><span style="font-family: arial;"><a name="_Toc63926566"><b><span style="color: red; font-size: 11pt;">Dismissal of enforcement proceeding reversed where Court did not
consider the statutory factors and allow the parties to submit information
regarding these factors before determining that New York is an inconvenient
forum (DRL § 76-f [2]).</span></b></a></span></h1>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Henshaw v Hildebrand, --- N.Y.S.3d ----, 2021 WL 404851, 2021 N.Y. Slip Op.
00653 (4<sup>th</sup> Dept., 2021) the Appellate Division agreed with the
father that the court erred in granting the motion to dismiss the enforcement
petition on the ground that the State of Texas was the appropriate forum. The
issue of inconvenient forum dismissal is addressed to Family Court’s discretion
after consideration of the statutory factors (Domestic Relations Law § 76-f
[2]). The court is required to consider the statutory factors and allow the
parties to submit information regarding these factors before determining that New
York is an inconvenient forum”. Here, the court failed to permit the father to
submit information concerning the statutory factors, and the record did not
indicate whether the court considered them; thus, the court erred insofar as it
granted the motion on that basis. In any event, it concluded that the court
erred in granting the motion inasmuch as the mother submitted no evidence in
support of the motion and failed to specify any statutory or other legal basis
for the requested relief. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1><span style="font-family: arial;"><b><span style="font-size: 11pt;"><span style="mso-spacerun: yes;"> </span></span></b><a name="_Toc63926567"><b><span style="color: red; font-size: 11pt;">Where matter
“involves an uncomplicated disposition or simple judgment for a sum of money
which speaks for itself,” the judgment may be entered by the clerk</span></b></a><b><span style="color: red; font-size: 11pt;"> </span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Jolley v Lando, --- N.Y.S.3d ----, 2021 WL 405216,
2021 N.Y. Slip Op. 00679 </span></span></b><b><span style="font-size: 11pt;"><span style="font-family: arial;">(4<sup>th</sup>
Dept.,2021) the Appellate Division observed that CPLR 5016 (c) provides that a
“[j]udgment upon the decision of a court or a referee to determine shall be
entered by the clerk as directed therein. When relief other than for money or
costs only is granted, the court or referee shall, on motion, determine the
form of the judgment.” Where a matter “involves an uncomplicated disposition or
simple judgment for a sum of money which speaks for itself,” the judgment may
be entered by the clerk without prior submission to the court (Funk v Barry, 89
NY2d 364, 367 [1996]). As the prior order did not direct any party to settle or
submit a judgment to the court, a judgment could be entered by the clerk
without prior submission to the court. In addition, the second ordering
paragraph of the prior order provided that defendant “shall pay to [p]laintiff
the sum of $238,670 for equitable distribution pertaining to the Lindley, New
York property; said money to be paid within 30 days.” That was simple directive
for payment of a sum of money which speaks for itself, and thus a judgment on
that amount could be entered by the clerk.</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<h1><span style="font-family: arial;"><a name="_Toc63926568"><b><span style="color: red; font-size: 11pt;">Under certain circumstances, the court may order an upward
modification of child support retroactive to a date prior to the filing of the
modification petition but they did not apply</span></b></a><span style="mso-bookmark: _Toc63926568;"></span><b><span style="font-size: 11pt;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></b></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Oneida County DSS on behalf of Christman v
Bleau, --- N.Y.S.3d ----, 2021 WL 405796 (Mem), 2021 N.Y. Slip Op. 00763 (4<sup>th</sup>
Dept., 2021) although the Appellate Division agreed with petitioner that, under
certain circumstances, the court may order an upward modification of child
support retroactive to a date prior to the filing of the modification petition
(citing Matter of Oneida County Dept. of Social Servs. v Abu-Zamaq, 177 AD3d
1412, 1413 [4th Dept 2019]; Matter of Department of Social Servs. v Douglas D.,
226 AD2d 633, 634 [2d Dept 1996]; Matter of Monroe County Dept. of Social
Servs. v Campbell, 161 AD2d 1176, 1177 [4th Dept 1990]; see also Family Ct Act
§ 451), petitioner failed to present sufficient evidence supporting an upward
modification retroactive to a date earlier than that ordered by the Support
Magistrate. Moreover, contrary to petitioner’s contention, Family Court Act §
449 (2) did not permit the court to direct that the child support modification
be retroactive to the date the father was released from incarceration under the
circumstances of this case.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Family Court</span></span></u></b><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span></span></span></b></p>
<h1><span style="font-family: arial;"><a name="_Toc63926569"><b><span style="color: red; font-size: 11pt;">Family Court Act §1091 motion by youth to return to foster care
denied where child failed to show a compelling reason to order his return to
foster care.</span></b></a><b><span style="color: red; font-size: 11pt;"><o:p></o:p></span></b></span></h1>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of K.U., 135 N.Y.S.3d 803 (Family Court, 2021) the Family Court denied
the motion of the youth to return to foster care. It observed that Family Court
Act §1091, states that “a motion to return a former foster care youth under the
age of twenty-one, who was discharged from foster care due to a failure to
consent to continuation of placement if there is a compelling reason for such
former foster care youth to return to foster care”. It applies to any youth
under 21 who has been in foster care, who left foster care because they did not
consent to remain there, and now wants to return to foster care. Matter of
Jefry H., 102 A.D.3d 132, 138, 955 N.Y.S.2d 90 (2nd Dept. 2012) concerned a
youth who had been adjudicated a Person in Need of Supervision under FCA
Article 7. The Court overturned the trial court’s denial of the youth’s motion
to re-enter foster care after finding that the youth was a “former foster care
youth” within the meaning of FCA § 1091. The Court noted that the legislature’s
intent in creating article 10-B of the Family Court Act did not restrict the
reentry of youths to only child protective proceedings. A motion made pursuant
to this section must show by affidavit or other evidence that: (1) the former
foster care youth has no reasonable alternative to foster care; (2) the former
foster care youth consents to enrollment in and attendance at an appropriate
educational or vocational program ;(3) re-entry into foster care is in the best
interests of the former foster care youth; and (4) the former foster care youth
consents to the re-entry into foster care.” The Court found that K.U. failed to
show a compelling reason to order his return to foster care. He was
incarcerated at Rikers Island, facing several felony charges as an adult.
K.U.’s criminal defense attorney acknowledged that the jurist in the criminal
case was not granting K.U. youthful offender status. The Court did not have any
have information that K.U. could even be released from jail if it ordered his
return to foster care. Nor did the Court have information before it that a
residential treatment program is the actual plan for K.U. Thus, there was no
“compelling reason” to return to foster care placement within the meaning of
Family Court Act § 1091. It distinguished Jefry H. in that there the youth
presented facts that led the Court to conclude that there was a compelling
reason for him to return to foster care: the youth had no place to live and no
means of support.</span><o:p></o:p></span></b></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-61949534412166428332021-02-03T08:31:00.001-05:002021-02-03T08:31:09.808-05:00Recent Decisions and Legislation February 1, 2021<p><span style="font-family: arial;"><b> </b></span></p><p class="MsoNormal"><b><u><span style="font-size: 11.0pt;"><span style="font-family: arial;">February 1, 2021<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><strong><span style="color: black; font-size: 11pt;"></span></strong><strong><span style="font-size: 11pt;"><o:p></o:p></span></strong></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><br /></p>
<p class="MsoNormal"><span style="font-size: 11pt;"><span style="font-family: arial;"><b><span style="color: red;">Appellate Divison affirms
Charging Lien based upon account stated where no objection to invoices during
year long representation</span><o:p></o:p></b></span></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Trafelet v Cipolla & Co., LLC, --- N.Y.S.3d ----, 2021
WL 189200, 2021 N.Y. Slip Op. 00274 (1<sup>st</sup> Dept.,2021) the Appellate
Division affirmed an order which granted Buchanan Ingersoll & Rooney PC’s
motion to fix the amount of its charging lien against plaintiff based upon an
account stated, Nonparty respondent Buchanan Ingersoll & Rooney PC (BIR)
submitted proof that it entered into a retainer agreement with plaintiff and
sent her regular invoices to which she did not object during the course of the
firm’s year-long engagement. Her subsequent counsel’s vague and noncommittal
statement in court questioning the propriety of BIR’s bills was insufficient to
constitute timely objection to BIR’s account stated claim.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, Second Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11.0pt;">Spouse seeking
to set aside postnuptial agreement bears the burden to establish a fact-based,
particularized inequality. Motion to set aside an agreement between spouses may
be denied without a hearing if the agreement is fair on its face</span></b><b><span style="font-size: 11.0pt;">.<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Hershkowitz v Levy, --- N.Y.S.3d ----, 2021 WL 191304, 2021 N.Y. Slip Op. 00299
(2d Dept.,2021) an action for a divorce<span style="mso-spacerun: yes;">
</span>the Appellate Division affirmed Supreme Court’s determination to deny
defendant’s motion to set aside the postnuptial agreement on the grounds of
unconscionability, overreaching, breach of fiduciary duty, fraud, and lack of
consideration.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>The Appellate Division held that
a<span style="mso-spacerun: yes;"> </span>spouse seeking to set aside a
postnuptial agreement initially bears the burden to establish a fact-based,
particularized inequality. Where this initial burden is satisfied, a proponent
of a postnuptial agreement suffers the shift in burden to disprove fraud or
overreaching.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division noted that postnuptial agreements
are contracts which require consideration. Contrary to the defendant’s
contention, the parties’ postnuptial agreement did not lack consideration. Both
parties gave up rights to the other’s compensation in exchange for keeping
their own. Both parties waived their right to maintenance from the other party.
As such, the defendant’s contention that the postnuptial agreement should be set
aside for lack of consideration also failed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that a motion to set aside an
agreement between spouses may be denied without a hearing if the agreement is
fair on its face. Here, as the postnuptial agreement was fair on its face and
free from any fraud or overreaching, no hearing was necessary prior to ruling
on the defendant’s motion.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Emancipation is
automatic when child enters<span style="mso-spacerun: yes;"> </span>military
service<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Beck v
Beck, --- N.Y.S.3d ----, 2021 WL 125068, 2021 N.Y. Slip Op. 00222 (3<sup> </sup><span style="mso-spacerun: yes;"> </span>Dept, 2021) the Appellate Division held that a
child is deemed emancipated if he or<span style="mso-spacerun: yes;"> </span>she
enters the military service. Emancipation is automatic when the child enters
the<span style="mso-spacerun: yes;"> </span>military service.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">To prevail claim
of ineffective assistance of counsel, appellant must demonstrate absence of
strategic or other legitimate explanations’ for counsel’s alleged shortcomings.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Cook v Sierra, --- N.Y.S.3d
----, 2021 WL 115878 (Mem), 2021 N.Y. Slip Op. 00170(2d Dept.,2021) the
Appellate Division held that the father was<span style="mso-spacerun: yes;">
</span>not deprived of the effective assistance of counsel. The statutory right
to counsel under Family Court Act § 262 affords protections equivalent to the
constitutional standard of effective assistance of counsel afforded to
defendants in criminal proceedings. An attorney representing a client is
entitled to make ‘strategic and tactical decisions concerning the conduct of
trials. What constitutes effective assistance is not and cannot be fixed with
precision, but varies according to the particular circumstances of each case.
(Matter of Adam M.M. [Sophia M.], 179 A.D.3d at 802, quoting People v. Rivera,
71 N.Y.2d 705, 708,). To prevail on a claim of ineffective assistance of
counsel, it is incumbent on the appellant to demonstrate the absence of
strategic or other legitimate explanations’ for counsel’s alleged shortcomings.
Here, the father failed to establish the absence of strategic or other
legitimate explanations for his counsel’s alleged shortcomings.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></span></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Sound and
substantial basis is standard of review FCA § 1028(a) application for the
return of a child<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In
Matter of Iven J.E., 2021 WL 191255 (2d Dept.,2021) the Appellate Division held
that an application pursuant to Family Court Act § 1028(a) for the return of a
child who has been temporarily removed shall be granted unless the court finds
that ‘the return presents an imminent risk to the child’s life or health. In
making its determination, the court must weigh, in the factual setting before
it, whether the imminent risk to the child can be mitigated by reasonable
efforts to avoid removal. Ultimately, the Family Court must balance that risk
against the harm removal might bring, and it must determine factually which
course is in the child’s best interests. On appeal, the Court must assess
whether the record provides a sound and substantial basis to support the Family
Court’s determination.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Factors to be
considered in computing Counsel Fee award under FCA §438<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Abizadeh v Abizadeh, --- N.Y.S.3d ----, 2021 WL 191276
(Mem), 2021 N.Y. Slip Op. 00308 (2d Dept.,2012) the Appellate Division affirmed
an order which denied the fathers application for counsel fees in this family
court child support proceeding. It held :”The factors to be considered in
computing an appropriate award include the parties’ ability to pay, the merits
of the parties’ positions, the nature and extent of the services rendered, the
complexity of the issues involved, and the reasonableness of counsel’s
performance and the fees under the circumstances.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, Third Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Jurisdiction of
Neglect Proceedings including ICPC proceedings is governed by the UCCJEA<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of Diana XX v
Nicole YY, --- N.Y.S.3d ----, 2021 WL 202709, 2021 N.Y. Slip Op. 00352(3d
Dept.,2021) the Appellate Division held that jurisdiction over a neglect
proceeding does not depend upon the situs of the neglect. Jurisdiction is
governed by the UCCJEA. The UCCJEA vests Family Court with jurisdiction over
neglect proceedings when, inter alia,, New York “is the home state of the child
on the date of the commencement of the proceeding, or was the home state of the
child within six months before the commencement of the proceeding and the child
is absent from this state but a parent or person acting as a parent continues
to live in this state” (Domestic Relations Law § 76[1][a]). Under the UCCJEA,
the “home state” is defined as “the state in which [the] child lived with a
parent or a person acting as a parent for at least six consecutive months
immediately before the commencement” of the proceeding (Domestic Relations Law
§ 75–a [7] ).<span style="mso-spacerun: yes;"> </span>Here, despite the absence
of a hearing or evidence on the matter, there was no dispute that the children
and their respective parents/custodian had lived in New York for at least six
consecutive months prior to the April 2019 commencement of the neglect
proceeding in Tennessee, thereby making New York the children’s home state (see
Domestic Relations Law §§ 75–a [7]; 76[1][a] ).Thus, pursuant to the UCCJEA,
Family Court had jurisdiction over the neglect proceeding commenced in
Tennessee (see Domestic Relations Law § 76[1][a] ). Family Court, however, had
the discretion to decline jurisdiction if it determined – upon consideration of
eight statutorily-enumerated factors – that it was “an inconvenient forum under
the circumstances and that a court of another state [was] a more appropriate
forum” (Domestic Relations Law § 76–f [1], [2] ).(Domestic Relations Law § 76–f
[2][a]-[h] ). <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division found that Family Court did not
engage in the requisite consideration of the statutory factors before declining
to accept jurisdiction from the Tennessee court. It reviewed the record and
found that Family Court improperly declined to accept jurisdiction from
Tennessee. It further found that Family Court erred in vacating a December 2019
amended order of custody and dismissing both of petitioner’s Family Ct Act
article 6 petitions.<span style="mso-spacerun: yes;"> </span>Family Court did so
without conducting a hearing or taking evidence on the issues and erroneously
relied upon hearsay statements made by DSS regarding a purported ICPC report.
Inasmuch as Family Court did not afford petitioner adequate notice and
opportunity to be heard on the matters, Family Court’s vacatur of the December
2019 amended order and dismissal of the petitions raised serious due process
concerns and, therefore, had to be reversed.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><strong><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><strong><u><span style="color: black; font-size: 11pt;">January
16, 2021</span></u></strong><strong><u><span style="font-size: 11pt;"><o:p></o:p></span></u></strong></span></p>
<p class="MsoNormal" style="background: white;"><strong><u><span style="font-size: 11pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></strong></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='color:red;
mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='color:red;mso-ansi-language:EN-CA'><span style='mso-element:
field-end'></span></span><![endif]--><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Extreme Hardship established by disbarred attorney despite proof of
his former lavish lifestyle where expenditures were funded by disability
payments which came to an undisputed end<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In
Palmer v Spadone-Palmer --- N.Y.S.3d ----, 2021 WL 96220 (1<sup>st</sup>
Dept.,2020) the Appellate Division observed that an<span style="mso-spacerun: yes;"> </span>order or judgment incorporating an agreement
providing for maintenance will not be modified without a showing of extreme
hardship (see Domestic Relations Law § 236[B][9][b][1]). Here, the court
properly found that the husband would suffer extreme hardship if held to the
maintenance obligations under the settlement agreement. The wife’s primary
argument was that the husband’s claims of extreme hardship were undermined by the
proof of his lavish lifestyle, including significant discretionary expenditures
for himself and his then-girlfriend. The wife made a compelling presentation
that the husband liberally indulged in this regard, but did not show reason to
question that, as the trial court observed, the expenditures were funded by
disability payments he received from April 2015 through March 2017, a source of
funding that came to an undisputed end. As the court recognized, the husband’s
reckless spending of these amounts was unjustifiable, and should have been used
towards the support of his wife and children. However, most relevant to the
hardship analysis, because these payments came to an end, they were not
illustrative of the husband’s overall financial situation, which considerably
worsened from where it had been at the time of the settlement agreement. The
wife argued the husband did not make good faith efforts to seek new employment
after termination from Matlin Patterson, but ignored by virtue of his guilty
plea, he was disbarred and precluded from possessing any financial series
licenses for 10 years, and his options were accordingly limited.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Award of <span style="mso-spacerun: yes;"> </span>interim counsel fees vacated where <span style="mso-spacerun: yes;"> </span>award was not intended for defendant to “carry
on or defend the action or proceeding,” but as a form of sanction against the
husband<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Kass v Machles, --- N.Y.S.3d ----, 2021 WL
54901 (Mem), 2021 N.Y. Slip Op. 00089 (1<sup>st</sup> Dept.,2021) Supreme
Court, inter alia,<span style="mso-spacerun: yes;"> </span>confirmed the report
of the Special Referee to the extent of adjudging plaintiff in civil contempt
for his failure to comply with the subpoena at issue, and awarded defendant
counsel fee. The Appellate Division vacated the adjudication of contempt and
the interim counsel fee award. Defendant’s motion seeking to hold plaintiff in
contempt was not referred to the Referee, and, accordingly, the Referee’s
finding on that issue was not a proper basis for the court’s adjudication of
contempt against plaintiff. The court’s subsequent nunc pro tunc order
referring the contempt motion to the Referee to hear and report was
insufficient to cure the jurisdictional defect. To find otherwise would
impermissibly obviate the statutory requirements of the CPLR. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division vacated the award of interim
counsel fees under Domestic Relations Law § 237(a) since the award was not
intended for defendant to “carry on or defend the action or proceeding,” but as
a form of sanction against the husband, without any consideration by the court
of the parties’ respective financial circumstances.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, Second Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">In considering<span style="mso-spacerun: yes;"> </span>whether grandparent visitation is in the
children’s best interests, a number of factors are considered, including the
attorney for the children’s assessment and the children’s wishes<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='mso-ansi-language:
EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Sandra R v Matthew R., 2020 WL 7775398 (3d Dept.,2020) the Appellate
Division, Third Department reiterated the rule that in determining a
grandparent visitation application<span style="mso-spacerun: yes;">
</span>Family Court is required to undertake a two-part inquiry. First, the
court must find that the grandmother has standing to seek visitation. Once
standing is established, then the court must determine if visitation with the
grandmother is in the best interests of the children. In considering<span style="mso-spacerun: yes;"> </span>whether visitation is in the children’s best
interests, a number of factors are considered, including the nature and extent
of the existing relationship between the grandparent and children, the basis
and reasonableness of the parent’s objections, the grandparent’s nurturing
skills and attitude toward the parents, the attorney for the children’s
assessment and the children’s wishes (Matter of Susan II. v. Laura JJ., 176
AD3d 1325, 1327 [2019]. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Causes of action
to set aside agreement on grounds of fraud, and on grounds of duress, coercion,
or overreaching sustained<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Heinemann v Heinemann, 2020 WL 7760324 (2d Dept.,2020)
an action to set aside a separation agreement the Appellate Division affirmed
an order which denied defendants cross motion to dismiss the complaint on the
ground of fraud. The defendant failed to conclusively demonstrate that the
plaintiff had no cognizable cause of action alleging fraud. The elements of a
cause of action sounding in fraud are a material misrepresentation of an
existing fact, made with knowledge of the falsity, an intent to induce reliance
thereon, justifiable reliance upon the misrepresentation, and damages. The
complaint alleged that the plaintiff was represented in the divorce action by
an attorney selected and paid for by the defendant, and that the plaintiff was
advised by his attorney that he could request a change to only one provision in
the stipulation. The complaint further alleged that after the plaintiff signed
the stipulation, the defendant made material changes to various provisions
governing, inter alia, maintenance, child support, custody, and parental
access, and that the stipulation filed with the court was not the same
stipulation that he had signed. The complaint also alleged that the plaintiff
did not receive “any final divorce documents” from his attorney, and that he
did not learn of the changes made to the stipulation by the defendant until
after the defendant commenced an enforcement proceeding in the Family Court.
The plaintiff attached to the complaint a copy of the stipulation he claimed to
have signed. Under these circumstances, it agreed with the court’s
determination to deny the motion to dismiss the first cause of action, seeking
to set aside the stipulation on the ground of fraud.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division also agreed with the Supreme
Court’s determination to deny the defendant’s cross motion to dismiss the third
cause of action, seeking to set aside the stipulation on the grounds of duress,
coercion, or overreaching. A contract is voidable on the ground of duress when
it is established that the party making the claim was forced to agree to it by
means of a wrongful threat precluding the exercise of his or her free will. To
rescind a separation agreement on the ground of overreaching, a plaintiff must
demonstrate both overreaching and unfairness. No actual fraud need be shown,
for relief will be granted if the settlement is manifestly unfair to a spouse
because of the other’s overreaching in its execution. Courts may examine the
terms of the agreement as well as the surrounding circumstances to ascertain
whether there has been overreaching. However, generally, if the execution of
the agreement is fair, no further inquiry will be made. The allegations in the
complaint that the defendant threatened the plaintiff that he would never see
the children again if he did not agree to her proposed terms, that the
defendant had the plaintiff arrested and threatened to pay his bail only if he
agreed to her proposed terms, and that the defendant exercised her position of
financial superiority to the plaintiff’s disadvantage were sufficient to allege
a cognizable cause of action alleging duress, coercion, or overreaching.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11.0pt;">In a paternity
proceeding, personal jurisdiction over a nonresident putative father may be
established pursuant to Family Court Act § 580-201</span></b><b><span style="font-size: 11.0pt;">.<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In Matter of Joyce M.M v Robert J.G, 187
A.D.3d 1610, 134 N.Y.S.3d 121, 2020 N.Y. Slip Op. 05616 (4<sup>th</sup>
Dept.,2020) Petitioner, the maternal grandmother and custodian of the<span style="mso-spacerun: yes;"> </span>child, filed a petition for paternity seeking
a determination that respondent was the biological father of the child and
alleging, inter alia, that respondent had sexual intercourse with the mother at
the time of the child’s conception. The Court granted the motion of Respondent,
a resident of North Carolina, to dismiss the petition the grounds that Family
Court lacked personal jurisdiction over him. The Appellate Division held that
the court erred in granting respondent’s motion based upon Family Court Act §
519, which was enacted to provide exceptions to the common-law rule that
paternity proceedings customarily abate upon the unavailability of the putative
father. It does not prevent personal jurisdiction from being established over
an available party. In a paternity proceeding, personal jurisdiction over a
nonresident putative father may be established pursuant to Family Court Act §
580-201. Petitioner, however, admittedly failed to allege in her petition that
respondent engaged in sexual intercourse with the mother in New York State at
the time of conception, or that he had any other relevant ties to New York
State, and no other grounds for jurisdiction apply (see Family Ct. Act §
580-201 [6], [8]). Under the circumstances of this case, the court should have
granted the motion on the alternative ground that petitioner failed to state a
cause of action predicated upon respondent’s sexual intercourse with the mother
in New York State. Inasmuch as such a dismissal is not on the merits, however,
it held that the petition should be dismissed without prejudice and modified
the order accordingly.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><strong><u><span style="font-size: 11pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></strong></p>
<p class="MsoNormal" style="background: white;"><strong><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><strong><u><span style="color: black; font-size: 11pt;">January
1, 2021</span></u></strong><strong><u><span style="font-size: 11pt;"><o:p></o:p></span></u></strong></span></p>
<p class="MsoNormal" style="background: white;"><strong><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><span style="font-family: arial;"><b><a name="_Hlk60387337"></a><a name="_Hlk58576224"></a><span style="mso-bookmark: _Hlk60387337;"><span style="background: white; color: #7b8c89;"></span></span><a href="http://www.nysdivorce.com/"><span style="mso-bookmark: _Hlk60387337;"><span style="background: white; color: red; font-size: 11.0pt;">All recent Second Circuit
and Circuit Courts of Appeal Hague Convention International Child abduction
cases decided during 2020 are now posted on our website current through January
1, 2121</span></span></a><span style="mso-bookmark: _Hlk60387337;"><u><span style="background: white; color: red; font-size: 11pt;"> (Click on link to visit nysdivorce.com and scroll down)</span></u></span><span style="mso-bookmark: _Hlk60387337;"><u><span style="color: red; font-size: 11.0pt;"><o:p></o:p></span></u></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><span style="mso-bookmark: _Hlk60387337;"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><span style="mso-bookmark: _Hlk60387337;"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><span style="mso-bookmark: _Hlk60387337;"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Laws of 2020<o:p></o:p></span></span></u></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><span style="mso-bookmark: _Hlk60387337;"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt; text-align: justify; text-justify: inter-ideograph;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Laws
of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to
require reason for recusal <o:p></o:p></span></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt; text-align: justify; text-justify: inter-ideograph;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt; text-align: justify; text-justify: inter-ideograph;"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="font-size: 11.0pt;">Laws of
2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to add a new
section 9. It provides that any </span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">judge who recuses himself<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;">
</span>herself<span style="mso-spacerun: yes;"> </span>from</span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> <span style="color: black; mso-themecolor: text1;">sitting<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;">
</span>or<span style="mso-spacerun: yes;"> </span>taking<span style="mso-spacerun: yes;"> </span>any<span style="mso-spacerun: yes;">
</span>part<span style="mso-spacerun: yes;"> </span>in the decision of an
action, claim,</span> <span style="color: black; mso-themecolor: text1;"><span style="mso-spacerun: yes;"> </span>matter, motion or proceeding </span>must state
<span style="color: black; mso-themecolor: text1;">the reason for<span style="mso-spacerun: yes;"> </span></span>the<span style="color: black; mso-themecolor: text1;"><span style="mso-spacerun: yes;"> </span>recusal</span> <span style="color: black; mso-themecolor: text1;"><span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;">
</span>writing<span style="mso-spacerun: yes;"> </span>or on the record</span>.
However, a judge is not required to provide a reason for <span style="color: black; mso-themecolor: text1;">recusal when the reason may result</span>
<span style="color: black; mso-themecolor: text1;"><span style="mso-spacerun: yes;"> </span>in embarrassment, or is of a personal nature,
affecting the judge<span style="mso-spacerun: yes;"> </span>or<span style="mso-spacerun: yes;"> </span>a</span> <span style="color: black; mso-themecolor: text1;"><span style="mso-spacerun: yes;"> </span>person<span style="mso-spacerun: yes;"> </span>related to the judge within the sixth degree
by consanguinity or</span> <span style="color: black; mso-themecolor: text1;"><span style="mso-spacerun: yes;"> </span>affinity.<o:p></o:p></span></span></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><span style="mso-bookmark: _Hlk60387337;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: red; font-size: 11.0pt;">Laws
of 2020 , Ch 346 </span><span style="color: red;">amended </span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: red; font-size: 11.0pt;">Family
Court Act §1055 (e)</span><span style="color: red;"> and </span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">Family Court Act §1091<o:p></o:p></span></b></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk60387337;"><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><u><o:p></o:p></u></b></span></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">Under existing law, young
adults can return to foster care when they</span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"> </span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">have no alternative and agree to participate
in a vocational or educational program, upon the approval of the Family Court. <o:p></o:p></span></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;">Family Court Act §1055 (e)<span style="mso-spacerun: yes;"> </span>was amended by Laws of 2020, Ch 346,
effective December 15, 2020 to add a subdivision (ii) to </span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">allow a former foster care
youth to re-enter the foster care system without having to file a motion with
the family court during the state of emergency declared pursuant to executive
order 202 of 2020 in response to</span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"> </span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">the novel coronavirus (COVID-19) pandemic.
The commissioner of the local</span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"> </span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">social services department is required to consider the
same factors that the court is required to consider when determining the
appropriateness of the former foster care youth reentering the foster care
system. Any requirement to enroll in vocational or education program when a
former foster care youth reenters the system is<span style="mso-spacerun: yes;">
</span>waived during the time of the state of emergency. This section clarifies
that to the extent a former foster care youth is denied the request to return
to the custody of the local commissioner of social services, or other board or
department authorized to receive children as public charges, that the youth
would still have the opportunity to file a motion as authorized pursuant to
family court act 1092. (See 2020 NY Legis Memo 346)<o:p></o:p></span></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="mso-bookmark: _Hlk60387337;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Family Court Act §1091<o:p></o:p></span></span></u></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">The opening paragraph of
Family Court Act §1091 was amended </span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-themecolor: text1;">by
Laws of 2020, Ch 346, effective December 15, 2020 </span></b></span><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;">to add a provision which
requires that during the state of emergency declared pursuant to executive
order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic that
former foster care youth can re-enter the foster care system without making a
motion to the court, and that any requirement to enroll and<o:p></o:p></span></b></span></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;">attend an educational or
vocational program will be waived for the dura-<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><span style="mso-bookmark: _Hlk60387337;"><b><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: arial;">tion of the state of
emergency. This section also clarifies, subsequent to former foster youth's
return to placement without making a motion, as authorized under this section
during the COVID-19 state of emergency, that nothing in this section would
prohibit a local social service district from filing a motion for requisite
findings needed to claim reimbursement under Title IV-E of the Federal Social
Security Act to support the youth's care, and the family court shall hear and
determine such motions. (See 2020 NY Legis Memo 346)<o:p></o:p></span></span></b></span></p>
<span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk60387337;"></span>
</b></span><p class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;"><b><span style="color: blue; font-size: 10pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="tab-stops: 0in .5in 1.0in 1.5in 2.0in 2.5in 3.0in 3.5in 4.0in 4.5in 5.0in 5.5in 6.0in 467.95pt;"><span style="color: red;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal" style="background: white;"><strong><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First
Department<o:p></o:p></span></span></u></strong></p>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Joint legal custody not appropriate where one parent has been
responsible for major decisions about the child with little input or interest
from the other<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><strong><span style="color: red; font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Markis L v Jacquelyn C, --- N.Y.S.3d ----, 2020 WL 7391510 (Mem), 2020 N.Y.
Slip Op. 07672 (1<sup>st</sup> Dept.,2020) the Appellate Division affirmed on
order which modified the 2007 custody award to the mother to award the father
sole legal custody. It held that joint legal custody is not appropriate where
the parties are unable to coparent, or where one parent has been responsible
for major decisions about the child with little input or interest from the
other (Matter of Johanna Del C.T. v. Gregorio A.L., 178 A.D.3d 430, 431, 111
N.Y.S.3d 175 [1st Dept. 2019]). The father credibly testified that the mother
never sought to discuss the child’s education or medical care with him, she was
increasingly incapable of meeting even the child’s basic needs without his
assistance or assistance by the maternal grandmother, and that she sometimes
lashed out at him, including physically. The father also credibly testified
that he continued to encourage the child to spend time with the mother. The
mother admitted that the father had been responsible for the child’s medical
care for the past year, could not recall the address of the child’s school or
the names of her teachers, and denied the impact of her mental illness on the
child. Under these circumstances, the award of sole legal custody to the father
had a sound and substantial basis in the record.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal" style="background: white;"><a name="_Hlk58397686"><strong><u><span style="color: red; font-size: 11pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></strong></a></p>
<p class="MsoNormal" style="background: white;"><span style="mso-bookmark: _Hlk58397686;"><strong><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate
Division, Second Department<o:p></o:p></span></span></u></strong></span></p>
<p class="MsoNormal" style="background: white;"><span style="mso-bookmark: _Hlk58397686;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></span></p>
<p class="MsoNormal" style="background: white;"><span style="mso-bookmark: _Hlk58397686;"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-family: arial;"><span style="color: red; font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span>Circumstances of contemporary daily
interactions between men and women, warrants that the “opportunity” element of
proof of adultery must be interpreted to mean more that mere “proximity,” but
must instead necessarily mean “proximity plus.”</span><strong><span style="color: red;"><o:p></o:p></span></strong></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk58397686;"></span><!--[if supportFields]><span
style='mso-bookmark:_Hlk58397686'></span><span style='mso-element:field-begin'></span><span
style='mso-bookmark:_Hlk58397686'><span lang=EN-CA style='font-family:"Times New Roman",serif;
mso-ansi-language:EN-CA'><span style='mso-spacerun:yes'> </span>SEQ CHAPTER \h
\r 1</span></span><![endif]--><span style="mso-bookmark: _Hlk58397686;"></span><!--[if supportFields]><span
style='mso-bookmark:_Hlk58397686'></span><span style='mso-element:field-end'></span><![endif]--><span style="mso-bookmark: _Hlk58397686;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Agulnick v Agulnick, --- N.Y.S.3d ----, 2020 WL 7234017, 2020 N.Y. Slip Op.
07335) the parties were married in 2004. The husband commenced an action for
divorce on October 3, 2018, alleging an irretrievable breakdown of the
marriage. The verified amended answer contained a counterclaim for divorce on
the ground of adultery under Domestic Relations Law § 170(4). The counterclaim
alleged that from approximately March of 2014 and thereafter the husband openly
engaged in an adulterous relationship with R.L., who slept in the marital home,
vacationed with the husband in Florida, resided with him in another marital
home in Florida, and accompanied him at social settings. The counterclaim
alleged that the husband’s activities included sexual intercourse and was
without the wife’s consent, connivance, privity, or procurement. The husband
denied all allegations of adulterous behavior in a reply dated February 1,
2019.The husband moved, inter alia, for summary judgment dismissing that
counterclaim under CPLR 3212. In support, the husband proffered an affidavit in
which he stated that he “never engaged in a sexual relationship of any kind or
nature with” R.L., who he identified by full name in the papers as the family
babysitter. The husband further averred that the presence of R.L. in the
parties’ homes was “at all times ... in a professional working capacity,
approved and initiated by [the wife], wherein [R.L.] supervises our children.”
The motion was also supported by an affidavit of R.L., where she identified
herself as the babysitter and caretaker of the parties’ children, and stated
that she “never engaged in a sexual relationship of any kind or nature with”
the husband, and that “[a]ny and all times I have been in the [husband]’s
presence have been in a professional working capacity wherein I supervises
[sic] the parties’ children.” In opposition, the wife asserted in an affidavit
that the husband has “shown an inclination and desire to commit adultery” by
virtue of events that had admittedly occurred over a decade earlier. She also
stated that the husband had the opportunity to commit adultery, as R.L. had
vacationed with him during the marriage, spent a night at the marital residence
and at a vacation home while the husband was present, and accompanied the
husband at social functions. In reply, the husband and R.L. each provided
affidavits in further support of summary judgment dismissing the adultery counterclaim.
Both averred that R.L.’s overnight stays at the marital homes and on vacation
were always in a babysitter capacity with the children present, that R.L. slept
in a room at the marital home assigned to her by the wife, and that R.L. always
attended any social events in a babysitter capacity with the wife and children
present. Supreme Court denied the husband’s motion for summary judgment
dismissing the adultery counterclaim. The court determined that the husband’s
various submissions denying a sexual relationship with R.L. were “conclusory
and self-serving,” and, failed to meet his prima facie burden on summary
judgment. <o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division reversed.<span style="mso-spacerun: yes;"> </span>Justice
Dillon noted that allegations of adultery present unique issues of proof. The
conduct is oftentimes clandestine and out of public view, and proving it in
such instances must depend upon circumstantial evidence. Recognizing this,
decisional authority has held that adultery may be circumstantially proven by
means of a three-part test consisting of (1) a lascivious desire, and (2) the
opportunity to gratify the desire, and (3) acting upon the desire. Other
authorities similarly summarize the three-part test as involving inclination,
opportunity, and intent. The act itself must also meet the requirements of
Domestic Relations Law § 170(4), which defines adultery “as the commission of
an act of sexual intercourse, [or other] sexual conduct, voluntarily performed
by [a spouse], with a person other than the [other spouse] after the [spouses’]
marriage.” The case law that exists regarding adultery is restricted to trial
judgments and appeals for much of the past century and more.<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Court observed that the circumstantial evidence elements for adultery,
consisting of lascivious desire, opportunity, and intent, date back to a time
when women were not as routinely present in workplaces as they are now.
Currently, men and women work side-by-side at the great majority of workplaces.
They work in the same locations, attend meetings, share lunch rooms,
participate in professional events, interact in social, political, religious,
and charitable activities, exercise at gyms, and fly on airplanes together to
faraway seminars and business trips. In addition, certain employees may reside
at their employers’ homes including au pairs, household help, and home aides.
The Court held that under the circumstances of contemporary daily interactions
between men and women, the “opportunity” for infidelity cannot be interpreted
to mean mere “proximity,” but must instead necessarily mean “proximity plus.”
The “plus” need not be objective or irrefutable evidence. Instead, it may be
facts or evidence from which reasonable inferences may be drawn, beyond the
mere proximity of two people themselves. Proximity may be evidence sufficient
to defeat summary judgment if accompanied by something more, such as, a hotel
receipt for two, plane tickets for two to a particular destination deviating
from the norm, potentially incriminating or suspicious e-mails or other
writings, frequent get-togethers in non-professional settings, flirtatious
behavior, or a suspicious conversation overheard by a witness. Such facts or
evidence, beyond the mere temporal proximity of two persons, may permit an
inference that a party’s “acts are more consistent with guilt than with
innocence” (Trumpet v. Trumpet, 215 N.Y.S.2d 921, 924 [Sup. Ct., Kings County]
), and warrant the denial of summary judgment sought by the party accused of
adulterous behavior.<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Court found that the husband met his prima facie burden of establishing his
entitlement to summary judgment dismissing the wife’s counterclaim alleging
adultery (see Westervelt v. Westervelt, 26 N.Y.2d 865, 309 N.Y.S.2d 604, 258
N.E.2d 98 [two persons living together in one-family household and their social
appearances together is insufficient circumstantial evidence to establish
adultery]. In his affidavit, the husband stated that he “never engaged in a
sexual relationship of any kind or nature with” R.L, and that R.L.’s presence
in his various homes was “at all times ... in a professional working capacity.”
Although the husband’s affidavit failed to address conduct alleged with R.L.
while on vacation and at social events, R.L.’s affidavit, proffered by the
husband in support of his motion, did address such conduct. R.L. identified
herself in her affidavit as the babysitter for the parties’ children, denied “a
sexual relationship of any kind or nature” with the husband, and states that
she was in a professional working capacity at “[a]ny and all times ... in the
[husband]’s presence.” R.L.’s affidavit is more expansive and all-encompassing
than the husband’s affidavit to the extent that her denial of sexual conduct at
“any and all times” necessarily extends beyond the husband’s homes to other
settings, such as any vacation trip taken by members of the family and social
occasions that R.L. attended. As to all of those occasions, R.L. explained that
she was present to supervise the parties’ children and that she performed that
job during those occasions. The court disagreed with the Supreme Court that the
husband’s evidence in support of summary judgment dismissing the adultery
counterclaim was conclusory and self-serving. The husband’s affidavit and
R.L.’s separate affidavit contained specific averments which, read together,
corroborate each other and satisfy his prima facie burden<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Court rejected the husbands argument that the wife’s affidavit should not be
considered in opposition to summary judgment dismissing the adultery
counterclaim. Because CPLR 4502(a) statutorily disqualifies a spouse from
testifying against the other spouse in an action grounded upon adultery, except
to prove the marriage, disprove the adultery, or disprove the defense after evidence
has been introduced tending to prove such defense (see CPLR 4502[a]). The Court
held that contrary to the husband’s contentions, the wife’s affidavit in
opposition to summary judgment may be properly considered, and had been
considered, as it was submitted to oppose the husband’s own evidence that the
adultery with R.L. had never occurred (cf. Tallent v. Tallent, 22 A.D.2d 988,
989, 254 N.Y.S.2d 722).<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk58397686;"><b><span style="color: red; font-size: 11.0pt;">In absence of custody decision setting forth
findings of fact and reasoning, appropriate scope of appellate review is de
novo where record sufficient to permit review</span></b></span><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p></o:p></span></b></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In<span style="mso-spacerun: yes;"> </span>Matter of
Hreat v Hreat,--- N.Y.S.3d ----, 2020 WL 7379701 (Mem), 2020 N.Y. Slip Op.
07572 (2d Dept.,2020) a custody matter,<span style="mso-spacerun: yes;">
</span>the Appellate Division held that findings of the hearing court<span style="mso-spacerun: yes;"> </span>which have a sound and substantial basis in
the record are generally entitled to great deference on appeal. However,
inherent in the proposition that a reviewing court will give deference to the
findings made by the hearing court is that the hearing court issued either a
written or oral decision setting forth its findings of fact and conclusions of
law. (CPLR 4213[b]). In the absence of a decision, orally or in writing,
setting forth the findings of fact and reasoning for the Supreme Court’s determination,
the appropriate scope of appellate review is de novo where the record is
sufficiently complete to permit such review (see Matter of Newton v. McFarlane,
174 A.D.3d at 79, 103 N.Y.S.3d 445).<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Due diligence requirement of CPLR 308(4)
must be strictly observed, given the reduced likelihood that a summons served
pursuant to that section will be received<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Matter of Ferrera v Serrano, --- N.Y.S.3d ----, 2020 WL 7379716, 2020 N.Y. Slip
Op. 07567 (2d Dept.,2020) the father filed a petition for custody of the
subject child for the purpose of obtaining an order, inter alia, making
specific findings so as to enable the child to petition the United States
Citizenship and Immigration Services for special immigrant juvenile status (
SIJS) pursuant to 8 USC § 1101(a)(27)(J). Thereafter, the father moved for the
issuance of an order making the requisite declaration and specific findings so
as to enable the child to petition for SIJS. Along with the petition, the
father submitted affidavits of service attesting that, after three unsuccessful
attempts to serve the mother at a residence in Honduras, the “affix and mail”
method of service was utilized (see CPLR 308[4]). However, since the process
server had not attested to any efforts he had made to verify that the address
at which service was attempted was, in fact, the mother’s residence, the Family
Court twice adjourned the matter to allow the father time to verify the
mother’s address. As of the final adjourned date, the father had not submitted
any further information or an updated affidavit of service. The court dismissed
the petition without prejudice and<span style="mso-spacerun: yes;">
</span>denied the father’s motion for the issuance of an order, inter alia,
making the requested specific findings so as to enable the child to petition
for SIJS.<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division affirmed. It noted that if<span style="mso-spacerun: yes;">
</span>service cannot be effected, with due diligence, pursuant to CPLR 308(1)
or (2), a party may serve process by affixing the summons and petition to the
door of the recipient’s “actual place of business, dwelling place or usual
place of abode,” and by mailing them either to the last known residence or
actual place of business (CPLR 308[4]; see also Domestic Relations Law § 75–g;
CPLR 313). The due diligence requirement of CPLR 308(4) must be strictly observed,
given the reduced likelihood that a summons served pursuant to that section
will be received. It held that here, , where the father listed the mother’s
address as “unknown” on the petition and testified at a hearing that he had no
information about the mother’s whereabouts since the parties had separated 13
or 14 years earlier, the process server’s three attempts to serve process at an
address in Honduras, without attesting to any efforts to verify that this was
the mother’s address, did not constitute due diligence.<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Court not required to inquire into his
expenses on indigents application for assigned counsel<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Alphonse v Alphonse, --- N.Y.S.3d ----, 2020 WL 7233597, 2020 N.Y. Slip Op.
07374 (2d Dept.,2020) the Appellate Division held that where a party has the
right to the assistance of counsel (see Family Ct. Act § 262[a][v]) and
requests counsel on the grounds of indigence the court must make an inquiry to
determine whether the party is eligible for court-appointed counsel. Here, the
court properly inquired as to the father’s eligibility for court-appointed
counsel and instructed the father to submit certain documentation, including a
form detailing his financial circumstances. While the father listed his weekly
income on this form as $1,820, he failed to indicate on the form whether he
provided financial support to any other individuals, or any of his expenses,
aside from his monthly mortgage payments. As a result, the father failed to
fully and timely make the disclosure necessary to support his claim of
indigence. Contrary to the father’s contention, the court was not required to
inquire any further into his expenses, and it agreed with its determination
that he was not financially eligible for court-appointed counsel.<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate Division, Third Department<o:p></o:p></span></span></u></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk58397686;"><a name="_Hlk60207949"><b><span style="color: red; font-size: 11.0pt;">Sentence of
commitment<span style="mso-spacerun: yes;"> </span>may only continue until such
time as the offender complies with the support order</span></b></a></span><span style="mso-bookmark: _Hlk58397686;"><span style="mso-bookmark: _Hlk60207949;"><b><span style="font-size: 11.0pt;">. <o:p></o:p></span></b></span></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><span style="mso-bookmark: _Hlk60207949;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk58397686;"><span style="mso-bookmark: _Hlk60207949;"></span></span><!--[if supportFields]><span
style='mso-bookmark:_Hlk58397686'><span style='mso-bookmark:_Hlk60207949'></span></span><span
style='mso-element:field-begin'></span><span style='mso-bookmark:_Hlk58397686'><span
style='mso-bookmark:_Hlk60207949'><b><span lang=EN-CA style='font-size:11.0pt;
mso-ansi-language:EN-CA'><span style='mso-spacerun:yes'> </span>SEQ CHAPTER \h
\r 1</span></b></span></span><![endif]--><span style="mso-bookmark: _Hlk58397686;"><span style="mso-bookmark: _Hlk60207949;"></span></span><!--[if supportFields]><span
style='mso-bookmark:_Hlk58397686'><span style='mso-bookmark:_Hlk60207949'></span></span><span
style='mso-element:field-end'></span><![endif]--><span style="mso-bookmark: _Hlk58397686;"><span style="mso-bookmark: _Hlk60207949;"></span></span><span style="mso-bookmark: _Hlk58397686;"><span style="mso-bookmark: _Hlk60207949;"><span style="font-size: 11.0pt;"><span style="mso-tab-count: 1;"> </span>In
Matter of Rondeau v Jerome --- N.Y.S.3d ----, 2020 WL 7647902 (Mem), 2020 N.Y.
Slip Op. 07960 (3d Dept.,2020) the Appellate Division held that Family Court
abused its discretion by imposing a 90–day jail sentence for the father’s
willful violation of a support order where the father presented payment at the
hearing for the full amount of arrears owed.<span style="mso-spacerun: yes;">
</span>Where a willful violation has been found, Family Court may “commit the
respondent to jail for a term not to exceed six months. (Family Ct Act §
454[3][a] ). Such a sentence is in the nature of a civil contempt, which may
only continue until such time as the offender, if it is within his or her
power, complies with the support order. As the father presented payment at the
hearing for the full amount of arrears owed Family Court abused its discretion
when it issued the order of commitment<o:p></o:p></span></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk58397686;"><span style="mso-bookmark: _Hlk60207949;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></span></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-4773161493026260832020-12-22T17:33:00.002-05:002021-01-01T10:48:31.914-05:00Recent Decisions and Legislation December 16, 2020 <p></p><p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><span style="color: black; font-size: 11.0pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;"> <b style="mso-bidi-font-weight: normal;">Circumstances
of contemporary daily interactions between men and women, warrants that the
“opportunity” element of proof of adultery must be interpreted to mean more
that mere “proximity,” but must instead necessarily mean “proximity plus.”</b></span><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Agulnick v Agulnick, --- N.Y.S.3d ----, 2020 WL 7234017, 2020 N.Y. Slip Op.
07335) the parties were married in 2004. The husband commenced an action for
divorce on October 3, 2018, alleging an irretrievable breakdown of the
marriage. The verified amended answer contained a counterclaim for divorce on
the ground of adultery under Domestic Relations Law § 170(4). The counterclaim
alleged that from approximately March of 2014 and thereafter the husband openly
engaged in an adulterous relationship with R.L., who slept in the marital home,
vacationed with the husband in Florida, resided with him in another marital
home in Florida, and accompanied him at social settings. The counterclaim
alleged that the husband’s activities included sexual intercourse and was without
the wife’s consent, connivance, privity, or procurement. The husband denied all
allegations of adulterous behavior in a reply dated February 1, 2019.The
husband moved, inter alia, for summary judgment dismissing that counterclaim
under CPLR 3212. In support, the husband proffered an affidavit in which he
stated that he “never engaged in a sexual relationship of any kind or nature
with” R.L., who he identified by full name in the papers as the family
babysitter. The husband further averred that the presence of R.L. in the
parties’ homes was “at all times ... in a professional working capacity,
approved and initiated by [the wife], wherein [R.L.] supervises our children.”
The motion was also supported by an affidavit of R.L., where she identified
herself as the babysitter and caretaker of the parties’ children, and stated
that she “never engaged in a sexual relationship of any kind or nature with”
the husband, and that “[a]ny and all times I have been in the [husband]’s
presence have been in a professional working capacity wherein I supervises
[sic] the parties’ children.” In opposition, the wife asserted in an affidavit
that the husband has “shown an inclination and desire to commit adultery” by
virtue of events that had admittedly occurred over a decade earlier. She also
stated that the husband had the opportunity to commit adultery, as R.L. had
vacationed with him during the marriage, spent a night at the marital residence
and at a vacation home while the husband was present, and accompanied the
husband at social functions. In reply, the husband and R.L. each provided
affidavits in further support of summary judgment dismissing the adultery
counterclaim. Both averred that R.L.’s overnight stays at the marital homes and
on vacation were always in a babysitter capacity with the children present,
that R.L. slept in a room at the marital home assigned to her by the wife, and
that R.L. always attended any social events in a babysitter capacity with the
wife and children present. Supreme Court denied the husband’s motion for
summary judgment dismissing the adultery counterclaim. The court determined
that the husband’s various submissions denying a sexual relationship with R.L.
were “conclusory and self-serving,” and, failed to meet his prima facie burden
on summary judgment.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> The
Appellate Division reversed. Justice Dillon noted that allegations
of adultery present unique issues of proof. The conduct is oftentimes
clandestine and out of public view, and proving it in such instances must
depend upon circumstantial evidence. Recognizing this, decisional authority has
held that adultery may be circumstantially proven by means of a three-part test
consisting of (1) a lascivious desire, and (2) the opportunity to gratify the
desire, and (3) acting upon the desire. Other authorities similarly summarize
the three-part test as involving inclination, opportunity, and intent. The act
itself must also meet the requirements of Domestic Relations Law § 170(4),
which defines adultery “as the commission of an act of sexual intercourse, [or
other] sexual conduct, voluntarily performed by [a spouse], with a person other
than the [other spouse] after the [spouses’] marriage.” The case law that
exists regarding adultery is restricted to trial judgments and appeals for much
of the past century and more.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> The
Court observed that the circumstantial evidence elements for adultery,
consisting of lascivious desire, opportunity, and intent, date back to a time
when women were not as routinely present in workplaces as they are now.
Currently, men and women work side-by-side at the great majority of workplaces.
They work in the same locations, attend meetings, share lunch rooms,
participate in professional events, interact in social, political, religious,
and charitable activities, exercise at gyms, and fly on airplanes together to
faraway seminars and business trips. In addition, certain employees may reside
at their employers’ homes including au pairs, household help, and home aides.
The Court held that under the circumstances of contemporary daily interactions
between men and women, the “opportunity” for infidelity cannot be interpreted
to mean mere “proximity,” but must instead necessarily mean “proximity plus.”
The “plus” need not be objective or irrefutable evidence. Instead, it may be
facts or evidence from which reasonable inferences may be drawn, beyond the
mere proximity of two people themselves. Proximity may be evidence sufficient
to defeat summary judgment if accompanied by something more, such as, a hotel
receipt for two, plane tickets for two to a particular destination deviating
from the norm, potentially incriminating or suspicious e-mails or other
writings, frequent get-togethers in non-professional settings, flirtatious
behavior, or a suspicious conversation overheard by a witness. Such facts or
evidence, beyond the mere temporal proximity of two persons, may permit an
inference that a party’s “acts are more consistent with guilt than with
innocence” (Trumpet v. Trumpet, 215 N.Y.S.2d 921, 924 [Sup. Ct., Kings County]
), and warrant the denial of summary judgment sought by the party accused of
adulterous behavior.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> The
Court found that the husband met his prima facie burden of establishing his
entitlement to summary judgment dismissing the wife’s counterclaim alleging
adultery (see Westervelt v. Westervelt, 26 N.Y.2d 865, 309 N.Y.S.2d 604, 258
N.E.2d 98 [two persons living together in one-family household and their social
appearances together is insufficient circumstantial evidence to establish adultery].
In his affidavit, the husband stated that he “never engaged in a sexual
relationship of any kind or nature with” R.L, and that R.L.’s presence in his
various homes was “at all times ... in a professional working capacity.”
Although the husband’s affidavit failed to address conduct alleged with R.L.
while on vacation and at social events, R.L.’s affidavit, proffered by the
husband in support of his motion, did address such conduct. R.L. identified
herself in her affidavit as the babysitter for the parties’ children, denied “a
sexual relationship of any kind or nature” with the husband, and states that
she was in a professional working capacity at “[a]ny and all times ... in the
[husband]’s presence.” R.L.’s affidavit is more expansive and all-encompassing
than the husband’s affidavit to the extent that her denial of sexual conduct at
“any and all times” necessarily extends beyond the husband’s homes to other
settings, such as any vacation trip taken by members of the family and social
occasions that R.L. attended. As to all of those occasions, R.L. explained that
she was present to supervise the parties’ children and that she performed that
job during those occasions. The court disagreed with the Supreme Court that the
husband’s evidence in support of summary judgment dismissing the adultery
counterclaim was conclusory and self-serving. The husband’s affidavit and
R.L.’s separate affidavit contained specific averments which, read together,
corroborate each other and satisfy his prima facie burden</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">
</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> The
Court rejected the husbands argument that the wife’s affidavit should not be
considered in opposition to summary judgment dismissing the adultery
counterclaim. Because CPLR 4502(a) statutorily disqualifies a spouse from
testifying against the other spouse in an action grounded upon adultery, except
to prove the marriage, disprove the adultery, or disprove the defense after
evidence has been introduced tending to prove such defense (see CPLR 4502[a]).
The Court held that contrary to the husband’s contentions, the wife’s affidavit
in opposition to summary judgment may be properly considered, and had been
considered, as it was submitted to oppose the husband’s own evidence that the
adultery with R.L. had never occurred (cf. Tallent v. Tallent, 22 A.D.2d 988,
989, 254 N.Y.S.2d 722).</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Court not required to inquire into his expenses on
indigents application for assigned counsel</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Alphonse v Alphonse, --- N.Y.S.3d ----, 2020 WL 7233597, 2020 N.Y. Slip Op.
07374 (2d Dept.,2020) the Appellate Division held that where a party has the
right to the assistance of counsel (see Family Ct. Act § 262[a][v]) and
requests counsel on the grounds of indigence the court must make an inquiry to
determine whether the party is eligible for court-appointed counsel. Here, the
court properly inquired as to the father’s eligibility for court-appointed
counsel and instructed the father to submit certain documentation, including a
form detailing his financial circumstances. While the father listed his weekly
income on this form as $1,820, he failed to indicate on the form whether he
provided financial support to any other individuals, or any of his expenses,
aside from his monthly mortgage payments. As a result, the father failed to
fully and timely make the disclosure necessary to support his claim of
indigence. Contrary to the father’s contention, the court was not required to
inquire any further into his expenses, and it agreed with its determination
that he was not financially eligible for court-appointed counsel.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><span style="background: white; color: black; font-size: 11.0pt; letter-spacing: .6pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman";"> </span><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Laws of 2020</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 13.5pt; mso-fareast-font-family: "Times New Roman";"> </span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">Laws of 2020, Ch 261, effective November 11,
2020 amended domestic relations law § 240 (3)(a)(8) and (9),
domestic relations law § 252 (1) (h) and (i), family court act §
352.3 (1), family court act § 446 (i) and (j), family court act §
551 (j) and (k), family court act § 656 (j) and (k), family court
act § 759 (g), (h) and (i); family court act § 842 (j)
and (k). family court act § 1056 (1) (h) and (i), criminal procedure
law § 530.12 (1)(a) (7), criminal procedure law § 530.12, (5) (c)
and (e), and a new paragraph (f) was added, criminal procedure law § 530.13
(1)(c) and criminal procedure law § 530.13 (4)(c) and a
new paragraph (d) was added, to provide that an order of protection
can be issued that requires that the respondent refrain from controlling any
connected devices affecting the home, vehicle or property of the person
protected by the order. "Connected device",
means any device, or other physical object that is capable of connecting
to the internet, directly or indirectly, and that is assigned an
internet protocol address or bluetooth address.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><br />
<br style="mso-special-character: line-break;" />
<!--[if !supportLineBreakNewLine]--><br style="mso-special-character: line-break;" />
<!--[endif]--></span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">Laws
of 2020, Chapter 299 amended Family Court Act §§ 305.2 and 344.2
effective November 1, 2021, to require video recording of the
entirety of interrogations in all juvenile cases, including the provision of
Miranda warnings and the waiver, if any, of rights by the juveniles. It
requires that recording procedures be consistent with regulations to be
promulgated by the Division of Criminal Justice Services. It applies to
interrogations that take place in law enforcement facilities, which, pursuant
to Family Court Act § 305.2(4) and section 205.20 of the Uniform Rules of the
Family Court, must be in rooms that have been inspected and approved by the
Chief Administrator of the Courts for the questioning of youth. All persons in
the recording must be identifiable and the speech must be intelligible. As is
applicable to other statements by juveniles, the recording would be subject to
discovery pursuant to Family Court Act § 331.2. Further, like other factors in
juvenile delinquency Huntley hearings, including the presence or absence of
parents, location of questioning and the validity of any waiver of rights, the
fact and quality of the recording would be among factors comprising the
totality of circumstances affecting admissibility of accused juveniles'
statements. Failure to record would not, by itself, be a ground for granting a
suppression motion. (See NY Legis Memo 299)</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><span style="color: blue; font-size: 10.0pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman";"> </span><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Where presumption of neglect triggered under Family
Court Act § 1046(a)(iii), ACS not required to establish children
suffered actual harm or were at imminent risk of harm</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Jesse W, --- N.Y.S.3d ----, 2020 WL 7050359, 2020 N.Y. Slip Op. 07203
(2d Dept.,2020) the Appellate Division observed that pursuant to Family Court
Act § 1046(a)(iii), “proof that a person repeatedly misuses a drug or drugs or
alcoholic beverages, to the extent that it has or would ordinarily have the
effect of producing in the user thereof a substantial state of stupor,
unconsciousness, intoxication, hallucination, disorientation, or incompetence,
or a substantial impairment of judgment, or a substantial manifestation of
irrationality, shall be prima facie evidence that a child of ... such person is
a neglected child except that such drug or alcoholic beverage misuse shall not
be prima facie evidence of neglect when such person is voluntarily and
regularly participating in a recognized rehabilitative program”. In cases where
this presumption of neglect is triggered, the petitioner is not required to
establish that the child suffered actual harm or was at imminent risk of harm.
It concluded that the evidence supported the Family Court’s determination that
ACS met its burden of proving that the father neglected the subject children as
a result of his misuse of drugs. The evidence demonstrated that the father
regularly misused PCP and marijuana, that his misuse of drugs produced in him
“a substantial state of stupor, unconsciousness, intoxication, hallucination,
disorientation, or incompetence, or a substantial impairment of judgment, or a
substantial manifestation of irrationality,” and that he was not participating
in a drug rehabilitation program. Contrary to the father’s argument, because
this presumption of neglect was triggered under Family Court Act §
1046(a)(iii), ACS was not required to establish that the children suffered
actual harm or were at imminent risk of harm.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Grandparent visitation terminated where mother sought
to relocate with Child to Germany </span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Lisa AS v Ray AT, --- N.Y.S.3d ----, 2020 WL 7050365 (Mem), 2020 N.Y.
Slip Op. 07202(2d Dept.,2020) the Appellate Division affirmed an order which
terminated the supervised visitation with the child that had been awarded to
the maternal grandmother. The petition alleged that, since the entry of the
prior order of visitation, there had been a “change of circumstances” in that
the mother had been offered a promotion that necessitated that she relocates
with the child to Germany. The Appellate Division found that the mother
demonstrated that the move would result in the child gaining beneficial
opportunities, including not only those resulting from the mother’s increased
salary, but also those attendant to living in a foreign country, including
learning the language of that country. The child also expressed interest in the
opportunities afforded by the relocation with the mother to the foreign
country. In addition, the mother testified that her relationship with the
maternal grandmother had become “increasingly toxic” and that the maternal
grandmother’s recurring unfounded allegations against the mother to child protective
services had a negative impact on both the mother and the child.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Estranged grandmother committed Family Offense by
repeatedly approaching petitioner’s children to introduce herself
and surreptitiously delivering gifts and leaving notes despite petitioner’s
instruction to not contact her or her children.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Schade v Kupferman, --- N.Y.S.3d ----, 2020 WL 6930678 (Mem), 2020
N.Y. Slip Op. 07069 (2d Dept.,2020) petitioner commenced
a family offense proceeding against her estranged mother. She alleged that she
had clearly and unequivocally prohibited her from having any contact with her
or her children. The petitioner alleged that the appellant had been committing
acts constituting, inter alia, the crime of harassment in the second degree by
repeatedly contacting and attempting to contact the petitioner and the
petitioner’s children. The Appellate Division affirmed an order of the Family
Court which found that the appellant had engaged in conduct constituting a
family offense and issued an order of protection. It held that as relevant
here, a person commits the family offense of harassment in the second degree
when, with intent to harass, annoy, or alarm another person, he or she “engages
in a course of conduct or repeatedly commits acts which alarm or seriously
annoy such other person and which serve no legitimate purpose” (Penal Law §
240.26[3]). The appellant committed the family offense of harassment in the
second degree (Penal Law § 240.26[3]) by, among other things, repeatedly
approaching the petitioner’s young children to introduce herself as their
grandmother, and surreptitiously delivering gifts and leaving notes for the
children despite the petitioner’s clear instruction to not contact her or her
children.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Where parties fail to satisfy unambiguous agreement
mediation condition precedent before filing new custody petition failure to
satisfy condition precedent will result in dismissal of petition</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Jessica EE v Joshua EE, 2020 WL 6929323 (3d Dept.,2020) the parties
agreed to an order of custody that provided joint legal and physical custody of
the children, and further provided, as pertinent here, “that[,] should a
conflict arise between the parties regarding decision making and/or compliance
enforcement, modification or violation of any of the terms of this [o]rder[,]
the parties shall make a good faith effort to engage in mediation prior to
returning to court or filing any petitions.” In December 2018, the
mother filed a modification petition seeking primary residential and sole legal
custody of the children. The father moved to dismiss the petition, arguing,
inter alia, that the mother failed to satisfy the condition
precedent to mediate in good faith prior to filing the petition. Family Court
granted the motion. The Appellate Division held among other things that where
parties to an agreement are required to satisfy a condition precedent before
filing a new petition, and the agreement is unambiguous, failure to satisfy
that condition precedent will result in dismissal of the petition. Here, the
agreement was unambiguous. It rejected the mothers argument that she made a
good faith effort to engage in mediation with the father prior to filing the
petition.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Once father brought support payments
current order of commitment should not have been
issued </span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Dupis v Costello, --- N.Y.S.3d ----, 2020 WL 6929264 (Mem), 2020 N.Y.
Slip Op. 06992 (3d Dept.,2020) the Support Magistrate determined that the
father had willfully violated the support order, granted the mother a money
judgment for arrears, and recommended that the father be sentenced to a jail
term of 120 days, the sentence to be suspended so long as he complied with the
support order. By the time the father appeared before Family Court for a
confirmation hearing (see Family Ct Act § 439[e] ), he had paid all arrears and
had established a balance in his favor. Family Court issued an order of
commitment imposing a 120–day jail sentence and ordered that the sentence be
suspended so long as the father met his support obligations for a period of
three years. The Appellate Division reversed. It held that a jail sentence
imposed for a party’s civil contempt in failing to comply with an order, such
as the father’s willful failure to pay support as ordered, is not punitive and
only serves the remedial purpose of compelling compliance” with the order.
There was no remedial purpose to be served by continued confinement or the
threat thereof once the father had brought his support payments current
and the order of commitment should not have been issued because the father
had already complied completely with the underlying support order. Family Court
erred in suspending the sentence and was obliged to discharge it without condition.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Family Court lacked subject jurisdiction to issue the
order directing a forensic evaluation where no petition pending in court
between these parties</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> In
Matter of James R. v Jennifer S, --- N.Y.S.3d ----, 2020 WL 6929190, 2020 N.Y.
Slip Op. 06997(3d Dept.,2020) the parties settled custody and violation
petitions then pending in Family Court by stipulating to engage in family
counseling and to a protocol for the selection of a therapist. The transcript
of the stipulation of settlement was incorporated by reference into a consent
order entered in March 2019. Thereafter, the parties failed to agree on the
selection of a therapist, prompting the father to request that the court
appoint as a therapist a licensed psychiatrist versed in parental alienation.
After converting the father’s request to an application for a court-ordered
forensic evaluation, the court ordered a forensic evaluation over the mother’s objection.
The Appellate Division reversed. It held that Family Court lacked subject
jurisdiction to issue the order directing a forensic evaluation because the
March 2019 order on consent resolved all underlying petitions and, therefore,
at the time that Family Court issued the order, no petition was pending in
court between these parties. The filing of a petition to commence a proceeding
is mandatory and a precondition to the court obtaining jurisdiction (Family Ct.
Act § 154–a). Family Court is authorized to order a forensic evaluation of any
persons within its jurisdiction “[a]fter the filing of a petition under this
act over which [it] appears to have jurisdiction ... when such an examination
will serve the purposes of this act” (Family Ct. Act § 251[a]). Thus, the
Family Ct Act contemplates that, before Family Court can order a forensic
evaluation, a petition must have first been file<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="color: black; font-size: 13.5pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Court of Appeals holds that Domestic Relations
Law ' 111(1)(a), which generally requires the consent of an adoptive
child who is over 14 years old but gives the court discretion to dispense
with that consent permits a court to approve an adoption even absent the
consent of an adult adoptee.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Matter of Marian T., ‑‑‑ N.E.3d ‑‑‑‑, 2020 WL 6877600, 2020 N.Y. Slip Op. 06932
(2020) the issue in this adoption proceeding was whether the
adoption was categorically precluded because the adoptee, an adult woman with a
significant developmental disability, did not have the capacity to give her
consent. Marian T., a 66ByearBold woman, resided with petitioners. for
approximately 15 years. Marian had a profound intellectual disability that
resulted in significant developmental delays and limited verbal ability. Petitioners
operated a licensed Family Care home under the supervision of the New York
State Office for People with Developmental Disabilities, which oversees the
placement of individuals with severe intellectual disabilities in private
family homes where they may be properly cared for. Seeking to provide
permanency for Marian, who had no living relatives and had been in the State=s
custody since she was a child, petitioners commenced adoption proceeding in
August 2015. Mental Hygiene Legal Services (MHLS),appointed to represent Marian
in the proceedings, objected to the adoption on the ground that Marian=s
consent was required under DRL ' 111(1)(a), arguing that Marian
lacked the capacity to consent and that the statute permits a court to dispense
with adoptee consent only where the adoptee is a child between the ages of 14
and 17. Petitioners countered that, because the phrase adoptive child in
the statute includes adult adoptees and Marian was over the age of 14, the
court had the discretion to dispense with the consent requirement. That
questioned turned on the proper interpretation of Domestic Relations Law
(DRL) ' 111(1)(a), which generally requires the consent of an adoptive
child who is over 14 years old but gives the court discretion to dispense
with that consent. The Court of Appeals held that, in appropriate
circumstances, the statute permits a court to approve an adoption even absent
the consent of an adult adoptee. Because that discretion was not abused here
and there was record support for the affirmed best interests
finding, it affirmed the order which approved the adoption.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Contingency fee agreement held to be enforceable in
matrimonial action where underlying dispute related only to plaintiff=s alleged
breach of the confidentiality provision of a prior child support agreement</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Costa v Arandia & Arandia, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6877305 (Mem), 2020
N.Y. Slip Op. 06945(1<sup>st</sup> Dept.,2020) the Appellate Division held
that the motion court properly found the contingency fee agreement to be enforceable.
Duly agreed contingent fee arrangements are generally valid. Although there is
an exception to this rule where the fee is contingent upon the securing of
a divorce ... or is in any way determined by reference to the amount of
maintenance, support, equitable distribution, or property settlement (Rules
of Professional Conduct [22 NYCRR] ' 1200.0 rule 1.5[d][5][I]), this
exception did not apply here, as the underlying dispute related only
to plaintiff=s alleged breach of the confidentiality provision of a prior child
support agreement.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">The definition of unconscionable contract reveals two
major elements. The procedural element of unconscionability concerns the
contract formation process and the alleged lack of meaningful choice; the
substantive element looks to the content of the contract, per se.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Eicholz v Eicholz, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6602904, 2020 N.Y. Slip Op. 06500
(2d Dept.,2020) the plaintiff commenced an action to vacate the
parties= separation agreement and moved, among other things, for summary
judgment on the ground of unconscionability. The plaintiff argued that he did
not understand the terms of the separation agreement when he executed the
agreement because he was under the influence of psychotropic medication and the
effects of electro‑convulsive therapy, and that he signed the agreement without
legal representation and because the defendant had threatened to force him out
of the marital residence. Supreme Court granted plaintiff=s motion. The
Appellate Division reversed. It observed that in general, an unconscionable
contract has been defined as one which is so grossly unreasonable as to be
unenforceable because of an absence of meaningful choice on the part of one of
the parties together with contract terms which are unreasonably favorable to
the other party. This definition reveals two major elements which have been
labeled by commentators, procedural and substantive unconscionability. The
procedural element of unconscionability concerns the contract formation process
and the alleged lack of meaningful choice; the substantive element looks to the
content of the contract, per se. A reviewing court examining a challenge to a
separation agreement will view the agreement in its entirety and under the
totality of the circumstances. The Appellate Division found that
while the complaint adequately pleaded a cause of action, plaintiff
failed on the motion to demonstrate as a matter of law through medical records
or testimony from a doctor that his ability to understand the terms of the
separation agreement when he executed the agreement was impaired by medication
or prior treatment that he received. In addition, he failed to demonstrate,
prima facie, that the manner in which the defendant presented the separation
agreement to the plaintiff, along with the plaintiff=s lack of legal
representation and the lack of financial disclosure between the parties, served
to deprive the plaintiff of a meaningful choice in entering into the separation
agreement. Further, although the defendant was awarded a majority of the
marital assets under the agreement, the record did not contain sufficient
evidence demonstrating the value of most of these assets. Although the
plaintiff, who did not have an income when the agreement was executed, waived
his right in the separation agreement to maintenance from the defendant, who
made a significant salary, this waiver, by itself, was insufficient to
demonstrate that the agreement as a whole was unconscionable. A hearing was
warranted to determine the totality of the circumstances, including the extent
of the parties= assets and the circumstances surrounding the execution of
the separation agreement, and as such, summary judgment should have been
denied.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Criminal conviction may be given collateral estoppel
effect in a Family Court proceeding where (1) the identical issue has been
resolved, and (2) the defendant in the criminal action had a full and fair
opportunity to litigate the issue of his or her criminal conduct.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Brittani A, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601901, 2020 N.Y. Slip Op.
06523 (2d Dept.,2020) an abuse proceeding, the Appellate Division held that a
criminal conviction may be given collateral estoppel effect in a Family Court
proceeding where (1) the identical issue has been resolved, and (2) the
defendant in the criminal action had a full and fair opportunity to litigate
the issue of his or her criminal conduct. The mother=s convictions of attempted
murder in the second degree, attempted assault in the first degree, attempted
assault in the second degree, and endangering the welfare of a child were based
on the same acts alleged by DSS to constitute abuse in these proceedings.
Therefore, DSS established, prima facie, that the child was an abused child
pursuant to Family Court Act ' 1012(e)(ii).</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">While recoupment of overpayments of child support is
generally not permitted overpayments may be used to offset add‑on expenses,
such as educational expenses and unreimbursed medical expenses.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Matter of Collette v Collette, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6750542, 2020 N.Y.
Slip Op. 06778 (2d Dept.,2020) in 2011 a money judgment, of $14,935.33 was
entered against the father for child support arrears. In December 2018, the
father filed a petition seeking a determination that the money judgment had
been satisfied. In an order dated July 9, 2019, made after a hearing, a Support
Magistrate, inter alia, vacated the arrears set forth in the money judgment as
having already been satisfied, and directed the Support Collection Unit to stop
enforcing the money judgment, determined that the father was entitled to a
credit in the sum of $12,270.65 based on overpayments of child support, to be
applied to the father=s future child support payments or, in the alternative,
to his obligation to pay his pro rata share of unreimbursed medical expenses
and/or educational expenses. The Appellate Division affirmed in part. It agreed
with the Family Court=s determination but held that recoupment of child support
payments is only appropriate under limited circumstances not applicable here
(see Matter of McGovern v. McGovern, 148 A.D.3d at 902, 50 N.Y.S.3d 408; Rader
v. Rader, 54 A.D.3d at 920, 865 N.Y.S.2d 235; People ex rel. Breitstein v.
Aaronson, 3 A.D.3d 588, 589, 771 N.Y.S.2d 159). It held that the father was not
entitled to a credit against his future child support obligation based on prior
overpayments of child support. However, inasmuch as public policy does not
forbid offsetting add‑on expenses against an overpayment of child support, it
agreed with the Support Magistrate=s determination that the father may use the
overpayments to offset his share of add‑on expenses, such as educational
expenses and unreimbursed medical expenses.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Post Adoption contact agreement provision that it
would become void on violation of provision upheld</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Scott v Rhodes, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6750450 (Mem), 2020 N.Y.
Slip Op. 06797(2d Dept.,2020) the post‑adoption contact provisions of the
judicial surrender of the child provided that the biological
mother Amay not use any photographs or correspondence or information
regarding the child or the adoptive parents in any way on any form of social
media (e.g. Facebook, Twitter, etc.).@ It further provided that if the
biological mother failed to keep any of the conditions in the
agreement, Athen they all shall be null and void, effective at the time of
the first failure.@ The Appellate Division held that the mothers violation
of this provision rendered the post‑adoption contact agreement null and void
(see Matter of Sapphire W. [Mary W.CDebbie R.], 120 A.D.3d 1584, 1585, 992
N.Y.S.2d 599; Matter of Mya V.P. [Amber R.CLaura P.], 79 A.D.3d 1794, 1795, 913
N.Y.S.2d 477).</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Where parties have joint custody and there is a change
of residence, child support not modified where judgment not modified.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Listokin v Listokin, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601948, 2020 N.Y. Slip Op.
06516 (2d Dept.,2020) the judgment dated August 4, 2016, incorporated the terms
of a stipulation of settlement between them dated May 17, 2016. Pursuant to the
judgment, the parties were to have joint legal custody of their two children,
whose primary residence would be with the defendant, with the plaintiff to have
parental access to the children in accordance with the terms of the stipulation
of settlement. The plaintiff was obligated to pay substantial basic child
support to the defendant and the parties agreed that issues regarding child
support would be subject to the standard of review applicable to judgments
rather than contracts. On November 21, 2016, the plaintiff moved to suspend his
basic child support obligation and to direct the defendant to pay basic child
support to him, claiming that the children had taken up residence with him.
Supreme Court determined that because the children were residing with the
plaintiff, he had met his burden of establishing an unanticipated and
unreasonable change in circumstances to warrant a reduction or suspension of
his basic child support obligation. In an order dated May 31, 2018, the court,
inter alia, granted plaintiff=s motion which was to suspend his basic child
support obligation only to the extent of reducing that obligation to $5,586 per
month, and denied his motion to direct the defendant to make basic child
support payments to him. The Appellate Division affirmed. It held that he did
not establish a right to the suspension of his entire basic child support
obligation based upon his assertion that he was the Ade
facto@ custodial parent of the parties= children. Rather, the record
supported the conclusion that while the children chose to reside with the
plaintiff for a period of time, he did not petition the court to be the primary
physical custodian of the children, defendant never acquiesced in the
children=s relocation to the plaintiff=s residence, and the judgment of divorce
remained unchanged in designating the defendant as the custodial parent for
child support purposes. However, given the plaintiff=s evidence that the
children were spending much more time in his household than originally
contemplated in the stipulation of settlement, it agreed with the Supreme Court
that a reduction in the plaintiff=s basic child support obligation by crediting
him with the additional amounts he was expending for the children at his home
constituted a provident exercise of discretion and took into account the
practical realities and fluid nature of the parties= situation.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;"> Where Child Support retroactively modified to
date of petition pursuant to Family Ct Act ' 439[e] father entitled
to credit for payments in excess of reduced obligation between date
of filing of petition and order. </span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Merritt v Merritt, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601867, 2020 N.Y. Slip Op. 06529
(2d Dept.,2020) on December 10, 2015, after having become unemployed in April
2015, the father filed a petition for a downward modification of his support
obligation. By order entered September 23, 2016, after a hearing, the Support
Magistrate, inter alia, denied the father=s petition. By order dated December
13, 2016, the Family Court denied the objections. On the father=s ensuing
appeal the court reversed the December 13, 2016 order, determining that the
father had met his burden of showing that there has been a substantial change
in circumstances since the entry of the December 23, 2014 order. Upon remittitur,
in an amended order dated April 15, 2019, the Support Magistrate, after a
hearing, recalculated the father=s support obligation at a monthly sum of
$1,784. The Support Magistrate determined that the father was entitled to a
credit for his payments in excess of $1,784 for a period of 10 months, between
the filing of the underlying petition on December 10, 2015, and the October 5,
2016, effective date of an order dated February 27, 2017, which granted the
father=s later petition for a downward modification of his child support
obligations. The father filed objections. Family Court denied the father=s
objections. The Appellate Division affirmed. While the father was entitled to a
credit for payments in excess of his reduced obligation as determined by the Family
Court=s order (see Family Ct Act ' 439[e] ), construing the statute
according to its plain meaning, the credit could only be awarded for excess
payments made pursuant to the order which erroneously denied the father=s
petition for a downward modification of his support obligation. Here, the
father filed a new petition for a downward modification on October 5, 2016, and
that relief was granted by the Family Court in an order dated February 27,
2017, retroactive to the date of filing. As such, as of October 5, 2016, the
father=s child support obligation was no longer determined by the order entered
September 23, 2016, and, upon reversal of that order, there was no basis to
award him a credit for any further payments after October 5, 2016.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Motion to dismiss appeal for failure to settle
transcript may not be considered where first raised in the Brief of a Party</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Trataglia v Tartaglia, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6816607,
2020 N.Y. Slip Op. 06912(4<sup>th</sup> Dept.,2020) the Appellate
Division, inter alia, declined to address the father=s request, set forth in
his respondent=s brief, to dismiss the mother=s appeal. His request was based
on the father=s allegations in his brief that the mother failed to settle the
trial transcript pursuant to CPLR 5525 (c). It held that it may
not Aconsider a statement of fact appearing only in the brief of a party,
even if such statement [is] not disputed@ (Ditmars‑31= St. Dev. Corp.
v. Punia, 17 AD2d 357, 360 [2d Dept 1962]; see also People v. Alizadeh, 87 AD2d
418, 426 [1st Dept 1982]).</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Failure to comply with the statutory
requirement of Family Ct Act ' 1017 [1] to contact aunt
and inform her of right to seek to become a foster parent or obtain custody did
not require reversal where aunt not prejudiced.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Matter of Sandy L.S. v Onondaga County Department of Children and Family
Services, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6816598, 2020 N.Y. Slip Op. 06910 (4<sup>th</sup> Dept.,2020) the
child=s great aunt (aunt)Cappealed from an order in a proceeding pursuant to
Social Services Law ' 384‑b that, inter alia, terminated respondent
mother=s parental rights, authorized Onondaga County Department of Children and
Family Services (DCFS) to consent to the child=s adoption and ordered that the
preadoptive foster parents could petition to adopt the child. In appeal No. 2,
the aunt appealed from an order in a proceeding pursuant to Family Court Act
articles 6 and 10 that dismissed her petition seeking custody of the child. The
Appellate Division affirmed. It, inter alia, rejected the Aunts argument in
appeal No. 2, that DCFS did not comply with the statutory requirement to
contact her and inform her of her right to seek to become a foster parent or
otherwise obtain custody of the child (see Family Ct Act ' 1017 [1]),
and that she should therefore not be Apenalized@ for failing to seek
such relief within 12 months of foster care placement (see Family Ct
Act ' 1028‑a; Social Services Law ' 383 [3]). At all
relevant times, the aunt knew that the child had been placed in foster care,
and yet did not express any interest in seeking foster care placement or
custody of the child until two years after the child was born. Shortly after
the child was born, the aunt had declined to be considered a resource for the
child because she was already overwhelmed with caring for the child=s siblings.
Thus, even assuming, arguendo, that DCFS violated its statutory duty to inform
the aunt of her right to seek to become a foster parent or obtain custody of
the child, reversal was not required because the aunt was not prejudiced by
the error.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Support Magistrates findings cannot be confirmed
without compliance by the Court with 22 NYCRR 205.43</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
N. L., v. S.L., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6600121, 2020 N.Y. Slip Op. 06453 (1<sup>st</sup> Dept.,2020)
on or about March 20, 2012, the Family Court entered a child support order
which required that the father pay $7,600 per month in child support. On
December 5, 2012, the mother filed a violation petition, asserting that the
father had willfully violated the child support order, because he made no
support payments and no payments toward the arrears. A willfulness hearing
commenced on or about December 23, 2013. The mother=s petition was not decided
until nearly seven years later, on or about November 15, 2019. At
the conclusion of the violation proceeding, the Support Magistrate recommended
that the father be incarcerated for six months, and directed that the father
could purge his contempt and avoid incarceration by paying $84,000 by December
16, 2019. On December 16, 2019, the Support Magistrate referred the matter to a
Family Court judge to confirm the recommendation of incarceration. Later the
same day, however, the Family Court judge found that the father presented a
certified check for the recommended purge amount to the Support Collection Unit
and since the recommended purge amount had been paid, the matter was no longer
properly before him. The parties filed objections to the Support Magistrate=s
determinations. The mother objected, inter alia, to the recommended purge
amount as insufficient, and objected to the Support Magistrate=s failure to set
a payment schedule. Family Court denied both parties= objections. Family
Court found that the judge who had determined that the father had paid the
recommended purge amount had implicitly Aconfirmed@ the Support
Magistrate=s recommendation of incarceration and the purge amount of $84,000.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The
Appellate Division reversed. It found that the record failed to support the
Family Court=s conclusion that the purge amount recommended by the Support
Magistrate had been confirmed by the Family Court judge on December 16, 2019.
The Rules of the Family Court provide that:A[i]n a case heard by a support
magistrate, a Family Court judge may confirm the findings of the support
magistrate by adopting his or her findings and recommendations in whole or in
part. Alternatively, the Family Court judge may modify or refuse to confirm the
findings and recommendations and may refer the matter back to the support
magistrate for further proceedings. The court may, if necessary, conduct an
evidentiary hearing@ (22 NYCRR 205.43[i] ). The record contained no
written order confirming or rejecting the Support Magistrate=s recommendation.
Moreover, the transcript of the proceedings made clear that the court did not
adopt or modify the Support Magistrate=s findings and recommendations, in whole
or in part, or make new findings. It held that Family Court erred,
on February 3, 2020, when it denied the mother=s objections on the basis that
the court had confirmed the Support Magistrate=s recommendation of
incarceration and a purge amount. The Family Court Rules further provide that,
where a support magistrate makes a finding of willfulness, the findings of
fact Ashall@ include Aa recommendation, as appropriate,
regarding a specific dollar amount to be paid or a specific plan to repay the
arrears@ (22 NYCRR 205.43[g][4] ). The mother=s request for a payment plan
for the support arrears was properly before the court, as neither the Support
Magistrate nor the Family Court judge who previously presided over the matter
considered her request on the merits. The matter was remanded to a Family Court
judge for proceedings consistent with this decision.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><span style="color: black; font-size: 13.5pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman";"> </span><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Appellate Divison points out in dicta that courts
should not use any information from child , which has not been previously
mentioned and is adverse to either parent, without in some way checking on its
accuracy during the course of the open hearing</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Edwin E.R. v Monique A.-O, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6494185, 2020 N.Y. Slip
Op. 06347 (1<sup>st</sup> Dept.,2020) the Appellate Division reversed an
order , which, inter alia, modified a prior order of custody to grant sole
physical and legal custody of the child to petitioner father. It pointed out in
dicta that even if the Family Court had properly found that there was a change
of circumstances the record did not support the finding that the child lived
primarily with the grandmother. The court based its finding solely on an in
camera interview with the child, then eight years old, and the hearsay
testimony of the father. It noted that the Court of Appeals has admonished that
courts should Anot use any information, which has not been previously
mentioned and is adverse to either parent, without in some way checking on its
accuracy during the course of the open hearing,@ because Athere are
grave risks involved in these private interviews.(Matter of Lincoln v. Lincoln,
24 N.Y.2d 270, 273[1969]). This admonition was well taken in this case, where
the record provided a substantial basis for concluding that either or both
parents spoke to the child about the proceeding before his interview with the
court. Moreover, the father=s testimony could not serve either as an adequate
check on the accuracy of any of the child=s statements or an adequate
independent basis for the court’s finding, since it was pure hearsay. The
father did not claim to have any independent knowledge of where the child spent
his time, but testified that the grandmother had told him the child spent most
nights at her home. Moreover, the mother directly contradicted the father=s
testimony.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Supreme Courts’ subject matter jurisdiction over a
matrimonial matter does not end upon the death of one party where agreement
incorporated into judgment granted the court exclusive jurisdiction over the
enforcement of its provisions, which are governed by New York law.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><br clear="all" style="mso-special-character: line-break;" />
</span></b><span style="color: windowtext;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Perry v McMahan, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478507, 2020 N.Y. Slip Op.
06303(2d Dept.,2020) the parties 2009 stipulation which was incorporated but not
merged into their judgment of divorce obligated the husband to pay the wife
$30,000 per month in spousal maintenance, and stated that, in the event of the
husband=s death prior to the termination of the wife=s maintenance, the
husband=s estate would continue to make the maintenance payments. The agreement
also stated that it was to be governed by the laws of the State of New York,
and it was to be so‑ordered by the Supreme Court, which Ashall retain
exclusive jurisdiction to enforce the provisions of this Agreement.@ The
husband died on March 29, 2017, in Florida, and the plaintiff, who was the
personal representative of the husband=s estate, filed probate administration
pleadings in Florida. The maintenance payments to the wife ceased after the husband=s
death, and the wife moved in Supreme Court, inter alia, to enforce the
maintenance provisions of the agreement. In opposition, the plaintiff, among
other things, argued that the Florida courts had subject matter jurisdiction
and that the courts of New York no longer had subject matter jurisdiction. The
Appellate Division rejected plaintiff=s contentions that the court
lacked subject matter jurisdiction over the wife=s claims against the husband=s
estate for spousal maintenance and that the judgment was void for lack of
subject matter jurisdiction. It held that the wife was entitled to
judgment for arrears of spousal maintenance due as of September 1, 2017.
The court’s subject matter jurisdiction over a matrimonial matter
does not end upon the death of one party. Here, the agreement was binding on
the husband=s estate to continue maintenance payments to the wife after the
husband=s death, and granted the issuing court exclusive jurisdiction over the
enforcement of its provisions, which are governed by New York law. The Florida
statute relating to the enforcement of claims against an estate did not divest
the Supreme Court of subject matter jurisdiction to resolve this dispute over a
contract governed by New York law.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">The fact that the parties employed a nanny for a
period of time to assist with housekeeping and childcare responsibilities did
not require a reduction in the defendant=s distributive share of husbands
enhanced earning capacity</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Spinner v Spinner, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478477, 2020 N.Y. Slip Op. 06307
(2d Dept.,2020) the parties were married in 1998, and had two children. During
the course of the marriage, the plaintiff attended and graduated from medical
school, completed a five‑year residency in internal medicine and neurology, and
completed a clinical fellowship in neurophysiology. The plaintiff commenced
this action in April 2012. In 2017 Supreme Court, inter alia, awarded the
defendant a distributive share of the plaintiff=s enhanced earning capacity and
directed the plaintiff to pay (1) child support of $1,769.23 per week, (2) 92%
of the cost of the children=s extracurricular activities up to $15,000 per
year, and (3) 92% of the children=s college expenses.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The
Appellate Division held, inter alia, that although the plaintiff
commenced the action in April 2012, there was no evidence that his
income changed at any time between the commencement of the action and the end
of 2012. Therefore, Supreme Court providently exercised its
discretion in determining the value of the plaintiff=s enhanced earning
capacity based on his 2012 earnings. It agreed with the Supreme Court’s
determination that the defendant was entitled to a 25% share of the plaintiff=s
enhanced earning capacity from his medical education and training. The
plaintiff=s student loans were paid with marital funds, and the defendant made
substantial contributions by, inter alia, supporting his educational endeavors,
working from the time of the marriage in June 1998 until she started law school
in September 2001 and again from September 2008 until May 2011, contributing
her earnings to the family, being the primary caregiver of the
parties= two children, cooking family meals, and participating in housekeeping
responsibilities. The fact that the parties employed a nanny for a period of
time to assist with housekeeping and childcare responsibilities did not require
a reduction in the defendant=s distributive share of his enhanced earning
capacity (see e.g. NingBYen Yao v. KaoBYao, 147 A.D.3d 624, 630B631, 48
N.Y.S.3d 337). According to the plaintiff=s statement of net worth, sworn to on
May 15, 2017, he incurred $231,510 in student loan debt pursuing his medical
degree. As the plaintiff=s enhanced earning capacity was marital property, the
Supreme Court should have required the defendant Ato bear a concomitant
portion of the student loan debt incurred@ by the plaintiff in pursuing
his degree. It held that the defendant=s 25% share of that debt should have been
set off against her distributive award of the plaintiff=s enhanced earning
capacity.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The
Appellate Division held that in consideration of the nonliquid nature of the
plaintiff=s assets and the substantial amount of the award, the court should
have permitted the plaintiff to pay the award in installments over a period of
10 years, rather than 5 years, together with interest at the statutory rate of
9% per annum from the date of the order appealed from.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><br clear="all" style="mso-special-character: line-break;" />
</span></b><span style="color: windowtext;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The
Appellate Division held that the Supreme Court improvidently
exercised its discretion in capping the combined parental income in excess of
$143,000 at $400,000 when calculating the plaintiff=s child support obligation.
Where the combined parental income exceeds that ceiling, the court, in fixing the
basic child support obligation on income over the ceiling, has the discretion
to apply the factors set forth in Domestic Relations
Law ' 240(1Bb)(f), or to apply the statutory percentages, or to apply
both. AThe court must articulate an explanation of the basis for its
calculation of child support based on parental income in excess of the
statutory cap. Although the Supreme Court set forth the factors it considered
in determining the child support percentage of 25% of the
parties= combined income in excess of $143,000, the court did not offer
any reasons as to why it was appropriate to award child support based on
combined parental income up to $400,000. Although the plaintiff was a high‑wage
earner, the record demonstrated that the children lived a middle‑class
lifestyle. While the parties employed a live‑in nanny for several years to
assist with childcare, there was no indication that the children lived a lavish
lifestyle. It held that the court should have limited the combined parental
income in excess of the statutory cap to $250,000.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The
Supreme Court erroneously directed the plaintiff to contribute to the college
expenses of the parties= younger child. At the time of trial, the
parties= younger child was 14 years old, and no evidence was presented concerning
her academic ability, interest in attending college, choice of college, or the
expenses attendant with college. It held that it was premature for the court to
direct the plaintiff to contribute to the college expenses of the
parties= younger child. However, Supreme Court providently exercised its
decision in directing the plaintiff to pay 92% of the college expenses of the
parties= older child. However, the child support award should have
included a provision either directing that, when that child is living away from
home while attending college, the plaintiff=s monthly child support obligation
shall be reduced, or awarding the plaintiff a credit against his child support
obligation for any amounts that he contributes toward college room and board expenses
for that child during those months. It held that the court should determine the
plaintiff=s child support obligation, considering any time periods that the
child is living away from home at college. The Supreme Court did not impose a
SUNY cap on the plaintiff=s obligation to contribute to the parties= older
child=s college expenses. It held that whether to impose a SUNY cap is
determined on a case‑by‑case basis, considering the parties= means and the
child=s educational needs.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Court providently exercised its discretion in
according relatively little weight to the preferences of teen age children who
sought to escape structure imposed by mother</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Pryne v Pryne, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478951 (Mem), 2020 N.Y. Slip Op.
06269 2020 WL 6478951 (2d Dept.,2020) the parties had three children Neal P.,
born in 2003, Abigail P., born in 2004, and Jake P., born in 2008. The
Appellate Division held, inter alia, that a child=s preference is not
determinative and, in weighing this factor, the court must consider the age and
maturity of the child. Under the circumstances of this case, where, inter alia,
the teenaged children Neal and Abigail apparently sought a change of physical
custody to the father in order to escape from the more structured constraints imposed
by the mother to the more indulgent parenting style of the father, the court
providently exercised its discretion in according relatively little weight to
the preferences of Neal and Abigail, in relation to the other relevant factors.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; margin-bottom: 0in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><br clear="all" style="mso-special-character: line-break;" />
</span></b><span style="color: windowtext;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Court may not reduce or vacate arrears which accrued
prior to the date of petition to vacate acknowledgment of paternity even where
DNA shows petitioner not the father</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Westchester County Department of Social Services v Clarke, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2020 WL 6478596 (Mem), 2020 N.Y. Slip Op. 06277 (2d Dept.,2020) Clarke
commenced a proceeding pursuant to Family Court Act ' 516Ba to vacate
his acknowledgment of paternity. After genetic marker testing established that
Clarke was not the child=s biological father, the Family Court granted the
petition. In this proceeding, the court issued an order terminating Clarke=s
support obligation effective April 4, 2018. Clarke appealed challenging the
effective date of the termination of his support obligation. The Appellate
Division agreed with Family Court’s determination to terminate Clarke=s support
obligation effective as of the date of his petition to vacate the
acknowledgment of paternity. It held that the court was prohibited from
vacating arrears that accrued prior to the date of Clarke=s petition seeking
vacatur of the acknowledgment of paternity (Family Ct. Act ' 451[1])
Child support arrears must be awarded in full regardless of whether requiring
the party to pay the arrears will result in grievous injustice. The court may
not reduce or vacate arrears which accrued prior to the date of Clarke=s
petition, even if it was inappropriate to impose any child support obligation
on him in the first place and even though it has been established that he is
not the child=s biological father.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Where husband=s answer dated March 9, 2017 was not
filed until August 8, 2017 Appellate Division holds he was entitled to child
support retroactive to August 8, 2017, the date on which he first made an
application for such relief.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Pace v Pace, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6324729, 2020 N.Y. Slip Op. 06181 (3<sup>rd</sup> Dept,
2020) Plaintiff (wife) and defendant ( husband) married in 1995 and had four
children. The matter proceeded to trial on the issues of equitable
distribution and child support. The parties waived maintenance. Supreme
Court equitably distributed the parties= marital property and directed the
wife to pay the husband $800 per week in child support and $14,300 as
retroactive temporary child support dating back to August 8, 2017.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The
Appellate Division discerned no abuse of discretion in Supreme Court’s
determination that the appreciation in value of the five subject real
properties which he owned before marriage was marital property and that the
wife was entitled to 35% of the total appreciation value .</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The
Appellate Division held that with respect to the mixed‑use
properties, Supreme Court did not abuse its discretion in adopting the
valuations offered by the wife=s expert, notwithstanding the expert=s inability
to use the preferred income capitalization approach to calculate the date of
marriage values. Data regarding the properties= income at the time of the
marriage was unavailable and the wife=s expert used the income capitalization
approach, together with some consideration of the comparable sales approach, to
calculate the 2018 values of the properties. Under the circumstances, including
that the husband=s expert also utilized the income capitalization approach to
assign 2018 valuations to the properties, it found that the methodologies
employed by the wife=s expert were reasonable (see generally Ciaffone v.
Ciaffone, 228 A.D.2d 949, 951, 645 N.Y.S.2d 549 [1996] ).</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The
husband asserted that Supreme Court’s retroactive child support award should
have dated back to March 9, 2017, inasmuch as he first requested child support
in his answer and his answer bore such date. However, as confirmed by the
County Clerk=s office, the husband=s answer was not filed until August 8, 2017.
Thus, Supreme Court properly concluded that the husband was entitled to child
support retroactive to August 8, 2017, the date on which he first made an
application for such relief (see Domestic Relations
Law '' 236[B][7][a]; 240[1][j] ).</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The
Appellate Division affirmed Supreme Courts award to the husband of 50% of the
value of the wife=s audiology practice , which was stipulated to be
$1.1 million as of the date of commencement.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Family Court held that pursuant to Executive
Law ' 995‑c (9)(b)(iii) it has discretion to expunge a delinquency
respondent=s DNA profile</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Matter of John R., 69 Misc.3d 493 (Family Court, 2020) the Family Court held
that pursuant to Executive Law ' 995‑c (9)(b)(iii), as interpreted by
Matter of Samy F. v. Fabrizio, 176 A.D.3d 44, 110 N.Y.S.3d 26 [1st Dept.
2019]), it has discretion to expunge a delinquency respondent=s DNA profile,
which had been uploaded into the database of the Office of the Chief Medical
Examiner. The court ordered expungement based upon the facts that the police
gave respondent a can of soda at the precinct and respondent=s genetic material
was surreptitiously taken from the soda can; and respondent successfully
completed a supervised adjournment in contemplation of dismissal (AACD@),
resulting in the dismissal and sealing of his delinquency matter. Respondent
cited to Matter of Jahsim R., 66 Misc. 3d 426, 114 N.Y.S.3d 871 [Fam. Ct.,
Bronx County 2019] ) where a Family Court judge found, based on Samy F., that
the family court does have jurisdiction to expunge a respondent=s DNA profile
from the OCME database. The Jahsim R. court found that Samy F. was applicable
since a juvenile delinquency adjudication, like a youthful offender
adjudication, is not a conviction for a crime. The court agreed with the Jahsim
R. court that regarding the discretionary expungement of DNA profiles from the
OCME database, a juvenile delinquent is not and should not be afforded fewer
adjudication protections than a YO or an adult in equivalent circumstances.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><span style="color: black; font-size: 13.5pt; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman";"> </span><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Error to deviate from guideline amount of temporary
maintenance without making a finding that the amount was unjust or
inappropriate</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
Capozzoli v Capozzoli, 2020 WL 6051566 (2d Dept,2020) the Appellate Division
held that it was error to deviate from the guideline amount of temporary
maintenance without making a finding that the amount was unjust or
inappropriate based upon the factors enumerated in Domestic Relations Law §
236(B)(5–a)(h).</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Persistent interruptions by Respondent during his
telephonic participation hearing warranted termination of the call
and constituted a default.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Bartosz B, --- N.Y.S.3d ----, 2020 WL 6051501, 2020 N.Y. Slip Op.
05743 (2d Dept.,2020) during a combined dispositional hearing and hearing to
address the mother’s custody petition the father’s persistent interruptions
during his telephonic participation at the hearing warranted termination of the
call and constituted a default.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">“Affinity” defined for purposes of Family Offense
Proceeding</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
the Matter of KR, v. FB, --- N.Y.S.3d ----, 2020 WL 6141945, 2020 N.Y. Slip Op.
20270 (Fam Ct, 2020, a family offense proceeding, the court observed
that for purposes article 8, “members of the same family or household” means,
among other things, persons related by consanguinity or affinity. The Court
explained that a relationship of affinity is ‘the relation that one spouse
has to the blood relatives of the other spouse; relationship by marriage’
(Black’s Law Dictionary 70 [10th ed. 2014] ) (Matter of Arnold v. Arnold, 119
AD3d 938, 939, 989 NYS2d 879, 880 [2d Dept 2014]). A relationship meeting
Family Court Act § 812’s requirements exists when the petitioner and respondent
are linked by a combination of consanguinity and affinity, such as a child who
is the blood relative of the child’s parent (consanguinity) and therefore has a
relationship by affinity with the parent’s spouse (frequently called a
step-parent) (Id. [“(W)hile spouses remain married, a stepchild is related by
affinity to a stepparent”] ), The two steps are consanguinity between child and
parent (step one) and affinity between the parent and the stepparent (step
two).</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">Note: <span style="background: white;">“Affinity” is defined to be, “The relation contracted
by marriage between a husband and his wife's kindred, and between a wife and
her husband's kindred, in contradistinction from consanguinity, or relation by
blood.” </span>Carman v Newell, 1845 WL 4323 (Sup Ct, 1845)</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: #222222; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Second Department(1) reminds the matrimonial
courts of their fundamental obligations to conduct a trial on the contested
financial issues, to develop a clear trial record, to render a comprehensive
decision which covers all of the issues in dispute, and to issue a comprehensive
judgment which clearly and definitively sets forth the parties’ rights and
obligations. Courts should refrain from issuing piecemeal decisions. (2)
reiterates rule that distributive award is not a substitute for maintenance;
(3) specifies that trial court must make appropriate
findings as to the parties’ respective combined incomes and current
needs and expenses of the children, and indicate the specific reasons for its
child support award and (4) holds that counsel fees may be awarded to monied
spouse (contrary to First Department rule).</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Kaufman v Kaufman, --- N.Y.S.3d ----, 2020 WL 6051523, 2020 N.Y. Slip Op. 05732
(2d Dept.,2020) </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> Maintenance</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> The
court determined that the defendant’s obligation to pay interim maintenance
would terminate once the plaintiff received $5 million in hand in
non-retirement assets. Until then, the defendant was to pay the plaintiff
$10,000 per month. The payments were to be considered an advance on equitable
distribution, as long as in the final determination of the case (including
after appellate review), the plaintiff receives at least $5 million. The
plaintiff argued on appeal that the Supreme Court’s maintenance
determination eroded her distributive award.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><b style="mso-bidi-font-weight: normal;"><i><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">In
the context of this case, and under the constraints imposed by the limitations
on the arguments presented by both sides, it found it improper for the Supreme
Court to have directed that the $10,000 monthly payments be treated as a credit
against her equitable distribution award. A distributive award is intended to
reflect the equitable distribution of the marital assets between the parties,
while maintenance is a support payment awarded to assist the less affluent
spouse in meeting his or her reasonable needs in light of the predivorce standard
of living. Where a substantial equitable distribution award
obviates, or reduces, the need for maintenance, it would not be improvident to
provide for, or increase the amount of, maintenance on account of a delay in
the payment of the equitable distribution award. However, it is improper to
give the more affluent spouse a credit against equitable distribution on
account of the maintenance paid. Doing so essentially means that the less
affluent spouse would end up paying his or her own maintenance, though the
court determined that the more affluent spouse should be paying maintenance.
The Appellate Division eliminated that direction by the court.</span></i></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> The
Appellate Divison agreed with plaintiff that the Supreme Court
failed to properly determine the issue of child support in accordance with the
Child Support Standards Act. Where, as here, the combined parental income
exceeds the statutory baseline, the court may apply the statutory percentage to
all or part of the income over the baseline or it may consider the statutory
factors to determine what, if any, additional child support should be awarded.
But whatever the court does, there must be “some record articulation of the
reasons for the court’s choice ... to facilitate ... review.” The court’s
decision ‘should reflect a careful consideration of the stated basis for its
exercise of discretion, the parties’ circumstances, and its reasoning why there
[should or] should not be a departure from the prescribed percentage’ ” ‘In
addition to providing a record articulation for deviating or not deviating from
the statutory formula, a court must relate that record articulation to the
statutory factors’ <i>. In this case, the Supreme Court failed to make
appropriate findings as to the parties’ respective combined incomes and the
current needs and expenses of the children. In view of its bifurcation of the
issues, and the deferral of child support to a later phase of trial that never
occurred, the parties did not have a full and fair opportunity to submit their
evidence as to their current incomes and as to the current needs and expenses
of the children. While the court applied the statutory percentage to $350,000
in combined parental income, it did not provide any explanation as to why it
chose that amount, as opposed to some greater or lesser amount, or why the
resulting amount of child support was the appropriate level of support. For
these reasons, the child support determinations made by the Supreme Court was
set aside, including the allocation of responsibility for statutory add-ons,
and the matter remitted to the Supreme Court for further proceedings.</i></span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> The
Appellate Division agreed with the defendant’s contention that the
Supreme Court erred in awarding the plaintiff $1.5 million in counsel fees
without holding an evidentiary hearing, as such award was in the nature of a
final award of counsel fees. Despite the court’s framing of the $1.5 million in
counsel fees as an “interim” award, it was tantamount to a final award, as it
was set forth in an order after trial in which the court directed the plaintiff
to settle a judgment of divorce on notice in connection therewith. Where, as
here, the parties did not stipulate to waive a hearing, a final award of
counsel fees can only be granted after an evidentiary hearing is conducted to
permit the opposing party “a meaningful way of testing the [attorney’s] claims
relative to time and value” The Supreme Court erred in endeavoring to avoid its
obligation to hold an appropriate hearing by simply relying upon the history of
interim awards. The requirement of a hearing on counsel fees at the end of a
matrimonial case cannot be skirted by asserting that the issue has been
resolved through successive interim fee motions and orders.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> The
Appellate Division pointed out that in exercising judicial
discretion to determine counsel fee applications, the courts must take into
account not only the financial circumstances of the parties but the
circumstances of the case as a whole, including the relative merits of the
parties’ positions and whether either party has delayed the proceedings
unreasonably or engaged in unnecessary litigation. A less-monied spouse should
not be expected to exhaust or spend down a prospective or actual distributive
award in order to pay counsel fees as the result of unreasonable or excessive
litigation conduct by the adverse party (see Prichep v. Prichep, 52 A.D.3d 61,
66, 858 N.Y.S.2d 667). On the other hand, the more affluent spouse should not
be treated as an open-ended checkbook expected to pay for exorbitant legal fees
incurred by the less affluent spouse through excessive litigation or the
assertion of unreasonable positions. <i>Where a party has asserted
unreasonable positions or failed to cooperate in discovery, and thereby increased
the cost of the litigation, the court may make a counsel fee award in favor of
the offended party or not make, or make a lesser award, in favor of the
offending party.</i> The Court observed that an “ assessment of
litigiousness cannot be made simply by looking at which party made the most
motions since the need for motion practice may have been prompted by
unreasonableness on the part of the non-moving party. Determining whether
conduct is reasonable or obstructive on the basis of conflicting affirmations
of counsel may often prove to be difficult. An evidentiary hearing may well be
of inestimable value in assessing the relative merit of the parties’ conduct.
The court held that the issue of counsel fees case had to
be addressed at an evidentiary hearing.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">There is no basis for an award of counsel fees where
the court’s award to the defendant made no reference to the parties’ finances.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Schwartz v Schwartz, --- N.Y.S.3d ----, 2020 WL 5806649, 2020 N.Y. Slip Op.
05248(2d Dept.,2020) a post-judgment application for permission to relocate</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">FCA § 716, which permits the Family Court to
substitute a neglect petition for a PINS petition does not specify exactly what
substitution entails, or procedurally how the case advanced ,and has not been
clarified by the Courts.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Matter of Pins Proceeding Beekmantown Central School District v John,.---
N.Y.S.3d ----, 2020 WL 5950158, 2020 N.Y. Slip Op. 20252(Family Court, 2020).
In order to give meaning to FCA § 716, and to protect Ms. S.’s Due Process
rights, the Court concluded that the term “substitute” in the context of FCA §
716, requires the filing of a new valid Article 10 petition. While the Court
has the authority to authorize anyone to file an Article 10 petition pursuant
to FCA § 1032, the Court found that it would serve both the interest of justice
and the administration of justice to require the Clinton County Department of
Social Services to file a petition.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: #222222; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Where it is evident that Supreme Court considered all
relevant factors and the reasons for its decision are articulated, the court is
not required to specifically cite to and analyze each statutory factor.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Fishman v Fishman, --- N.Y.S.3d ----, 2020 WL 5223579, 2020 N.Y. Slip Op. 04827</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Before a court strikes a pleading or precludes
evidence based failure to provide court-ordered discovery, there must be a
clear showing that the failure was willful and contumacious.</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Ritornato v Ritornato, --- N.Y.S.3d ----, 2020 WL 5540086 (Mem), 2020 N.Y. Slip
Op. 04981(2d Dept.,2020) The willful and contumacious character of a party’s
conduct can be inferred from either (1) the repeated failure to respond to
demands or comply with court-ordered discovery, without a reasonable excuse for
these failures, or (2) the failure to comply with court-ordered discovery over
an extended period of time”.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">A Prior restraint on spouses speech must be couched in
narrowest terms that will accomplish the pin-pointed objective permitted by
constitutional mandate and the essential needs of the public order</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Karantinidis v Karantinidis, --- N.Y.S.3d ----, 2020 WL 5648552, 2020 N.Y. Slip
Op. 05039 (2d Dept.,2020) the Appellate Division held that an injunctive order
issued in the area of First Amendment rights must be couched in the narrowest
terms that will accomplish the pin-pointed objective permitted by
constitutional mandate and the essential needs of the public order (see Carroll
v. President and Comm’rs of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21
L.Ed.2d 325). The order must be tailored as precisely as possible to the exact
needs of the case.</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; mso-outline-level: 1;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman"; mso-font-kerning: 18.0pt;">Objections from nonfinal orders made by a Support
Magistrate are typically not reviewed</span></b><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 24pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> </span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> In
Swift v Mead, --- N.Y.S.3d ----, 2020 WL 5665278, 2020 N.Y. Slip Op. 05099(3<sup>rd</sup> Dept.,2020)
the Appellate Division held that objections from nonfinal orders made by a
Support Magistrate are typically not reviewed unless they could lead to
irreparable harm”</span></b><span style="color: black; font-size: 13.5pt;"><o:p></o:p></span></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"> </span></o:p></p><br /><p></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-19519345533155210572020-10-05T09:08:00.001-04:002020-10-05T09:08:05.563-04:00Recent Decisions and Legislation October 1, 2020<p><span style="font-family: arial;"> </span></p><p class="MsoNormal"><o:p><span style="font-family: arial;"> </span></o:p></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="background: white; color: black; font-size: 11.0pt; letter-spacing: .6pt; mso-fareast-font-family: Calibri; mso-no-proof: yes; mso-themecolor: text1;"><span style="mso-spacerun: yes;">
</span></span></b><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: arial;">September 16, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, Second Department</span></span></u></b></p>
<p class="MsoNormal"><b style="font-family: arial;"><span style="color: red; font-size: 11.0pt;">Defendant</span></b><b style="font-family: arial;"><span style="color: red; font-size: 11.0pt;">s sustained physical abuse of the plaintiff constituted egregious
marital fault to be factored into equitable distribution award</span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;">In
Socci v Socci, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 5223043 (Mem), 2020 N.Y. Slip Op.
04888 (2d Dept.,2020) the parties were married on February 7, 1987. In March
2008, the defendant was convicted, upon his pleas of guilty, of assault in the
second degree (two counts), kidnaping in the second degree, and aggravated
criminal contempt related to incidents in which he beat the parties</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11pt;">=</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;">
two daughters with a belt and chained them to a tree overnight, and forced the
plaintiff into his vehicle and tried to make her pour gasoline on herself. In
October 2009, the plaintiff commenced this action for a divorce. At the trial
in the divorce action, the plaintiff testified as to these events, as well as
numerous other incidents of physical abuse during the marriage. Supreme Court,
among other things, found that the defendant</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11pt;">=</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;">s
egregious conduct in abusing the plaintiff over the course of the marriage
warranted consideration in determining equitable distribution. Based, in part,
on the defendant</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11pt;">=</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;">s egregious fault, the court awarded the plaintiff 75%
of the net proceeds from the sale of the marital residence and 60% of the
parties</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11pt;">=</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;"> investment and bank accounts and of the marital
contributions to the defendant</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11pt;">=</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;">s deferred compensation plan. The Appellate Division
affirmed. It held that the general rule
in New York is that marital fault should not be considered in determining
equitable distribution. However, egregious marital fault may be considered in
rare cases involving extreme conduct which shocks the conscience of the court.
The marital misconduct must be </span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11pt;">A</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;">so egregious or uncivilized as to bespeak of a blatant
disregard of the marital relationship. It found Supreme Court providently
exercised its discretion in finding that the defendant</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11pt;">=</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;">s
sustained physical abuse of the plaintiff over the course of their marriage
constituted egregious marital fault to be factored into the equitable
distribution award in addition to other considerations, and providently
exercised its discretion in fashioning the equitable distribution award (see
Havell v. Islam, 301 A.D.2d at 345, 751 N.Y.S.2d 449; Brancoveanu v.
Brancoveanu, 145 A.D.2d at 398, 535 N.Y.S.2d 86).</span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Court imputing
income must provide a clear record of the source of imputed income, reasons for the imputation,
and the resultant calculations.</span></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">In
Pilkington v Pilkington, <span style="mso-tab-count: 1;"> </span>185 A.D.3d 844,
127 N.Y.S.3d 523, 2020 N.Y. Slip Op. 03931 (2d Dept, 2020) the parties were
married in 2003 and had two children, born in 2006 and 2007, respectively. In
2013, the plaintiff commenced the action for a divorce. After the parties
stipulated to the terms of custody and parental access, they agreed to have the
Supreme Court decide the </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">financial, property and employment matters</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">
based on their submissions in lieu of a trial. The Appellate Division held that
</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">the court may impute income based on the parent</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
employment history, future earning capacity, educational background, or money
received from friends and relatives. However, the court must provide a clear
record of the source of the imputed income, the reasons for the imputation, and
the resultant calculations, It<span style="mso-spacerun: yes;"> </span>agreed
with the Supreme Court’s determination to impute income of $85,000 to the
plaintiff based, in part, on contributions he received from his fiancée, but
the amount imputed was not supported by the record .It also agreed with the
court’s determination to impute income to the plaintiff based on income he
received from performing side jobs. It also held that based upon the defendant</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
skills and employment experience, and contributions from her family, the court
improvidently exercised its discretion in imputing to her an annual income of
only $25,000. Since the documents submitted by the parties were inadequate to
determine the contributions from the plaintiff</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
fiancée and the average income earned by the plaintiff from performing side
jobs, and the parties were not afforded the opportunity to submit further
documents, the matter was remitted to the Supreme Court to hold a hearing on
the issue of how much income should be imputed to each party, and the
calculation of a new child support obligation thereafter.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span>The Appellate Division observed that pursuant
to Domestic Relations Law </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b><b><span style="font-size: 11.0pt;"> 240(1</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">B</span></span></b><b><span style="font-size: 11.0pt;">b)(c)(7), the court may direct a parent to contribute
to a child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s education. In determining whether to award
educational expenses, the court must consider the circumstances of the case,
the circumstances of the respective parties, the best interests of the
children, and the requirements of justice.<span style="mso-spacerun: yes;">
</span>Supreme Court providently exercised its discretion in not requiring the
plaintiff to pay a pro rata share of the parties</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">
children</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s private school tuition. The defendant failed to
submit evidence to establish that the education provided by the public schools
in Florida would be inferior to that provided by Hillel Day School of Boca
Raton, a private religious school, or that the needs of either child would be
better served by their attendance at a private religious school.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: arial;"><br /></span></span></u></b></p><p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: arial;">September 1, 2020</span></span></u></b></p>
<p class="MsoNormal"><a href="http://url35.membercentral.com/ls/click?upn=KAEzj-2FTC9lrmuiGexn9L-2F02aDNHT5wk13LVgsUvl8ae4KY0NHfcSq3xOnYF40hs9Pk8-2FOJTynWuBrC3fa96hREqEscml1q-2B2EVkYK-2ByptdMzTXgGJS3vTS2nW1lKE7GAKihfPVLPPBQilmfKoRloTFRBZrVDOM-2Ftw-2BRgfuSrcJv8shfejQ1P-2B159emvWow794FHL_Ojkb0UCLlw3qjdi-2BX7dEPyPXOalef9U5v315P3sP3X9qdt2nu2dga0hvOFVhMZDuUT3e3rcrBTz-2F3xyJ0t9nx6ZKWT7M4p8zU4qBxZNQu4kRg0U8yLEMF-2F8falWvXMk5hhzaeFgzLuynw7LLtwZkVL1DklpiGZYZ3zz9dktWTr081VZql5Z36n1bGPAdErHpDYRzqB9IoFTTK0abPlUuPoGkB5RnmNAZQURs93QbtY8n3l2TIT-2FR4wghgaAuxt0h8-2BffAmAlNroqyaDrkeFqIzusfAJiKDzmJXTjSZJRTabsUZhOldm-2BN-2BxWA6etrTHu2647an5wWn52vobDW5kRpKNTh82iJAzC-2Bh83PTNViyDZcW4N6m4vlhRZlosadF3REh9-2Fu3yRwmNR-2F330zHQEB-2BFmDv9oJF59WenYeo42CVQB-2BNBkWaxFM5yq-2BQmmRTngp4B3MM6uxLl4GH9S4FmhCNrUM4vbV-2FjUQiyuux2DnA8-3D" style="font-family: arial;" target="_blank"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">Executive Order 202.60</span></b></a><b style="font-family: arial;"><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"> continues the
modification and suspension of laws relating to the disaster emergency.</span></u></b></p>
<p class="MsoNormal"><span style="mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> <o:p></o:p></span></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">The Executive </span></b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">Order <strong><span style="color: red;">extends the provisions tolling
the Statute of Limitations until October 4, 2020</span></strong><span style="color: red;">.</span><b><span style="color: black; mso-themecolor: text1;"> </span>It
also modifies previous executive orders to provide that the tolling of civil
statutes of limitation be lifted as it relates to any action to challenge the
approval by any municipal government or public authority of a construction
project that includes either affordable housing or space for use by
not-for-profit organizations. The EO further states that "The suspension
of Section 30.30 of the Criminal Procedure Law, is hereby modified to require
that speedy trial time limitations remain suspended in a jurisdiction until
such time as petit criminal juries are reconvened in that jurisdiction;
Criminal Procedure Law 170.70 is no longer suspended, and for any appearance
which has been required to be in-person may continue to be conducted virtually
with the consent of the parties."<o:p></o:p></b></span></span></p>
<p class="MsoNormal"><span style="mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"> </span></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;">Appellate Division, Second Department Amends Rules of
Practice<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><br /></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="background: white; color: black; font-size: 11.0pt; mso-color-alt: windowtext;">By </span></b><a href="http://www.courts.state.ny.us/courts/ad2/pdf/Administrative%20Order%202020-0701%20-%20Amending%20670.4%20(003).pdf" target="_blank"><b><span style="background: white; font-size: 11.0pt;">Administrative
Order issued on July 1, 2020</span></b></a><b><span style="background: white; color: black; font-size: 11.0pt; mso-color-alt: windowtext;">, the Second Department
has amended its local rules of practice to omit the requirement that papers in
relation to motions and original proceedings be filed in both digital and hard
copy format. Rather, all such papers “shall be submitted in digital format,
shall comply with the technical requirements for electronically filed documents
(</span></b><a href="http://www.nycourts.gov/courts/ad2/pdf/efilingrules.pdf" target="_blank"><b><span style="background: white; font-size: 11.0pt;">22 NYCRR
Part 1245, Appendix A</span></b></a><b><span style="background: white; color: black; font-size: 11.0pt; mso-color-alt: windowtext;">), shall be served on
all parties in digital format, and shall be filed by uploading through the
digital portal located on the home page of the Court’s website with proof of
service” (</span></b><a href="http://www.courts.state.ny.us/courts/ad2/pdf/Administrative%20Order%202020-0701%20-%20Amending%20670.4%20(003).pdf" target="_blank"><b><span style="background: white; font-size: 11.0pt;">Admin Order
2020-0701</span></b></a><b><span style="background: white; color: black; font-size: 11.0pt; mso-color-alt: windowtext;">). Hard copy submissions are only
required when specifically requested by the Court. This amendment, by which
subdivision (d) was added to section 670.4 of the Second Department’s Rules of
Practice, applies to both NYSCEF matters and matters in which electronic filing
via the NYSCEF system is not mandated. Exemptions are provided for exempt
attorneys and exempt litigants as those terms are defined in the Electronic
Filing Rules of the Appellate Division (</span></b><a href="http://www.courts.state.ny.us/courts/ad2/pdf/efilingrules.pdf#page=3" target="_blank"><b><span style="background: white; font-size: 11.0pt;">22 NYCRR
1245.4</span></b></a><b><span style="background: white; color: black; font-size: 11.0pt; mso-color-alt: windowtext;">), who must be served and must file in hard copy.</span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><br /></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;">Second Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><br /></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">To find a
marital contract unconscionable, two elements must be shown: procedural
unconscionability, and substantive unconscionability</span></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In
Cilento v Cilento, --- N.Y.S.3d ----, 2020 WL 4661442, 2020 N.Y. Slip Op. 04453
(2d Dept.,2020) the parties were married on January 20, 1996. In April 2018,
the plaintiff commenced this action for a divorce seeking, inter alia, to
incorporate a stipulation of settlement that the parties had entered into in
August 2017 into the judgment of divorce. The defendant<span style="mso-spacerun: yes;"> </span>moved to vacate the stipulation on the ground
that it was unconscionable. The Supreme Court denied the defendant’s motion,
and the Appellate Division affirmed.<span style="mso-spacerun: yes;"> </span>As
relevant to the appeal, the attorney who the defendant retained in connection
with a Family Court proceeding and who he used in the past , when he needed an
accurate Italian translation and understanding of legal documents was the mediator
the parties thereafter selected and each paid to assist them in formulating the
terms of the stipulation after two sessions with him. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"> The Appellate Division held that in order to find a
marital contract unconscionable, two elements must be shown: procedural
unconscionability, which requires “[a] lack of meaningful choice” on the part
of one of the parties, and substantive unconscionability, which requires
contract terms which are “unreasonably favorable” to the other party (Gillman
v. Chase Manhattan Bank, 73 N.Y.2d 1, 10–12, 537 N.Y.S.2d 787, 534 N.E.2d 824).
The defendant failed to establish that the stipulation was procedurally
unconscionable. The stipulation was the product of a mediation conducted by an
attorney who had represented the defendant on past occasions—specifically,
according to the defendant, when he needed an accurate translation and
understanding of legal documents. The defendant’s contention that he signed the
stipulation without fully understanding its terms was wholly inconsistent with
his contention that the reason he had retained the attorney in the past was because he had used the
attorney to explain and translate legal documents. It agreed with the Supreme Court’s determination
that the stipulation at issue was not procedurally unconscionable.</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"> The
defendant also failed to show that the stipulation was substantively
unconscionable. Each party relinquished significant rights under the terms of
the stipulation.</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Third
Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;"><br /></span></span></b></p><p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Only penalty
Family Court may impose for willful violation of a custodial order without a
concurrent modification petition pending is a monetary fine and/or imprisonment</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In
Matter of Gerard P. v Paula P. --- N.Y.S.3d ----, 2020 WL 4678335, 2020 N.Y.
Slip Op. 04515(3d Dept.,2020) the Appellate Division held that Family Court
erred in dismissing the mother’s<span style="mso-spacerun: yes;">
</span>modification petitions without conducting a hearing. In any modification
proceeding, the threshold issue is whether there has been a change in
circumstances since entry of the prior custody order that warrants a review of
the issue of custody to ensure the continued best interests of the children. An
evidentiary hearing is generally necessary and should be conducted unless the
party seeking the modification fails to make a sufficient evidentiary showing
to warrant a hearing or no hearing is requested and the Court has sufficient
information to undertake a comprehensive independent review of the children’s
best interests. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>The Appellate Division found that Family Court did not,
as required on a motion to dismiss,<span style="mso-spacerun: yes;">
</span>liberally construe the mother’s pro se petitions, accept her allegations
as true, afford her the benefit of every possible inference or resolve
credibility issues in her favor when determining the motions to dismiss. Family
Court improperly made factual findings and credibility determinations,
inappropriately resolving the conflicting versions of events, as set forth in
the mother’s petitions and the father’s supporting affidavits, against the
mother and in favor of the father. Such factual findings and credibility
assessments have no place in an order resolving a motion to dismiss for failure
to state a claim. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"> In reversing the orders it pointed out that generally,
the only available penalty that Family Court may impose for a willful violation
of a custodial order without a concurrent modification petition pending is a
monetary fine and/or a period of imprisonment (see Judiciary Law § 753[A];
Family Ct. Act § 156). Family Court sanctioned the mother by modifying the
joint legal order of custody and granting the father sole legal custody of the
children without determining whether there had been a change in circumstances.
In addition, Family Court failed to engage in any discernible analysis of
whether a modification was in the best interests of the children.</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span></span></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Supreme Court
<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Permission to
serve defendant by an alternative method (see CPLR 308(5)) FedEx International
Economy mail granted<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Sweet-Martinez v Martinez, --- N.Y.S.3d ----, 2020 WL
4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion
for permission to serve defendant via an alternative method (see CPLR 308 [5]),
namely FedEx International Economy mail to his last known address in Mexico was
granted. The parties were married on November 17, 2007. Defendant was<span style="mso-spacerun: yes;"> </span>deported to Mexico on March 8, 2011.
Plaintiff commenced this action for a no-fault divorce on December 28, 2019
(see Domestic Relations Law § 170 [7]). Plaintiff argued that<span style="mso-spacerun: yes;"> </span>service upon defendant by mail was
permissible under article 10 (a) of the Hague Convention on Service Abroad,
which provides: “Provided the State of destination does not object, the present
Convention shall not interfere with the freedom to send judicial documents, by
postal channels, directly to persons abroad.” The Court observed that although
there is no case law on this precise issue in New York, other courts have found
that Mexico has not outright objected to article 10 (a) of the Hague Convention
permitting service of process by mail (see e.g. Intl. Transactions, Ltd v
Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX
2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct
App 2014]). To that end, the Court found that service upon defendant via FedEx
International Economy mail to his last known address in Mexico was permissible
— under both CPLR 308 (5) and article 10 (a) of the Hague Convention.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><br /></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: arial;">August 16, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><br /></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;">Appellate Division, Second Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Children failed
to receive meaningful assistance of counsel where AFC substituted judgment and
took position contrary to wishes of children.</span></span></b></p>
<p class="MsoNormal"><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;">In
Silverman v Silverman,</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4342466, 2020 N.Y. Slip Op. 04338</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;"> (2d Dept.,2020) the Appellate Division found that the
AFC improperly substituted judgment and took a position that was contrary to
the wishes of her clients, the parties</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11pt;">=</span></b><b style="font-family: arial; text-indent: 0.5in;"><span style="font-size: 11.0pt;"> children, to such a degree that the custody order
should be reversed and the matter remitted to the Supreme Court, for the appointment of a new AFC, a de novo
hearing and new determination</span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">The
parties entered into a so ordered stipulation of settlement dated October 17,
2016<span style="mso-spacerun: yes;"> </span>where they agreed to joint legal
custody of the children, with residential custody to the defendant and parental
access to the plaintiff. In April 2017, prior to the entry of a judgment of
divorce, the plaintiff moved, inter alia, to modify the stipulation so as to
award him residential custody of the children. While the plaintiff</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
motion was pending, the defendant filed a family offense petition dated
November 21, 2017, in the Family Court, alleging that the plaintiff strangled
the youngest child. The Family Court issued a temporary order of protection
against the plaintiff, which, inter alia, directed him to stay away from the
children. The plaintiff successfully moved to transfer the family offense
proceeding to the Supreme Court. After an in camera interview with the
children, the Supreme Court dismissed the family offense petition, vacated the
temporary order of protection, and directed overnight parental access with the
plaintiff. After a hearing, the Supreme Court granted the plaintiff</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
motion to modify the stipulation to award him residential custody of the
children.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">The
Appellate Division observed that an AFC is required to </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">zealously
advocate the child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s position. The Rules of the Chief Jude state that </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">the
[AFC] should be directed by the wishes of the child, even if the [AFC] believes
that what the child wants is not in the child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
best interests</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;"> and that the [AFC] should explain fully the options
available to the child, and may recommend to the child a course of action that
in the [AFC]</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">></span></span></b><b><span style="font-size: 11.0pt;">s view would best promote the child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
interests</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=<span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></span></b><b><span style="font-size: 11.0pt;"> (22 NYCRR 7.2[d][2]). An AFC would be justified in
substituting judgment and advocating a position that is contrary to the child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
wishes only if the AFC is </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">convinced either that the child lacks the capacity for
knowing, voluntary and considered judgment, or that following the child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
wishes is likely to result in a substantial risk of imminent serious harm to
the child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;"> (22 NYCRR 7.2[d][3]. </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">In
those situations the attorney must still inform the court of the child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
articulated wishes if the child wants the attorney to do so</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=<span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></span></b><b><span style="font-size: 11.0pt;">( 22 NYCRR 7.2[d][3]). The Appellate Division<span style="mso-spacerun: yes;"> </span>observed that the role of the attorney for
the child is to represent the child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s wishes, not to give the opinion as the child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
attorney as to his [or her] best interests.<span style="mso-spacerun: yes;">
</span>It found that the AFC advised the Supreme Court that the children wanted
to spend daytime with the plaintiff but they wanted to spend overnights with
the defendant. They wanted residential custody to remain with the defendant.
The AFC informed the court of her clients</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;"> position at the beginning of the hearing.
Nevertheless, the AFC</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s representation was in direct contravention of her
clients</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;"> stated parameters. Throughout the course of the
proceedings, she failed to advocate on behalf of her clients, who were 13 and
11 years old at the time of the hearing, and who were both on the high honor
roll and involved in extracurricular activities. The AFC actively pursued a
course of litigation aimed at opposing their stated positions. She joined the
plaintiff in opposing the introduction of evidence and witnesses in support of
the defendant</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s case. When the defendant sought to introduce
evidence in defense of the plaintiff</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s allegations that the defendant provided the children
with unnecessary medical care, the AFC joined the plaintiff in opposing the
introduction of the defendant</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s evidence. The AFC also opposed the introduction of
evidence that may have supported one child</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s claim that the plaintiff attempted to strangle her.
The AFC objected to the testimony of school personnel for the purpose of
explaining the children</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s seemingly excessive school absences. The AFC</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
questions of the plaintiff during cross-examination were designed to elicit
testimony in support of the plaintiff</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s case, in opposition to her clients</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">
wishes. Her questions of the psychologist chosen by the parties to provide
therapeutic parental access, were aimed at supporting the plaintiff in his
quest for residential custody. The AFC objected to the introduction of
witnesses and evidence favorable to the defendant</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
case, but she did not make similar objections to the plaintiff</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
evidence. Upon successfully arguing to preclude the defendant</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
proffered evidence, the AFC proceeded to use the defendant</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
lack of evidence to support the plaintiff</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s positions. She also failed to object to the Supreme
Court’s decision to limit the amount of time for the defendant to present her
case. She also failed to take an active role in the proceedings by presenting
evidence and witnesses on behalf of her clients.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">The
Appellate Division held that AFC</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s failure to support her clients</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">
position was particularly troubling due to the allegations of domestic violence
made by both the defendant and the children.<span style="mso-spacerun: yes;">
</span>Nevertheless, she continued to argue in support of residential custody
to the plaintiff, in opposition to the wishes of her clients. The record
established that neither of the exceptions to the rules regarding the AFC</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
duty were<span style="mso-spacerun: yes;"> </span>present here. There was no
finding that the children lacked the capacity for knowing, voluntary, and
considered judgment (see 22 NYCRR 7.2[d][3]). Hence, the children failed to
receive meaningful assistance of counsel. Under these circumstances, it was
improper for the AFC to substitute judgment and take a position that was
contrary to the wishes of the children.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;">Service of summons authorized under Hague Convention
on Service Abroad by FedEx International Economy mail to last known address in
Mexico.</span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">In Sweet‑Martinez v Martinez, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL
4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion
for permission to serve defendant via an alternative method (see CPLR 308 [5]),
namely FedEx International Economy mail to his last known address in Mexico was
granted. The parties were married on November 17, 2007. Defendant was<span style="mso-spacerun: yes;"> </span>deported to Mexico on March 8, 2011.
Plaintiff commenced this action for a no‑fault divorce on December 28, 2019
(see Domestic Relations Law </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> 170 [7]). Plaintiff argued that<span style="mso-spacerun: yes;"> </span>service upon defendant by mail was permissible
under article 10 (a) of the Hague Convention on Service Abroad, which provides:
</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">Provided the
State of destination does not object, the present Convention shall not
interfere with the freedom to send judicial documents, by postal channels,
directly to persons abroad.</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> The Court observed that although there
is no case law on this precise issue in New York, other courts have found that
Mexico has not outright objected to article 10 (a) of the Hague Convention
permitting service of process by mail (see e.g. Intl. Transactions, Ltd v
Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX
2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct
App 2014]). To that end, the Court found that service upon defendant via FedEx
International Economy mail to his last known address in Mexico was permissible </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">C</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> under both
CPLR 308 (5) and article 10 (a) of the Hague Convention.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;">Family Court<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;">Family Offense Proceeding Dismissed on grounds of
Diplomatic Immunity where Respondent and Petitioner were immune from the civil
process</span></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><br /></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">In Matter of F.G.O.v. B.G.,.‑‑‑
N.Y.S.3d ‑‑‑‑, 2020 WL 4379526, 2020 N.Y. Slip Op. 20184 (Fam Ct, 2020)
Petitioner, who was the spouse of the Respondent sought a final order of
protection. Family Court granted Respondents motion to dismiss on the<span style="mso-spacerun: yes;"> </span>basis of Respondent</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">s immunity
pursuant to the Vienna Convention on Diplomatic Relations (1961). Respondent
stated that he was a diplomatic agent of the Permanent Mission of the Republic
of Congo to the United Nations. He submitted to the Court copy of a document
issued by the Permanent Mission of the Republic of Congo to the United Nations,
dated October 9, 2019, which identified Respondent as a diplomatic agent; a
document from the United States Mission to the United Nations which stated that
the official records of the United States Mission indicated that Respondent was
</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">notified by the
Permanent Mission of the Republic of the Congo to the United Nations in New
York as First Secretary on June 20, 2016 and continues to serve in that
capacity; and a United Nations Diplomatic Identification Card with his name,
personal information and photograph, issued by the U.S. Department of State,
which expired on June 30, 2022. The back of the card explicitly stated that the
bearer of the card </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">enjoys immunity from criminal
jurisdiction.</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> The Court held
that the documentary evidence submitted, particularly the Diplomatic
Identification Card, unlike an affidavit or deposition testimony, is </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">essentially
undeniable</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> and may
conclusively establish a defense to the proceeding as a matter of law. <o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">Turning to the substance of the
defense, the Court observed that the<span style="mso-spacerun: yes;">
</span>Vienna Convention states that a </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">diplomatic
agent shall enjoy immunity from the civil and administrative jurisdiction [of
the receiving State]</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> (Vienna Convention at art. 31.1).
Although there are exceptions to this immunity involving, inter alia, property
in the receiving state and professional or commercial activity outside the
scope of diplomatic functions, none of the exceptions are applicable here. In
other words, apart from inapplicable exceptions, a diplomatic agent has
absolute immunity from civil jurisdiction. The court noted that in Matter of
Terrence K. (Lydia K.), 135 A.D.2d 857, 522 N.Y.S.2d 949 [2d Dept. 1987], where
the Second Department found that Family Court had properly dismissed the child
abuse proceeding because the respondent parents were entitled to diplomatic
immunity pursuant to the Vienna Convention. The father was an attaché of the
Mission of the Republic of Zimbabwe to the United Nations. The Court noted the
record included a certificate stating the father was accepted by the United
States Government for inclusion on the list of Members of Permanent Missions
Entitled to Diplomatic Privileges and Immunities, and that the mother and child
were registered as members of the household and thus share in the privileges
and immunities of the father. The Court ultimately found that this evidence </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">conclusively
establishes that the father and his family, including the child, are immune
from the civil process of the courts of this State.</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b></span><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;"> Family Court
held that once diplomatic status is sufficiently established, as here, and no
exceptions apply, the Court was is bound to follow the Vienna Convention and
controlling precedent (see Reinoso v. Bragg, 28 Misc. 3d 1235(A), 2010 WL
3607482 [Sup. Ct., New York County 2010]). The proceeding was dismissed as the
Respondent and Petitioner were immune from the civil process of the courts of
this State.</span><o:p></o:p></span></b></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-90212997987169564622020-08-15T07:29:00.006-04:002020-08-15T07:30:56.494-04:00Recent Decisions and Legislation - August 1, 2020<p><span style="font-family: arial;"><b> </b></span></p><p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: arial;">August 1, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="background: white;"><span style="color: #222222;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="background: white; color: #f0210b;">An article titled </span><span style="background: white; color: #0211f9;">“Is there
a Domestic Relations Exception to Diversity Jurisdiction", by Judge George
B. Daniels of the United States District Court (SDNY), and Joel R. Brandes,
appears in the “Outside Counsel” column of the August 5, 2020 issue of the New
York Law Journal, at page 4</span><span style="background: white; color: #323e4f;">. </span><span style="color: black; mso-color-alt: windowtext;"><a href="https://www.nysdivorce.com/uploads/8/1/3/4/81349156/reprint_is_there_a_domestic_relations_exception_7.18.20.pdf" target="_blank"><span style="background: white; color: #323e4f; mso-themecolor: text2; mso-themeshade: 191;">Click here to read the article</span></a></span><u><span style="background: white; color: #323e4f;">.</span></u><span style="background: white; color: #323e4f;"> </span><span style="color: #222222;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><span style="color: #222222;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="background: white;"><span style="color: #222222;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Latest Executive Order<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: #222222; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; mso-color-alt: windowtext;"><a href="http://url35.membercentral.com/ls/click?upn=KAEzj-2FTC9lrmuiGexn9L-2F02aDNHT5wk13LVgsUvl8af38vZUB-2BXpPawx1O5gFf8vi226ixBeRRWU3iIKSeToFqrzBhA3n9SXKDzwVhr-2FKVZV4vhXmlt3QbcqIpDhR9apnk2-2BsJMQ2sPoBQy5ZtFvEq9Uu9Rt9TJ17j4nYirn-2BiyeqBP3Sjiy4AYQefwIxHWzE18P_Ojkb0UCLlw3qjdi-2BX7dEPyPXOalef9U5v315P3sP3X9qdt2nu2dga0hvOFVhMZDuUT3e3rcrBTz-2F3xyJ0t9nx3O-2BxchE0Lp5NTzIkHon1-2Br0X9o13D9wl7O0czXO-2BhGKyMxlF3V7WJRj3c62vfNCJLa-2BSUX-2FDv8l69l5MFE8kYP42LT-2FZbfk3kSH2cy8WQXKuueNUI1XW675-2BeZNbd2-2BH849RP2ExD8UmjlrL3aXJ-2BfrLU4wcLxulakuGi6AphJj-2BY5iciIuHiiHzfVDTr-2B6sGxa-2FsLlia9MWz-2FjaY4kl61e6SfejyQQzNCIOzv7QKJXuhhVJ6TTjf1hxAwj7313AlmX42uzpcDvZGV122w133M-3D" target="_blank"><span style="color: #1155cc; font-size: 11.0pt;">Executive Order
202.55</span></a></span><span style="color: #0563c1; font-size: 11.0pt;">,
signed on August 5, 2020</span><span style="color: #222222; font-size: 11.0pt;"> </span><span style="color: black; font-size: 11.0pt; mso-color-alt: windowtext;"> extends the
provisions tolling the Statute of Limitations until
September 4, 2020.</span><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal"><a name="_Hlk46903102"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></a></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>Appellate Division, Second Department<o:p></o:p></span></span></u></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;">Court
must articulate an explanation of the basis for its calculation of child
support based on parental income in excess of the statutory cap<o:p></o:p></span></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">In Matter of
Glick v Ruland, 2020 WL 4197090 (2d Dept.,2020) the Appellate Division held
that where combined parental income exceeds the statutory cap, in fixing the
basic child support obligation on income over the ceiling, the court has the
discretion to apply the factors set forth in Family Court Act </span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">
413(1)(f), or to apply the statutory percentages, or to apply both. The Family
Court must articulate an explanation of the basis for its calculation of child
support based on parental income in excess of the statutory cap. This
articulation should reflect a careful consideration of the stated basis for its
exercise of discretion, the parties</span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> circumstances, and its reasoning why there should or should
not be a departure from the prescribed percentage. In addition to providing a
record explanation for deviating or not deviating from the statutory formula, a
court must relate that record articulation to the factors set forth in Family
Court Act </span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> 413(1)(f).<o:p></o:p></span></b></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">Respondents
failed to demonstrate the existence of an operative parent‑child relationship
between the child and Joseph T. only evidence was that the child called Joseph
T. </span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">daddy</span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> during weekly supervised visits, and that they were
affectionate with each other <o:p></o:p></span></b></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">In Matter of
Luis V v Laisha PT, 184 A.D.3d 648, 125 N.Y.S.3d 133 (2d Dept.,2020) in 2017
the petitioner, filed a petition for a declaration that he was the father of
the child, who was born in 2016, and an order for genetic testing. The attorney
for the child and the respondent mother did not dispute that the petitioner was
the biological father, but opposed the petition on equitable estoppel grounds.
Family Court denied the petition, finding that he was equitably estopped from
asserting paternity because it would not be in the child</span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">s
best interests, as the child had an established parent‑child relationship with
the mother</span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">s husband, the respondent Joseph T. The Appellate Division
reversed. It held that the doctrine of equitable estoppel may </span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">preclude
a man who claims to be a child</span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">s biological father from asserting his paternity when he
acquiesced in the establishment of a strong parent‑child bond between the child
and another man. The doctrine protects the status interests of a child in an
already recognized and operative parent‑child relationship (Matter of Juanita
A. v. Kenneth Mark N., 15 N.Y.3d 1, 5, 904 N.Y.S.2d 293, 930 N.E.2d 214) and
has been applied in situations where an individual has assumed the role of a
father and where the petitioner putative father has neglected to assume such a
role.<span style="mso-spacerun: yes;"> </span>It found that the respondents
failed to demonstrate the existence of an operative parent‑child relationship
between the child and Joseph T. The only evidence of such a relationship came
from the child</span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">s foster mother, with whom he had lived since he was one year
old. The foster mother testified that the child called Joseph T. </span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">daddy</span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">
during weekly supervised visits, and that they were affectionate with each
other at the visits, Joseph T. never appeared in court on the petition and did
not testify at the hearing. Joseph T. and the child were not in a recognized
and operative parent‑child relationship. It held that the court should have
dismissed the equitable estoppel defense. <o:p></o:p></span></b></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><span style="font-family: arial;">Family
Court<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></u></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">The
purpose of a forensic evaluation is not to evaluate the child</span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b></span><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">s mental health <o:p></o:p></span></b></span></span></p>
<p class="MsoNormal"><span style="mso-bookmark: _Hlk46903102;"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"><o:p><span style="font-family: arial;"> </span></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">In<span style="mso-spacerun: yes;"> </span>R.M. v. C.C., 2020 WL 4187263 (Table), 2020
N.Y. Slip Op. 50825(U)(Fam Ct.,2020) the Court observed that the purpose of a
forensic evaluation in court for purposes of therapeutic interventions </span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">C</span></span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">
that is the parents</span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> responsibility. The purposes of a forensic evaluation is
solely to aid the court in making a best interests determination. See Salamone‑Finchum
v. McDevitt, 28 AD3d 670, 671 (2d Dept. 2006) (</span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">The
decision whether to direct a psychological or social evaluation in a child
custody dispute [to assist the court in addressing this issue] is within the
sound discretion of the [Family Court]</span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> (quoting Matter of Paul C. v. Tracy C., 209 AD2d 955, 955 (4th
Dept. 1994))); Pacheco v. Morales, 5 AD3d 387 (2d Dept. 2004)(</span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">Pursuant
to Family Court Act </span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'<span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";"> 251 and 252, one of the tools that a court may use in
determining what is in the best interests of a child is a forensic evaluation
of any person within its jurisdiction or the parent of any child within its
jurisdiction.</span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></span><span style="mso-bookmark: _Hlk46903102;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Yu Gothic UI";">).</span></span><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: arial;">July 16, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Covid19
Update<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11.0pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";">On
July 6th, the Governor signed </span></b><span style="color: black; mso-color-alt: windowtext;"><a href="http://url35.membercentral.com/ls/click?upn=KAEzj-2FTC9lrmuiGexn9L-2F02aDNHT5wk13LVgsUvl8aewXm2832douU9FWUK7IjRmNEk4OVGwCCLzzHwZUqHqiSIgBJWcCPDPiQtdXSaaItTDew4rtK7UsuQknMy91lA0C-2FN7r34gIQXVKtAx-2BrklCdvdjst-2BkR4LfSTx-2BbWt9XAK-2BIAFnfoSdRPiyq5XQdvkhUZQ_Ojkb0UCLlw3qjdi-2BX7dEPyPXOalef9U5v315P3sP3X9qdt2nu2dga0hvOFVhMZDuUT3e3rcrBTz-2F3xyJ0t9nx3O-2BxchE0Lp5NTzIkHon1-2Br0X9o13D9wl7O0czXO-2BhGKyMxlF3V7WJRj3c62vfNCJO7vtYHEMoB2TEZZgiyMwvrk8P2BTry1ynllgpBs0VtQL6uKPabatdPZ8cc-2B9AWds0VPcIf93VHG2IFiojLGg1I4gR9GC5V97-2FrQXNu7qyOaEdV3WE63LbmcRgtGvYyUVWv3ZR6bKHZ5-2FVTq8cAuX2M6mi-2BKd1d2JxLj4MVTkbaj0Yb86yyYEnCoOeR0VlOqTe9yWyG-2FRWrHr3j8h4NzDDw-3D" target="_blank"><b><span style="color: #1155cc; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">Executive Order 202.48</span></b></a></span><b><span style="color: black; font-size: 11.0pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";"> to continue the modification and suspension of
laws relating to the disaster emergency. The Executive Order extends the
provisions tolling the Statute of Limitations until August
5, 2020 and ends the suspension of several laws related to
criminal matters. </span></b><b><span style="color: #222222; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><span style="color: #222222; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;"><b> <o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Appellate Division, First
Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="background: white;"><b><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Former boyfriend who
voluntarily provided Sperm without any restriction or agreement not permitted
to raise defense to paternity of equitable estopped <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Claudia B v Darrin M, --- N.Y.S.3d ----,
2020 WL 3848213, 2020 N.Y. Slip Op. 03861(1<sup>st</sup> Dept.,2020) after the
parties relationship ended, petitioner asked respondent to donate sperm so that
she could conceive a child. In October 2009, petitioner sent respondent a draft
written agreement which stated that respondent would have no parental rights or
responsibilities as to the child and would not be named as the father on the
birth certificate, and that petitioner would not seek child support from
respondent. While they were still negotiating terms, respondent donated 17
vials of semen to a fertility center. Respondent contended that he stopped
participating in the endeavor, but took no further actions because he was
purportedly told by the fertility center that petitioner could not use his
semen samples. In March 2013, petitioner gave birth to a child. In April 2017,
petitioner filed a paternity petition seeking to have respondent declared the
father of her child. Respondent argued that petitioner was equitably estopped
from bringing the paternity claim because the parties intended that he be a sperm
donor only, without any legal rights or obligations to the child. The motion
court found that respondent’s estoppel claim was inconsistent with New York
law, and directed that he submit to DNA testing. After testing revealed
respondent to be the father of the child, the court entered an order of
filiation. On appeal, respondent argued that petitioner should be equitably
estopped from seeking to have him declared the father of the child. The
Appellate Division held that it need not decide whether, under New York law,
estoppel is available to foreclose a mother from asserting paternity as to a
known sperm donor, because even if it were, respondent’s claim would fail. To
prevail on estoppel grounds, the moving party bears the burden of proving, by
clear and convincing evidence, a right to the relief sought. Even assuming the
truth of respondent’s factual assertions, he failed to meet his burden.
Contrary to respondent’s contention, there was no binding enforceable oral or
written agreement between the parties, either before or after respondent
donated his sperm. It rejected Respondent’s reliance on Matter of Joseph O. v.
Danielle B., 158 A.D.3d 767, 71 N.Y.S.3d 549 [2d Dept. 2018] and Matter of
Christopher YY. v. Jessica ZZ., 159 A.D.3d 18, 69 N.Y.S.3d 887 [3d Dept. 2018],
lv denied 31 N.Y.3d 909, 2018 WL 2924972 [2018]. These cases involved
preconception agreements with reciprocal waivers of paternity and child support
claims between a same-sex married female couple, on the one hand, and a known
sperm donor on the other. The courts in those cases applied equitable estoppel
to thwart the donor’s paternity claims because they threatened to harm the
parent/child bonds that had developed, a fact pattern not presented here.
Neither case supported respondent’s claim that an unsigned, non-final
preconception agreement can be used to equitably estop a mother from asserting
paternity as to a known sperm donor.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">First Department
holds it is proper to impute income based on access to parents vacation homes<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In DeNiro v DeNiro, --- N.Y.S.3d ----, 2020 WL
3848156 (1<sup>st</sup> Dept.,2020) the Appellate Division held that Supreme
Court providently exercised its discretion in imputing income to the parties
based on its credibility determinations and evidence adduced at trial. The
court could consider defendants access to her father’s vacation homes, payment
of travel and entertainment expenses through work, and employment at her
father’s businesses in imputing income to her.<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: arial;">Appellate Division, Second
Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal" style="background: white;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11.0pt;">Appellate
Division awards counsel fees for services rendered in pursuing counsel fee
application in light of the defendant’s persistent refusal to tender a
meaningful contribution to the plaintiff’s counsel fee obligations and his
retaliatory cross motion</span></b><b><span style="font-size: 11.0pt;">. <span style="mso-spacerun: yes;"> </span></span></b><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;"><o:p></o:p></span></strong></span></p>
<p class="MsoNormal"><b><u><span style="color: red;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='mso-ansi-language:
EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Marchese v Marchese, --- N.Y.S.3d ----, 2020 WL 3551814, 2020 N.Y. Slip Op.
03655 (2d Dept.,2020) a settlement was reached on the morning of the first day
of trial. The overall value of plaintiff’s agreed-upon equitable distribution
was over $4.6 million, inclusive of the value of the former marital residence,
valued at $500,000, The defendant’s equitable distribution was approximately
$10 million. The defendant agreed to pay taxable maintenance to the plaintiff
of $10,000 per month through February 2020, $15,000 per month thereafter
through February 2024, and $20,000 per month thereafter through February 28,
2027, at which time all maintenance would terminate.<span style="mso-spacerun: yes;"> </span>As of the time of the execution of the
agreement, the plaintiff had incurred counsel fees of approximately $516,000,
of which the defendant had paid $65,000 by court order. In contrast, the
defendant incurred counsel fees of more than $900,000, nearly doubling the fees
incurred by the plaintiff. The defendant had also paid more than $100,000 to a
court-appointed expert valuation firm. The plaintiff had retained her own
expert valuation firm and the defendant had paid that firm $25,000. Supreme
Court granted the plaintiff’s motion to the extent of awarding her counsel fees
in the sum of only $100,000 and failed to award her any expert fees.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>The
Appellate Division held that denial of the plaintiff’s motion to compel the
defendant to pay for the entirety of her valuation expert (FRA)<span style="mso-spacerun: yes;"> </span>fees was not a sound exercise of discretion.
The defendant’s business interests were complicated and it was the plaintiff’s
burden, as the non-titled spouse, to establish the extent to which these
business interests constituted marital property and their value. While the
Supreme Court appointed a qualified expert firm to value the defendant’s
business interests, the record reflected that the plaintiff had valid reasons
to question aspects of the court-appointed expert’s report as well as to obtain
a lifestyle analysis. Given the complexity of the issues, the burden of proof
which was upon the plaintiff, and the relative financial positions of the
parties, and the quality and result of the work undertaken by FRA, the
plaintiff’s submissions warranted an award to her in the sum of $71,473.60 to
pay for the balance of the fees attributable to FRA’s services. In reaching
this determination, it was undisputed that FRA’s work at the eve of trial led
to significant increases in the valuation of the marital estate and facilitated
the settlement of the matter.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In awarding the plaintiff only a portion of the fees
requested, the Supreme Court considered that the defendant was the monied
spouse. The defendant did not rebut the presumption in favor of an award of
counsel fees to the plaintiff. The Appellate Division held that the counsel fee
award was inadequate. It found that Supreme Court gave undue weight to the
financial resources available to the plaintiff. A less-monied spouse should not
be expected to exhaust all, or a large portion, of available finite resources
available, particularly where the more affluent spouse is able to pay his or
her own legal fees without any substantial lifestyle impact. The plaintiff was
approximately 63 years old at the time of the proceedings below, had a
debilitating medical condition, and was unable to work. In contrast, the
defendant was 48 years old, in good health, and had a proven track record of
average annual earnings in excess of $2 million. Of the plaintiff’s equitable
distribution, only approximately ½ was in the form of liquid assets, and her
overall share of the distributed assets was significantly less than that of the
defendant. The plaintiff’s taxable maintenance was modest in comparison with
the defendant’s earnings. Given the significant disparity between the parties’
assets and incomes, as well as the significant disparity in their ages and
health conditions, the defendant was in the superior position to bear the
expenses of this litigation. The Court concluded that the defendant should be
responsible for the balance of the plaintiff’s counsel fees and expenses, net
of his prior payments, in connection with the underlying litigation, which
amounted to $451,188.15.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In addition, the Appellate Division awarded $30,000
counsel fees for services rendered in pursuing the<span style="mso-spacerun: yes;"> </span>counsel fee application. In the context of
this case, an award was appropriate in light of the defendant’s persistent
refusal to tender a meaningful contribution to the plaintiff’s counsel fee
obligations. It also considered the defendant’s making of a cross motion that
sought to impose on the plaintiff responsibility for 50% of the fees of the
court-appointed valuation firm and 100% of her own fees. The cross motion could
only be viewed as retaliatory.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11.0pt;">Court should not
consider change in custody in the absence of an application for that relief
with notice to the parent </span></b><strong><span style="background: white; color: red; font-size: 11pt; letter-spacing: 0.6pt;"><o:p></o:p></span></strong></span></p>
<p class="MsoNormal"><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of Ross v Ross, --- N.Y.S.3d ----, 2020 WL
3551747, 2020 N.Y. Slip Op. 03668 (2d Dept.,2020) mother filed a petition for
custody of the child, and the father cross-petitioned for custody. The hearing
on the petitions concluded on June 12, 2018, and the Family Court reserved
decision. On that same day, the Family Court issued a temporary order of
parental access. The father filed a violation petition alleging that the mother
had violated the June 12, 2018, temporary order of parental access in that when
the father attempted to exercise parental access he discovered that the mother
and the child were gone. He suspected that the mother had moved with the child
to Sweden. The Appellate Division held the subsequent conditional directive of
the Court<span style="mso-spacerun: yes;"> </span>that sole legal and physical
custody of the child shall be transferred to the father if the mother did not
return the child to New York City within 30 days was meant to punish the mother
and was not based on the court’s determination of the best interests of the
child. The court should not have considered a change in custody in the absence
of an application for that relief with notice to the mother. The court’s
conditional award of custody to the father was improper in light of the court’s
determination otherwise that it was in the child’s best interests to remain in
the custody of the mother.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Divison, Third Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;"><span style="mso-tab-count: 1;"> </span></span></b><b><span style="color: red; font-size: 11.0pt;">Costs
involved in providing vacation home for child to use occasionally does not
justify a finding that Child Support Amount Calculated by the CSSA formula is
unjust or inappropriate.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In Donna E v Michael F, --- N.Y.S.3d
----, 2020 WL 3847492 (3d Dept.,2020) in determining child support Supreme
Court chose to deviate from the CSSA formula, finding that the calculation of
$1,024 as the husband’s basic child support obligation was unjust and
inappropriate. As an explanation for doing so, the court stated its concern
that mandating the full amount of support from the husband would likely have
the effect of forcing the sale of the husband’s recreational cabin. This, the
court reasoned, would result in the loss of an important part of his
relationship with the child, thus effecting the physical and emotional needs of
the child to spend quality outdoor time with the husband. Moreover, according
to Supreme Court, the sale of the property would constitute a diminution of the
standard of living that the child would have enjoyed had the marriage not
dissolved. The wife asserted on appeal that Supreme Court erred, as there was
no reasonable basis in law or fact to deviate. The Appellate Division agreed
with her. The parties each testified that they struggled financially, living
“paycheck to paycheck.” However, the husband did not testify that he would be
forced to sell his cabin. Furthermore, this Court had “consistently held that
the costs of providing suitable housing, clothing and food for a child during
custodial periods do not qualify as extraordinary expenses so as to justify a
deviation from the presumptive amount” of child support. The costs involved in
providing a vacation home for a child to use occasionally do not justify a
deviation. Lastly, in its discretion, the court did not conduct a Lincoln
hearing and, as such, the child’s wishes or desires with regard to spending
time at the cabin are unknown. Nor was there any expert testimony that the
child’s physical or emotional needs would suffer if she did not spend time at
the cabin. Thus, that deviation was not warranted<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Court cannot
impose jail sentence once contempt purged by payment before imposition of the
sentence<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In
Essex County Child Support Enforcement Unit, on Behalf of Quackenbush, v
Crammond, -- N.Y.S.3d ----, 2020 WL 3847470 (3d Dept.,2020) the Appellate
Division held that Family Court exceeded its authority by imposing a 120–day
jail sentence for violation of the prior support order and vacated the sentence
where the contempt was purged before imposition of the sentence. Upon a finding
of a willful violation, Family Court is authorized to impose a sentence of
commitment up to six months (see Family Ct Act § 454[3][a]). “Such a sentence
is in the nature of a civil contempt, which ‘may only continue until such time
as the offender, if it is within his or her power, complies with the support
order’”.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">2010 amendment
to Domestic Relations Law § 236[B][9] applies where pre-2010 child support
agreement modified after effective date of amendment<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Henry v Bell, --- N.Y.S.3d ----, 2020 WL
3847620, 2020 N.Y. Slip Op. 03829 (3d Dept.,2020) the Appellate Division held
that the<span style="mso-spacerun: yes;"> </span>2010 amendment to Domestic
Relations Law § 236, under which a “court may modify an order of child support
where ... three years have passed since the order was entered, last modified or
adjusted” applies where a support order entered before the amendment is
modified by an order made after the amendment. Accordingly, the mother’s
petition for an upward modification of the father’s child support obligation
was properly analyzed in the context of the 2010 amendment.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Where Court
permitted mother to testify telephonically without being sworn, it was error
for to rule that it would not credit the mother’s testimony given that it was
not sworn<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Burnett v Andrews-Dyke, --- N.Y.S.3d ----,
2020 WL 3847447, 2020 N.Y. Slip Op. 03838 (3d Dept.,2020) a default order was
entered finding the mother in willful violation of a prior support order, a
three-month period of incarceration was recommended, and the matter was
referred to Family Court for confirmation. Family Court granted the mother’s
application to appear telephonically at the confirmation hearing based upon her
representation that she was unemployed, homeless and physically and financially
unable to travel to personally appear in New York. Following the May 2019
confirmation hearing, Family Court ruled that the mother’s testimony was not
competent because it was not sworn. The court issued an order confirming the
finding of a willful violation and ordered that the mother be committed to jail
for three months, subject to payment of a set purge amount. The Appellate
Division reversed. It recognized that Family Ct. Act § 433 gives Family Court
the discretion to permit a party in a child support proceeding to testify by
telephone where it determines that “it would be an undue hardship for such
party ... to testify ... at the [F]amily [C]ourt where the case is pending” (22
NYCRR 205.44[b]). Unsworn testimony, except in certain instances not applicable
here, is generally inadmissible. Family Court’s order granting the mother’s
application to appear telephonically did not condition her appearance upon
testifying from a location where a notary would be available to swear her in.
At the hearing, when the mother’s counsel called her to testify, Family Court noted
that the mother was not in a location where a notary was present to administer
an oath, but then permitted her to be questioned, without providing any
indication that her answers would later be considered incompetent based upon
the lack of an oath. Having permitted the mother to give unsworn testimony
telephonically, it was error for Family Court to thereafter sua sponte rule,
nearly 1½ months after the hearing, that it would not credit the mother’s
testimony given that it was not sworn.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-tab-count: 1;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="mso-spacerun: yes;"> </span><o:p></o:p></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: arial;">July 1, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><strong><span style="background: white; color: #323e4f; font-size: 11pt; letter-spacing: 0.6pt;">The “Outside Counsel” column which appears on page 5 of the
July 2, 2020 edition of the New York Law Journal contains an article titled </span></strong><strong><span style="background: white; font-size: 11pt;">"</span></strong><b><span style="background: white; color: red; font-size: 11.0pt;">Limiting the Scope of
Representation in Family Court Proceedings, , by Joel R. Brandes and Chris
McDonough, Esq</span></b><b><span style="background: white; font-size: 11.0pt;">. </span></b><a href="https://www.nysdivorce.com/uploads/8/1/3/4/81349156/limiting_the_scope_of_representation_final__1_.pdf" target="_blank"><b><span style="background: white; color: windowtext; font-size: 11.0pt;">Click here to read the article</span></b></a><b><span style="background: white;">.</span></b><strong><span style="background: white; font-size: 11pt;"> </span></strong><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;"><o:p></o:p></span></strong></span></p>
<p class="MsoNormal"><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
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<p class="MsoNormal"><strong><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><a href="http://west.thomson.com/productdetail/125732/15918618/productdetail.aspx"><span style="color: #f70303; font-size: 11.0pt;">Law and The Family New York Forms, 2020
Edition </span><span style="color: #5199a8; font-size: 11.0pt;">(New
York Practice Library, 5 Volumes, July 2020) By Joel R. Brandes</span></a><span style="font-size: 11pt;"> is now available
from<span style="mso-spacerun: yes;"> </span>Thomson Reuters</span><span style="font-size: 11.0pt;"><br />
</span><span style="color: #7b8c89; font-size: 11pt;">(</span><a href="https://store.legal.thomsonreuters.com/law-products/Treatises/Law-and-The-Family-New-York-Forms-2019-ed-New-York-Practice-Library/p/106618913" target="_blank"><span style="color: #5199a8; font-size: 11.0pt;">For information
click on this link to go to Thomson Reuters</span></a><span style="color: #7b8c89; font-size: 11pt;">).</span><span style="font-size: 11.0pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="background: white;"><span style="font-family: arial;"><strong><span style="color: black; font-size: 11pt;"></span></strong><strong><span style="font-size: 11pt;"><o:p></o:p></span></strong></span></p>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal"><b><u><span style="color: red;"><span style="font-family: arial;">Court of Appeals amends Rules
of Practice effective May 27, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="background: white; color: black; font-size: 11.0pt; mso-color-alt: windowtext;">The Court of Appeals has amended its Rules of Practice to
require, for motions and responses to Rule 500.10 jurisdictional inquiries,
submissions in digital format as companions to the printed papers filed and
served in accordance with the Court’s Rules of Practice. The Court has also
amended its Rules of Practice to reduce the number of printed copies that must
be filed for civil motions for leave to appeal, reargument motions, and papers
in opposition to those motions. The amended Rules were<span style="mso-spacerun: yes;"> </span>effective May 27, 2020. Any responses to Rule
500.10 jurisdictional inquiries requested on or after May 27, 2020 and any
motions returnable on or after June 1, 2020 must comply with the amended Rules.
A full copy of the notice to the bar, and relevant portions of the proposed
amended Rules, can be </span></b><a href="file:///C:/Users/Joel%20Brandes/Dropbox/Dropbox%20Bits%20&%20Bytes%20Drafts/accessed%20at"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;">accessed at </span></b></a><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span></span></b><a href="http://www.nycourts.gov/ctapps/news/nottobar/nottobar05112020.pdf"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;">http://www.nycourts.gov/ctapps/news/nottobar/nottobar05112020.pdf</span></b></a><b style="mso-bidi-font-weight: normal;"><span style="background: white; color: black; font-size: 11.0pt; mso-color-alt: windowtext;">.</span></b><strong><span style="font-size: 11pt;"> </span></strong><strong><span style="font-size: 11pt;"><o:p></o:p></span></strong></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><strong><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><strong><span style="font-size: 11pt;">Pursuant to Rule 500.2(b), the Court of
Appeals requires the submission of motion and opposition papers and Rule 500.10
Jurisdictional Responses in digital format. Parties who have received a motion
instruction letter or Jurisdictional Inquiry letter from the Clerk’s Office
should use this Companion Filing Upload Portal to submit motion and opposing
papers and Rule 500.10 Jurisdictional Responses. The portal can be accessed at </span></strong><a href="https://www.nycourts.gov/ctapps/courtpass/MotionUpload.aspx"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;">https://www.nycourts.gov/ctapps/courtpass/MotionUpload.aspx</span></b></a><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><br />
<br />
<strong><span style="mso-spacerun: yes;"> </span>Uploading digital submissions to this
Portal does not satisfy the service or filing due dates by operation of the
CPLR or the Court’s Rules of Practice. The filer is responsible for meeting any
applicable CPLR time limit by serving and filing as provided by the CPLR. The
filer is responsible for meeting the Court’s applicable due dates by filing the
required number of paper documents with the Clerk’s Office.</strong><br />
<br />
<strong><span style="mso-spacerun: yes;"> </span>Technical specifications and
instructions for submission in the Court of Appeals<span style="mso-spacerun: yes;"> </span>can be </strong></span></b><a href="file:///C:/Users/Joel%20Brandes/Dropbox/Dropbox%20Bits%20&%20Bytes%20Drafts/accessed"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;">accessed</span></b></a><strong><span style="font-size: 11pt;"> at </span></strong><a href="https://www.nycourts.gov/ctapps/courtpass/TechSpecsCFUP.htm"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;">https://www.nycourts.gov/ctapps/courtpass/TechSpecsCFUP.htm</span></b></a><strong><span style="font-size: 11pt;"> </span></strong><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><br />
<br />
<strong><span style="mso-spacerun: yes;"> </span>This Portal is for uploading
companion digital submissions of motions and Rule 500.10 Jurisdictional
Responses only. Those wishing to upload companion digital submissions of briefs
and record materials on pending appeals on the normal course or sua sponte
merits (SSM) track (Rule 500.11) must do so through the </strong></span></b><a href="https://www.nycourts.gov/ctapps/courtpass/"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;">Court-PASS system</span></b></a><strong><span style="font-size: 11pt;"> at </span></strong><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span></span></b><a href="https://www.nycourts.gov/ctapps/courtpass/"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;">https://www.nycourts.gov/ctapps/courtpass/</span></b></a><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span>Court
pass digital filing frequently asked questions<span style="mso-spacerun: yes;">
</span>are posted on the Courts website at </span></b><a href="https://www.nycourts.gov/ctapps/digfilingfaq.htm"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;">https://www.nycourts.gov/ctapps/digfilingfaq.htm</span></b></a><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; letter-spacing: .6pt;"><o:p></o:p></span></b></span></p>
<h1 align="center" style="background: white; line-height: normal; text-align: center;"><span style="color: black; font-size: 11pt; letter-spacing: 0.6pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></h1>
<p class="MsoNormal" style="background: white;"><strong><o:p><span style="font-family: arial;"> </span></o:p></strong></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, Third Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">New York court
may modify an out‑of‑state custody order that is valid under other state’s law
but not in conformance with New York law<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Matter of Paul
JJ., v. Heather JJ., Respondent, 2020 WL 3271765 (3<sup>rd</sup> Dept.,2020)
the Appellate Division held that<span style="mso-spacerun: yes;"> </span>a New
York court may, as a matter of law, modify an out‑of‑state custody order that
is valid under the other state’s law but is not in conformance with New York
law, and that the party seeking a modification of such an order must adhere to
the typical standard and demonstrate a change in circumstances before the court
can modify the prior order. <o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">Under
the UCCJEA, (Domestic Relations Law </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b><b><span style="font-size: 11.0pt;"> 77</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">B</span></span></b><b><span style="font-size: 11.0pt;">b [1]; and subject to exceptions not relevant here, a
New York court must recognize and enforce a registered child custody order
issued in another state, but may only modify such an order in accordance with
title II of the UCCJEA, which includes Domestic Relations Law </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b><b><span style="font-size: 11.0pt;">
76</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">B</span></span></b><b><span style="font-size: 11.0pt;">b (see Domestic Relations Law </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b><b><span style="font-size: 11.0pt;">
77</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">B</span></span></b><b><span style="font-size: 11.0pt;">e [2]; 28 USC </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b><b><span style="font-size: 11.0pt;"> 1738A). Thus, New York is required to recognize and
enforce the 2007 judgment even though its visitation provision would have been
improper if issued by a New York court. The U.S. Constitution</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
Full Faith and Credit Clause requires all courts to give full faith and credit
to the judicial proceedings in every other state (see U.S. Const, art IV, </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b><b><span style="font-size: 11.0pt;">
1).4 When courts of this state uphold the validity of a foreign divorce decree,
they must recognize all provisions of the decree, with exceptions for, among
other things, the rare instance where a provision of the original decree
violates the public policy of this state; in this context, public policy is not
determined by reference to laws and court decisions alone, and </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">foreign
judgments generally should be upheld unless enforcement would result in the
recognition of a transaction which is inherently vicious, wicked or immoral,
and shocking to the prevailing moral sense</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;"> (Greschler v. Greschler, 51 N.Y.2d 368, 377, 434
N.Y.S.2d 194, 414 N.E.2d 694 [1980]. Although the UCCJEA provides jurisdiction
for New York courts to modify an out‑of‑state order, it does not prescribe the
standard to be used in a modification proceeding. Instead, we must look to the
substantive law of New York and adhere to the ordinary standard for
modification of a custody and visitation order. Thus, to modify the 2007
judgment, the father was first required to demonstrate a change in
circumstances since the entry of that judgment that would warrant undertaking a
best interests analysis.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Divison, Fourth Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Supreme Court
cannot properly find<span style="mso-spacerun: yes;"> </span>party in criminal
contempt for perjury based on<span style="mso-spacerun: yes;"> </span>testimony
in Family Court<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">In
Ritchie v Ritchie, 2020 WL 3160969 (4<sup>th</sup> Dept.,2020) the Appellate
Division agreed with the mother that the court erred in sua sponte directing
her to </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">pay a $2,500 fine to the [f]ather for her perjury in
this matter ... and if the fine is not permitted by law, [directing that] ...
the fine [be converted] into an award of damages.</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">
The court did not state whether it was sanctioning the mother for frivolous
conduct or for civil or criminal contempt. The court summarily punished the
mother by sanctioning her after it determined that she committed perjury during
her testimony before a Judicial Hearing Officer in Family Court with respect to
the temporary order of protection and during her testimony at the hearing on
the petition before Supreme Court. Assuming, arguendo, that perjury would
support a finding of contempt, the court could not properly find the mother in
criminal contempt based on her testimony in Family Court, nor could the court
summarily punish the mother for civil or criminal contempt based on that
testimony, inasmuch as it occurred out of the court’s </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">immediate
view and presence</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">. Insofar as the order may be deemed to sanction the
mother for civil or criminal contempt that occurred in the presence of Supreme
Court, because </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">due process requires that ... the contemnor be
afforded </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">></span></span></b><b><span style="font-size: 11.0pt;">an opportunity to be heard at a meaningful time and in
a meaningful manner</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;"> </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">, and the court failed to provide notice that it was
considering finding the mother in contempt or an opportunity to be heard
thereon, the court erred in imposing such sanction. The court had no authority
to sanction the mother on the ground that she engaged in frivolous conduct.
Assuming, arguendo, that sanctions for frivolous conduct may be based on a
party</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s perjury, it held that the regulation permitting the
imposition of such sanctions specifically provides that it </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">shall
not apply to ... proceedings in the Family Court commenced under article ... 8
of the Family Court Act</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;"> (22 NYCRR 130‑1.1 [a]. This matter was commenced in
Family Court under article 8 of the Family Court Act, and thus no such sanction
was authorized.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></strong></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: arial;">June 16, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Covid19
Executive Order<o:p></o:p></span></span></u></b></p>
<p><span style="font-family: arial;"><b><span style="font-size: 11pt;">Executive
order 202.38 extended for another 30 days the executive order that
temporarily tolls all statutes of limitations during the coronavirus public health
crisis The </span></b><a href="https://info.nysba.org/e2t/tc/VVMkWg3GxmlzW1tZ3t53BNz9LVcSh174b4y5sN56dXgp5nxG7V3Zsc37CgD4zW2ycBZ_8pyBd3N3GPD3XJPn5yVDHZ6w8Vf0RkW5hKjpr2sbrNrW72gphD17t3h9W8ZLBc03jn1zfV4HG7g2Z-GgzW1B3QNR38zCbdW88Pj7x47FQBnW4yMxxH6XrTGSVMTSj93X5nqYW3mT-Fc8K5kjTW62M-8S8fpWlMW6hYBCD52_bZyW5by0jy46cTzXW80HKmG3fF65kW8pXWly7Q44ZyW6rPP7Z3T3BYlW6d1SQ76P1JSJW8pxvGb5wpKVRW5NGPTW96r1w2W2-zGbv1WpvhMW77f1FZ60Gqx6W3f5fm72TDHWNW1FZmcK7G5XnDW119xvN7qlkhJW7FC_Nj5_lx9hW88Nj_m2JwBnPW5zqnsm4S_6rFW6j0Nrv8CKpgVW8KrmKw8wXKFcW5TCfCD17q6Gv3gjm1" target="_blank"><b><span style="color: windowtext; font-size: 11pt;">latest order</span></b></a><b><span style="font-size: 11pt;"> extends through July 6. It<span style="mso-spacerun: yes;"> </span>tolls “any specific time limit for the
commencement, filing, or service of any legal action, notice, motion, or other
process or proceeding, as prescribed by the procedural laws of the state,
including but not limited to the criminal procedure law, the Family Court act,
the civil practice law and rules, the Court of Claims act, the Surrogate’s
Court procedure act, and the uniform court acts, or by any other statute, local
law, ordinance, order, rule, or regulation, or part thereof.” It also extended
his previous order pertaining to remote witnessing, which clarifies the
requirements needed to allow the remote signings of such documents as deeds,
wills, power of attorney forms and healthcare proxies. It also extended
an </span></b><a href="https://info.nysba.org/e2t/tc/VVMkWg3GxmlzW1tZ3t53BNz9LVcSh174b4y5sN56dXgp5nxG7V3Zsc37CgKkwW8jJk4H4vlhTzW5pPD29933_HYW7tKK8g6s3LLdW4KYWbn7mB-TcW6jFKLn1zCsQBW40GBZ16xh2YhVrvkr05wZY7DN6fLtSCbKkcRV8KVyf67nFMDW1h0n2-63jTdKW4kKJMX1sT1NGW7mf9SD4lD6w1W18p-dC1pv3xMW2lNBvW7S6l7WW1D0Dnd6y5ZPPW4RSgRv2p-rjBW1qk0Fn5rYH0rW5Y65Ts94x7-FN1cQzL0KSWLYVdQwKF4t86dfW3_0vjb75rnS3W2rHyQQ74MkkFW1QQ9gS5gxTNFW93pC9r66fsBnMcVCsYJZjNQVVfC-X3D4MDSN7MyrW4hggztW2GZ34w27404ZW5QVFXl8w_zVdN5mZyX3HfW1kW6_sshB6l4wTrW492ytj11sV5S3km31" target="_blank"><b><span style="color: windowtext; font-size: 11pt;">earlier executive order</span></b></a><b><span style="font-size: 11pt;"> pertaining to the
criminal procedure law.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;"> Appellate
Divison, Third Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">New York court
may<span style="mso-spacerun: yes;"> </span>modify an out‑of‑state custody order
that is valid under another state’s law but not in conformance with New York
law<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>In Matter of Paul JJ., v. Heather JJ.,
Respondent, 2020 WL 3271765 (3<sup>rd</sup> Dept.,2020) the Appellate Division
held that<span style="mso-spacerun: yes;"> </span>a New York court may, as a
matter of law, modify an out‑of‑state custody order that is valid under the
other state’s law but is not in conformance with New York law, and that the
party seeking a modification of such an order must adhere to the typical
standard and demonstrate a change in circumstances before the court can modify
the prior order.<span style="mso-spacerun: yes;"> </span>Under the UCCJEA,
(Domestic Relations Law </span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span><span style="font-size: 11.0pt;"> 77</span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">B</span></span><span style="font-size: 11.0pt;">b [1]; and subject to exceptions not relevant here, a
New York court must recognize and enforce a registered child custody order
issued in another state, but may only modify such an order in accordance with
title II of the UCCJEA, which includes Domestic Relations Law </span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span><span style="font-size: 11.0pt;">
76</span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">B</span></span><span style="font-size: 11.0pt;">b (see Domestic Relations Law </span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span><span style="font-size: 11.0pt;">
77</span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">B</span></span><span style="font-size: 11.0pt;">e [2]; 28 USC </span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span><span style="font-size: 11.0pt;"> 1738A). Thus, New York is required to recognize and
enforce the 2007 judgment even though its visitation provision would have been
improper if issued by a New York court. The U.S. Constitution</span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span><span style="font-size: 11.0pt;">s
Full Faith and Credit Clause requires all courts to give full faith and credit
to the judicial proceedings in every other state (see U.S. Const, art IV, </span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span><span style="font-size: 11.0pt;">
1).4 When courts of this state uphold the validity of a foreign divorce decree,
they must recognize all provisions of the decree, with exceptions for, among
other things, the rare instance where a provision of the original decree
violates the public policy of this state; in this context, public policy is not
determined by reference to laws and court decisions alone, and </span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span><span style="font-size: 11.0pt;">foreign
judgments generally should be upheld unless enforcement would result in the
recognition of a transaction which is inherently vicious, wicked or immoral,
and shocking to the prevailing moral sense</span><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span><span style="font-size: 11.0pt;"> (Greschler v. Greschler, 51 N.Y.2d 368, 377, 434
N.Y.S.2d 194, 414 N.E.2d 694 [1980]. Although the UCCJEA provides jurisdiction
for New York courts to modify an out‑of‑state order, it does not prescribe the
standard to be used in a modification proceeding. Instead, we must look to the
substantive law of New York and adhere to the ordinary standard for
modification of a custody and visitation order. Thus, to modify the 2007
judgment, the father was first required to demonstrate a change in
circumstances since the entry of that judgment that would warrant undertaking a
best interests analysis.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11.0pt;">If<span style="mso-spacerun: yes;"> </span>parent demonstrates that the default in
neglect proceeding resulted from a deprivation of </span></b><b><span style="color: red; font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="color: red; font-size: 11.0pt;">fundamental due process rights,</span></b><b><span style="color: red; font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="color: red; font-size: 11.0pt;"> the default is a nullity and no showing of a meritorious defense is
required<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">In Matter of Arra L..183
A.D.3d 1027, 123 N.Y.S.3d 294, 2020 N.Y. Slip Op. 02829<span style="mso-spacerun: yes;"> </span>(3d Dept.,2020) petitioner commenced a
neglect proceeding alleging that respondent had neglected her children.
Respondent attended several court conferences without the benefit of counsel
until, in April 2018, she was absent without explanation for a conference. Upon
petitioner</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s application, Family Court declared respondent in
default and issued an order adjudicating her to have neglected the children.
Respondent</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s motion to vacate the default order was denied and
the Appellate Division reversed. It held that a parent has a right </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">to
be present at every stage of</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;"> a Family Ct Act article 10 proceeding as a matter of
due process, but that right </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">is not absolute</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">. Family Ct Act </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span></b><b><span style="font-size: 11.0pt;"> 1042 provides that </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">a
court may proceed with a hearing ... in a parent</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
absence, so long as the subject child is represented by counsel, and the absent
parent may thereafter move to vacate the resulting order and schedule a
rehearing</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;"> Vacatur of that order would ordinarily be warranted
if, upon motion, the parent demonstrated </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">a meritorious defense to the petition, unless ... [he
or she] willfully refused to appear at the hearing</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">.
If the parent demonstrates that the default itself resulted from a deprivation
of his or her </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">fundamental due process rights,</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">
however, the default is a nullity and no showing of a meritorious defense is
required. In respondent</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s motion to vacate the default order of fact‑finding,
she explained her absence from the conference, but failed to set forth a
meritorious defense. Although respondent was arguably on notice of the April
2018 conference, she did not receive notice that a potential fact‑finding
hearing might be conducted at it so as to satisfy due process. Despite the
references in the order of fact‑finding to an inquest, there was no dispute
that Family Court departed from </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">the proper course</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;"> of conducting a hearing in respondent</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
absence by accepting the allegations in the petition as proven by virtue of
respondent</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s default. It would offend due process to hold that
respondent </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">default[ed] in attending a hearing that she did not
know was going to happen and did not, in fact, happen. </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">Notwithstanding
the failure of respondent to articulate a meritorious defense, Family Court
abused its discretion in denying respondent</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
motion.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><u><span style="color: red; font-size: 11.0pt;">Supreme Court</span></u></b><b><u><span style="font-size: 11.0pt;"><o:p></o:p></span></u></b></span></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11.0pt;">Supreme Court
Sanctions Litigant for<span style="mso-spacerun: yes;"> </span>vexatious/abusive
litigation, also known as </span></b><b><span style="color: red; font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="color: red; font-size: 11.0pt;">paper</span></b><b><span style="color: red; font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="color: red; font-size: 11.0pt;"> or </span></b><b><span style="color: red; font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="color: red; font-size: 11.0pt;">separation</span></b><b><span style="color: red; font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="color: red; font-size: 11.0pt;"> abuse, by denying credit for 6 years of pendente lite payments<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">In Jessica T v Kieth T,
2020 WL 3163793 (Sup Court, 2020) the Supreme Court observed that sanctions may
be awarded if conduct is frivolous or if it<span style="mso-spacerun: yes;">
</span>"is undertaken primarily to delay or prolong the resolution of the
litigation, or to harass or maliciously injure another" (22 NYCRR 130‑1.1
[c] [2] ) or if such conduct "asserts material factual statements that are
false". In light of the fact that the defendant abused the Plaintiff
throughout the litigation with his manipulation of the court process by his
blatant disregard of the truth, pressing frivolous claims, wasting court time
with witnesses that had at best merely uninformed opinions, causing drawn out
conferences and examinations of witnesses that were not probative, making
specious arguments and accusations including parent alienation, refusing to pay
timely support payments until threatened with incarceration, refusing to help
save the marital home from foreclosure, harassing and annoying the Plaintiff
and J., refusing to pay his share of the court‑ordered business evaluation
which precluded the Plaintiff from demonstrating any potential increase in
business' value during the marriage, and by prolonging this case by creating
unnecessary litigation, the court sanctioned the defendant by awarding
financial compensation to the Plaintiff. In order to do justice in compensate
the Plaintiff for some of the injuries that the Plaintiff<span style="mso-spacerun: yes;"> </span>suffered as a result of the Defendant's
malicious, vexatious/abusive litigation, and as a sanction for the Defendant's
completely frivolous conduct throughout the case and<span style="mso-spacerun: yes;"> </span>during the trial, the Court awarded the
Plaintiff ten years of maintenance payments. Furthermore, it held that<span style="mso-spacerun: yes;"> </span>while normally the years and amounts paid
during the pendente lite period are accounted for in formulating post‑divorce
maintenance,<span style="mso-spacerun: yes;"> </span>because of the Defendant's
own actions and vexatious litigation which purposefully attenuated the
proceeding, and the need to compensate the Plaintiff, the Defendant would
receive no credit for the approximately last 6 years of pendente lite payments.
In a footnote the Court described vexatious/abusive litigation, also known as </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">paper</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">
or </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">separation</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;"> abuse, as involving the perpetrator</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
filing of frivolous motions and lawsuits to maintain a hold over his or her
victim</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s life after the separation and the commencement of
the divorce proceeding. Litigation is the only tool left for the abuser to use
to keep the victim face to face with him or her. This tool further traumatizes
the victims of intimate/partner domestic violence even after the victim has
managed to leave the relationship.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="text-indent: .5in;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><u><span style="color: red;">Appellate Divison, Fourth
Department <br />
<br />
<br />
</span></u></b><b><span style="color: red; font-size: 11.0pt;">Supreme Court cannot
find litigant in criminal contempt based on testimony in Family Court, nor can
court summarily punish litigant for civil or criminal contempt based on that
testimony. <o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">In
Ritchie v Ritchie, 2020 WL 3160969 (4<sup>th</sup> Dept.,2020) the Appellate
Division agreed with the mother that the court erred in sua sponte directing
her to </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">pay a $2,500 fine to the [f]ather for her perjury in
this matter ... and if the fine is not permitted by law, [directing that] ...
the fine [be converted] into an award of damages.</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">
The court did not state whether it was sanctioning the mother for frivolous
conduct or for civil or criminal contempt. The court summarily punished the
mother by sanctioning her after it determined that she committed perjury during
her testimony before a Judicial Hearing Officer in Family Court with respect to
the temporary order of protection and during her testimony at the hearing on
the petition before Supreme Court. Assuming, arguendo, that perjury would
support a finding of contempt, the court could not properly find the mother in
criminal contempt based on her testimony in Family Court, nor could the court
summarily punish the mother for civil or criminal contempt based on that testimony,
inasmuch as it occurred out of the court’s </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">immediate
view and presence</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">. Insofar as the order may be deemed to sanction the
mother for civil or criminal contempt that occurred in the presence of Supreme
Court, because </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">due process requires that ... the contemnor be
afforded </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">></span></span></b><b><span style="font-size: 11.0pt;">an opportunity to be heard at a meaningful time and in
a meaningful manner</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;"> </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;">, and the court failed to provide notice that it was
considering finding the mother in contempt or an opportunity to be heard
thereon, the court erred in imposing such sanction. The court had no authority
to sanction the mother on the ground that she engaged in frivolous conduct.
Assuming, arguendo, that sanctions for frivolous conduct may be based on a
party</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s perjury, it held that the regulation permitting the
imposition of such sanctions specifically provides that it </span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span></b><b><span style="font-size: 11.0pt;">shall
not apply to ... proceedings in the Family Court commenced under article ... 8
of the Family Court Act</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span></b><b><span style="font-size: 11.0pt;"> (22 NYCRR 130‑1.1 [a]. This matter was commenced in
Family Court under article 8 of the Family Court Act, and thus no such sanction
was authorized.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: arial;">June 1, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, Second Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11.0pt;">It is an
improvident exercise of discretion to deny a request for an adjournment where
the evidence is material, the application is properly made and is not made for
purposes of delay, and the need for an adjournment does not result from the
failure to exercise due diligence</span></b><b><span style="font-size: 11.0pt;">.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">In
Markowitz v Markowitz, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 2462400 (Mem), 2020 N.Y. Slip
Op. 02772 (2d Dept., 2020) prior to the trial, the Supreme Court directed a
forensic evaluation, but the defendant did not consent to it being admitted
into evidence at trial. The plaintiff sought to have the forensic evaluator
testify at trial, and the court directed the parties to pay their respective
pro rata share of the cost of the evaluator</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
trial fees. The plaintiff paid her share, but the evaluator did not receive the
defendant</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s share and did not appear to testify at trial in the
absence of full compensation. The plaintiff requested a two‑week adjournment in
order to secure the evaluator</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s fee and produce him as a witness, but the court
denied the application. After the trial, the court awarded the defendant sole
legal and physical custody of the child, with specified parental access to the
plaintiff. The Appellate Divison reversed and remitted for a new trial. It held
that the court should not have denied the plaintiff</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
request for an adjournment in order to secure the testimony of the evaluator.
Although an application for an adjournment is addressed to the sound discretion
of the trial court, it is an improvident exercise of discretion to deny such a
request where the evidence is material, the application is properly made and is
not made for purposes of delay, and the need for an adjournment does not result
from the failure to exercise due diligence. The plaintiff was not at fault for
the delay since the forensic evaluator was an expert who could not be compelled
to testify without appropriate compensation, and the plaintiff</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
inability to produce the witness was a result of the defendant</span></b><b><span style="font-size: 11pt;"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span></b><b><span style="font-size: 11.0pt;">s
failure to pay.<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="text-indent: .5in;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">An order denying
an application to sign an order to show cause is not appealable<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Curcio v Curcio, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 2462338
(Mem), 2020 N.Y. Slip Op. 02780 (2d Dept.,2020) the mother moved, by order to
show cause, inter alia, in effect, to modify an order of protection. By order
dated March 8, 2019, the court, declined to sign the order to show cause. The
mother noticed and perfected an appeal. The Appellate Division held that an
order denying an application to sign an order to show cause is not appealable
(see CPLR 5704[a]). However, it deemed it appropriate to treat the notice of
appeal as an application for review pursuant to CPLR 5704(a).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red; font-size: 11.0pt;">A child support
obligation is owed to the child, not to the payee spouse</span></b><b><span style="font-size: 11.0pt;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Sultan v Khan, --- N.Y.S.3d ----, 2020 WL
2545265 (Mem), 2020 N.Y. Slip Op. 02929 (2d Dept.,2020) the Appellate Division
affirmed an order which directed the father to pay child support to the
maternal grandfather, who was awarded custody of the child after the mothers
death, retroactive to the date of the mother’s death. It held that since a
child support obligation is owed to the child, not to the payee spouse, he
death of the payee spouse does not terminate the obligation. The death of the
mother did not terminate the father’s continuing obligation under the order of
support dated December 4, 2014, to support the children. It would be contrary
to the statutory scheme of the Family Court Act and the important public
policies it embodies for the father to no longer be liable for unpaid child
support payments accrued after the mother’s death where, as here, “he neither
had custody of the child[ren] nor sought to otherwise modify his child support
obligation during the relevant period”.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Supreme Court<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><u><span style="color: red; font-size: 11.0pt;">Appearance by
Video Conference permitted pursuant to CPLR 3117</span></u></b><b><u><span style="font-size: 11.0pt;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></u></b></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Mannino v Caroso, --- N.Y.S.3d ----, 2020 WL 2545265 (Mem), 2020 N.Y. Slip Op.
02929, Unreported Disposition, Sup Ct, 2020) Supreme Court granted the
plaintiff’s motion an order granting plaintiff permission to appear in this
matter by video conferencing. On January 2, 1977, the parties were married in
Italy. Thereafter, the parties resided together in their marital residence
located at 8635 14th Avenue in Brooklyn, New York. Three children were born of
the marriage, all of whom were emancipated prior to the commencement of this
action. In 1984, plaintiff was convicted of various crimes in the United States
and sentenced to 44 months in prison. On April 30, 1992, plaintiff, who is an
Italian citizen, was deported to Italy and has remained there to the present
day. According to plaintiff, given his prior criminal conviction and
deportation, he is precluded from returning to the United States. The motion
was granted to the extent that, pursuant to CPLR 3103 (a), plaintiff’s
deposition is to be conducted via video. Further, pursuant to CPLR 3117 (a)
(3), plaintiff was granted leave to employ a video transcription of his
deposition testimony at trial in lieu of appearing at trial. Testimony at the
trial in chief may also be via video as long as the Plaintiff makes
arrangements for the video link, via skype for business or any other approved
platform by the Court System in accordance with protocols in effect at that
time including but not limited to a prohibition on recordings or coaching of a
witness from a remote location. The motion was granted on condition he submit
proof that he as actually attempted to obtain permission to enter the United
States.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Children are not
parties to the litigation <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Clarence M v Martina M, 2020 WL 2499625 (Sup Ct 2020) Plaintiff moved for an
order determining that the children were not parties to the litigation with
fundamental rights to automatically review copies of the pleadings, motion
papers, forensic reports, other mental reports or status reports, affidavits,
affirmations, statements of net worth and/or other litigation documents without
leave of court. Supreme Court agreed and held that it was not appropriate for a
14‑year‑old child to see a report prepared by a forensic evaluator related to
therapeutic visitation. It held that when Rule 7.2 was enacted it was not the
intent to abrogate the role of the Court.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;">May 16, 2020</span></u><span style="background: white; color: #7b8c89; font-size: 11.0pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span class="MsoHyperlink"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;">The May 18, 2020 edition of the New York
Law Journal contains Mr. Brandes “</span></strong><strong><span style="background: white; color: red; font-size: 11pt; letter-spacing: 0.6pt;">Law and the Family</span></strong><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;">” column which is a regular feature in the New York Law
Journal. The May 18, 2020 edition of his column contains an article he wrote
titled</span></strong><strong><span style="background: white; color: #7b8c89; font-size: 11pt;"> “</span></strong><strong><span style="background: white; color: #fe0606; font-size: 11pt;">The Resurrection of Marital Fault”</span></strong><strong><span style="background: white; color: #7b8c89; font-size: 11pt;">. </span></strong><strong><span style="background: white; color: #000017; font-size: 11pt;"> It appears on
page 3 and in the online edition. </span></strong><a href="file:///C:/Users/Joel%20Brandes/Dropbox/Dropbox%20Bits%20&%20Bytes%20Drafts/The%20Resurrection%20of%20Marital%20Fault%20reprint.pdf"><b><span style="background: white; font-size: 11.0pt; letter-spacing: .6pt;">Click here for
our copy of the article</span></b></a><strong><span style="background: white; font-size: 11pt; letter-spacing: 0.6pt;">.<o:p></o:p></span></strong></span></p>
<p class="MsoNormal"><span style="background: white; color: #7b8c89; font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><u><span style="background: white; color: red; font-size: 11.0pt;"><span style="font-family: arial;">Summary of Relevant Executive and Administrative Orders Related to
Covid19<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="background: white; color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="background: white; color: red; font-size: 11.0pt;"><span style="font-family: arial;">Executive Order 202.8, March 20, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><span style="background: white; color: #7b8c89; font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span>In accordance with the directive of the Chief
Judge of the State to limit court operations to essential matters during the
pendency of the COVID-19 health crisis, any specific time limit for the
commencement, filing, or service of any legal action, notice, motion, or other
process or proceeding, as prescribed by the procedural laws of the state,
including but not limited to the criminal procedure law, the family court act,
the civil practice law and rules, the court of claims act, the surrogate's
court procedure act, and the uniform court acts, or by any other statute, local
law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled
from the date of this executive order until April 19, 2020<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Essential
Proceedings Administrative Order AO/78/20 March 22, 2020 <o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">A. Criminal matters 1.
arraignments 2. bail applications, reviews and writs 3. temporary orders of
protection 4. resentencing of retained and incarcerated defendants 5. essential
sex offender registration act (SORA) matters <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">B. Family Court 1. child
protection intake cases involving removal applications 2. newly filed juvenile
delinquency intake cases involving remand placement applications, or
modification thereof 3. emergency family offense petitions/temporary orders of
protection 4. orders to show cause 5. stipulations on submission <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">C. Supreme Court 1. Mental
Hygiene Law (MHL) applications and hearings addressing patient retention or
release 2. MHL hearings addressing the involuntary administration of medication
and other medical care 3. newly filed MHL applications for an assisted
outpatient treatment (AOT) plan 4. emergency applications in guardianship
matters 5. temporary orders of protection (including but not limited to matters
involving domestic violence) 6. emergency applications related to the
coronavirus 7. emergency Election Law applications 8. extreme risk protection
orders (ERPO) <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">D. Civil/Housing matters
1. applications addressing landlord lockouts (including reductions in essential
services) 2. applications addressing serious code violations 3. applications
addressing serious repair orders 4. applications for post-eviction relief <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">E. All Courts 1. any other
matter that the court deems essential This list of essential proceedings is
subject to ongoing review and amendment as necessary.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">March 22,
2020 Chief Administrative Judge - Press Release<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">Virtual Court Operations
to Commence in NYC Mid-week <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">New York State Courts
Remain Open for Business, Maintaining All Essential and Emergency Proceedings <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">NEW YORK−Extraordinary
times like these call for extraordinary measures. In response to the COVID-19
pandemic, the New York State court system is instituting various temporary
measures to reduce courtroom density and stem the spread of the Coronavirus.
Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks
today announced that beginning on Wednesday, March 25, 2020 and Thursday, March
26, 2020, virtual court operations will commence, respectively, in New York
City Criminal Court and New York City Family Court <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">NYC Family Court:
Effective Thursday, March 26, 2020−in order to mitigate and contain the ongoing
spread of coronavirus while at the same time continuing to provide critical
emergency relief to the children and families the court serves−the New York
City Family Court will hear by remote video appearances and/or by telephone the
following matters: <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">• Child-protective intake
cases involving removal applications <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">• Newly-filed juvenile
delinquency intake cases involving remand applications <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">• Emergency family offense
petitions <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">• Writ applications where
there is a court order if custody or parenting time.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">Additionally, due to the
suspension of civil statutes of limitation by the Governor’s executive order
202.8, effective immediately, all new Court filings, either e-filed or hard
copy, that are not essential matters, will NOT be accepted.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Executive
Order 202.14 April 7, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal" style="background: white; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11.0pt; mso-color-alt: windowtext; mso-fareast-font-family: "Times New Roman";">WHEREAS, on March 7,
2020, I issued Executive Order Number 202, declaring a State disaster emergency
for the entire State of New York; and <br />
WHEREAS, both travel-related cases and community contact transmission of
COVID-19 have been documented in New York State and are expected to continue;<br />
NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by
virtue of the authority vested in me by Section 29-a of Article 2-B of the
Executive Law, do hereby continue the suspensions and modifications of law, and
any directives, not superseded by a subsequent directive, made by Executive
Order 202 and each successor Executive Order to 202, for thirty days until May
7, 2020, except as limited below.</span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">April 8, 2020
Chief Administrative Judge – Administrative Order (AO/85/20)<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 6.7pt; margin-right: .5pt; margin-top: 0in; text-indent: 37.2pt;"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">Pursuant to the authority vested in me, and at the
direction of the Chief Judge, I hereby promulgate, effective April 13, 2020,
the following additional procedures and protocols to </span></b><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-no-proof: yes;"><!--[if gte vml 1]><v:shape id="Picture_x0020_14" o:spid="_x0000_i1026"
type="#_x0000_t75" style='width:.6pt;height:.6pt;visibility:visible;
mso-wrap-style:square'>
<v:imagedata src="file:///C:/Users/joel/AppData/Local/Temp/msohtmlclip1/01/clip_image002.jpg"
o:title=""/>
</v:shape><![endif]--><!--[if !vml]--><img border="0" height="1" src="file:///C:/Users/joel/AppData/Local/Temp/msohtmlclip1/01/clip_image002.jpg" v:shapes="Picture_x0020_14" width="1" /><!--[endif]--></span></b><b><span style="font-size: 11.0pt;">mitigate the effects of the COVID-19 outbreak upon the users, visitors,
staff, and judicial officers of the Unified Court System.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 6.7pt; margin-right: .5pt; margin-top: 0in; text-indent: 37.2pt;"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 40.55pt; margin-right: .5pt; margin-top: 0in; text-indent: -4.55pt;"><span style="font-family: arial;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-no-proof: yes;"><!--[if gte vml 1]><v:shape id="Picture_x0020_12" o:spid="_x0000_i1025"
type="#_x0000_t75" style='width:.6pt;height:.6pt;visibility:visible;
mso-wrap-style:square'>
<v:imagedata src="file:///C:/Users/joel/AppData/Local/Temp/msohtmlclip1/01/clip_image003.jpg"
o:title=""/>
</v:shape><![endif]--><!--[if !vml]--><img border="0" height="1" src="file:///C:/Users/joel/AppData/Local/Temp/msohtmlclip1/01/clip_image004.jpg" v:shapes="Picture_x0020_12" width="1" /><!--[endif]--></span></b><b><span style="font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span>1. In addition to essential
court functions as set forth in AO/78/20, trial courts will address the
following matters through remote or virtual court operations and offices:<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 37.3pt; margin-right: 3.35pt; margin-top: 0in;"><span style="font-family: arial;"><b><u style="text-underline: black;"><span style="font-size: 11.0pt;">Conferencing Pending Cases</span></u></b><b><span style="font-size: 11.0pt;">: Courts will review their docket of pending cases,
assess matters that can be advanced or resolved through remote court
conferencing, and schedule and hold conferences in such matters upon its own
initiative, and where appropriate at the request of parties.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: .5in; margin-right: .5pt; margin-top: 0in;"><span style="font-family: arial;"><b><u style="text-underline: black;"><span style="font-size: 11.0pt;">Deciding Fully Submitted Motions</span></u></b><b><span style="font-size: 11.0pt;">: Courts will decide fully submitted motions in
pending cases.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 37.3pt; margin-right: 3.35pt; margin-top: 0in;"><span style="font-family: arial;"><b><u style="text-underline: black;"><span style="font-size: 11.0pt;">Discovery and Other Ad Hoc Conferences</span></u></b><b><span style="font-size: 11.0pt;">: Courts will maintain availability during normal
court hours to resolve ad hoc discovery disputes and similar matters not
requiring the filing of papers.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: .5in; margin-right: 7.45pt; margin-top: 0in; mso-layout-grid-align: auto; mso-list: l0 level1 lfo1; mso-pagination: widow-orphan; tab-stops: .5in; text-autospace: ideograph-numeric ideograph-other; text-indent: 0in;"><!--[if !supportLists]--><span style="font-family: arial;"><b><span style="border: 1pt none windowtext; color: black; padding: 0in;"><span style="mso-list: Ignore;">2.<span style="font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; line-height: normal;">
</span></span></span><!--[endif]--><u style="text-underline: black;"><span style="font-size: 11.0pt;">Video Technology</span></u><span style="font-size: 11.0pt;">: Video teleconferences conducted by the court, or
with court participation, will be administered exclusively through Skype for
Business.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: .5in; margin-right: 7.45pt; margin-top: 0in; mso-layout-grid-align: auto; mso-list: l0 level1 lfo1; mso-pagination: widow-orphan; tab-stops: .5in; text-autospace: ideograph-numeric ideograph-other; text-indent: 0in;"><!--[if !supportLists]--><span style="font-family: arial;"><b><span style="border: 1pt none windowtext; color: black; padding: 0in;"><span style="mso-list: Ignore;">3.<span style="font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; line-height: normal;">
</span></span></span><!--[endif]--><u style="text-underline: black;"><span style="font-size: 11.0pt;">No New Filings in Nonessential Matters</span></u><span style="font-size: 11.0pt;">: No new nonessential matters may be filed until
further notice; nor may additional papers be filed by parties in pending
nonessential matters. The court shall file such orders in essential and
nonessential matters as it deems appropriate.<o:p></o:p></span></b></span></p>
<p class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in; margin-left: 41.05pt; margin-right: .5pt; margin-top: 0in; text-indent: 35.75pt;"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">Provisions of prior administrative orders inconsistent
with this order shall be superseded by this order.<o:p></o:p></span></span></b></p>
<p><span style="font-family: arial;"><strong><u><span style="color: red; font-size: 11pt;">\Unified Court System Memo Dated April 30, 2020: Next Steps to
Expand Court Services</span></u></strong><b><u><span style="color: red; font-size: 11pt;"><o:p></o:p></span></u></b></span></p>
<p style="text-indent: .5in;"><b><span style="color: #2a2b2c; font-size: 11pt;"><span style="font-family: arial;">In a memo to all trial court judges and justices, Chief Administrative
Judge Lawrence K. Marks advised that: (1) New motions, responsive papers to
previously filed motions, and other applications (including post-judgment
applications) may be filed electronically in pending cases, either through the
NYSCEF e-filing system in jurisdictions that have it, or through a new
electronic document delivery system that has been created for courts and
jurisdictions where e-filing is unavailable; (2) Problem-solving courts may
conduct virtual court conferences with counsel, court staff, and service
providers, via Skype for Business; (3) Judges may resume referral of matters
for alternative dispute resolution, including to neutrals on court-established
panels, community dispute resolution centers, and ADR-dedicated court staff; and
(4) Notices of appeal may be filed electronically, either through NYSCEF or
through the new document delivery system. <strong><o:p></o:p></strong></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><u><span style="background: white; color: red; font-size: 11.0pt;">Executive Order </span></u></b><b style="mso-bidi-font-weight: normal;"><u><span style="background: white; color: red; font-size: 11.0pt;">202.14 dated April 17, 2020
<span style="mso-bidi-font-weight: bold;">Extended </span>Executive Order 202.8 <span style="mso-bidi-font-weight: bold;">to May 7, 2020<o:p></o:p></span></span></u></b></span></p>
<p style="background: white;"><span style="font-family: arial;"><b><span style="font-size: 11pt;">The
Governor issued Executive Order No. 202.8 on March 20, 2020, which states in
pertinent part: “any specific time limit for the commencement, filing, or
service of any legal action, notice, motion, or other process or proceeding, as
described by the procedural laws of the state, including but not limited to the
criminal procedure law, the family court act, the civil practice law and rules,
the court of claims act, the surrogate’s court procedure act, and the uniform
court acts, or by any other statute, local law, ordinance, order, rule, or regulation,
or part thereof, is hereby tolled from the date of this executive order until
April 19, 2020.” This order has been extended by Executive Order 202.14 to May
7, 2020.</span></b><b><span style="background: white; color: black; font-size: 11pt; letter-spacing: -0.4pt;"> <o:p></o:p></span></b></span></p>
<p><span style="font-family: arial;"><strong><u><span style="color: red; font-size: 11pt;">Notice dated May 4, 2020: </span></u></strong><b><u><span style="color: red; font-size: 11pt;">UCS Program
for Electronic Delivery of Documents</span></u></b><b><span style="color: red; font-size: 11pt;"> </span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In response to the COVID-19 public health
emergency and the expansion of “virtual” court operations, the Unified Court
System has initiated a new program to transmit digitized documents (in pdf
format) to UCS courts, County Clerks, and other court-related offices around
the State. <o:p></o:p></span></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">The Electronic Document Delivery System
(“EDDS”) allows users, in a single transaction, to (1) enter basic information
about a matter on a UCS webpage portal page; (2) upload one or more pdf
documents; and (3) send those documents electronically to a court or clerk
selected by the user. Upon receipt of the document(s) by the court, the sender
will receive an email notification, together with a unique code that identifies
the delivery. More detailed instructions for sending or filing documents
through EDDS may be found on the EDDS FAQ page. Users/Senders should keep
several important points in mind when using this system: <o:p></o:p></span></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">1. EDDS May be Used to File Papers with Certain
Courts: At the direction of the Chief Administrative Judge, during the COVID-19
public health crisis EDDS can be used to deliver documents for filing with
certain courts— including some Family Courts, Criminal Courts, Supreme Court,
the Court of Claims, Surrogate’s Courts, and District Courts, and City Courts.
(EDDS is not available in the New York City Criminal Court.) To use the system
for filing, the sender must simply check a box on the sender information screen,
complete the sending of the document(s) to the appropriate court through the
EDDS system, and pay any required filing fee by credit card. The clerk’s office
will review the document(s) for sufficiency and, if the clerk determines that
filing prerequisites have been met, accept them for filing purposes. In the
event that a clerk’s office has accepted and filed a document received through
EDDS, the sender will be notified of that fact by email or publication on a
public database. If no email or published notification is issued indicating
that the document has been accepted for filing, the sender should not assume
that the filing has occurred. The sender may contact the clerk’s office to
inquire about the status of a proposed filing. <o:p></o:p></span></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">2. EDDS is Not a Substitute for E-filing or
NYSCEF: Please note that, although EDDS may be used for filing in various
courts, it does not replace and may not substitute for filing under the New
York State Courts Electronic Filing System (NYSCEF). Therefore, it should not be
used in matters where NYSCEF is available on either a mandatory or consensual
basis. (Counties and case types where NYSCEF is available are listed on
NYSCEF’s Authorized for E-Filing page.)<o:p></o:p></span></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11pt;"><span style="mso-spacerun: yes;"> </span>3. EDDS
Delivery is not “Service” on Other Parties: Finally, unlike NYSCEF, delivery of
a document through EDDS does not constitute service of the document on any
other party. If service is required, the sender must serve by some other means.
In sum, EDDS is a document delivery portal that complements the UCS electronic
filing system and which, upon completion and together with NYSCEF, will allow
remote and immediate delivery of digitized documents throughout the Unified
Court System.</span></b><b><span style="color: #2a2b2c; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p class="MsoNormal"><strong><u><span style="background: white; color: #f50606; font-size: 11pt;"><span style="font-family: arial;">Executive Order 202.29 dated May 7, 2020
Continues Suspension until June 7, 2020<o:p></o:p></span></span></u></strong></p>
<p style="background: white;"><span style="font-family: arial;"><strong><span style="background: white; color: black; font-size: 11pt;">On
May 7, 2020 Governor Cuomo signed an executive order </span></strong><b><span style="color: black; font-size: 11pt;">continuing<span style="mso-spacerun: yes;"> </span>the suspensions and modifications of law, and
any directives, not superseded by a subsequent directive, made by Executive
Order 202.15, 202.16, 202.17, 202.18, 202.19, 202.20, and 202.21, for thirty
days until June 7, 2020; and temporarily modified, beginning on the date of
this Executive Order, Section 214-g of the Civil Practice Law and Rules, to the
extent it allows an action to be commenced not later than one year and six
months after the effective date of such section, is hereby modified to allow an
action commenced pursuant to such section to be commenced not later than one
year and eleven months after the effective date of such section. <o:p></o:p></span></b></span></p>
<p style="background: white;"><b><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Divison, Second Department,
Administrative Order 2020-506 dated May 7, 2020<o:p></o:p></span></span></u></b></p>
<p style="background: white;"><span style="font-family: arial;"><b><span style="color: black; font-size: 11pt;">ORDERS that filing and other deadlines
set forth in any order of this Court, the Practice Rules of the Appellate
Division (22 NYCRR part 1250), the Rules of Practice of this Court (22 NYCRR
part 670), or Electronic Filing Rules of the Appellate Division (22 NYCRR part
1245), or a prior directive of the Clerk of the Court, in relation to
non-actively-managed civil matters not heretofore addressed continue to be
suspended until further directive of this Court. (This is a portion of the
order) See </span></b><span style="color: black; mso-color-alt: windowtext;"><a href="https://www.nycourts.gov/courts/ad2/pdf/ADM_2020-0506.pdf"><b>https://www.nycourts.gov/courts/ad2/pdf/ADM_2020-0506.pdf</b></a></span><b><o:p></o:p></b></span></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;">The Court continues to
encourage counsel to make digital filings in all matters whenever possible,
either via NYSCEF if the appeal is subject to mandatory e-filing, or through
the digital portal on the Court’s website </span></b><a href="http://www.nycourts.gov/courts/AD2/Digital_Submission.shtml"><b><span style="font-size: 11.0pt;">https://www.nycourts.gov/courts/AD2/Digital_Submission.shtml</span></b></a><b><span style="font-size: 11.0pt;">. The Court also encourages counsel to make digital
submissions through its portal in matters currently pending in which only hard
copy submissions were previously made. Submissions of digital copies will
assist the Court in processing those matters expeditiously during this time
where the Court must operate only while virtually. (</span></b><a href="mailto:ad2-motions@nycourts.gov"><b><span style="font-size: 10.0pt;">ad2-motions@nycourts.gov</span></b></a><b><span style="color: #002060; font-size: 10pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><span style="color: #002060; font-size: 10.0pt;"><span style="font-family: arial;">718-722-6319
(phone)<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p style="background: white;"><b><u><span style="color: red; font-size: 11pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p><strong><u><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Appellate Division, First Department<o:p></o:p></span></span></u></strong></p>
<p><b><span style="color: red; font-size: 11pt;"><span style="font-family: arial;">Court
terminated defendant’s non-taxable maintenance as of December 31, 2018, after
considering employment prospects, modest marital lifestyle, and equitable
distribution of assets where defendant received pendente lite support since the
commencement of the action in 2011, a duration longer than the parties’
six-year marriage.<strong><u><o:p></o:p></u></strong></span></span></b></p>
<p class="MsoNormal"><!--[if supportFields]><span lang=EN-CA style='mso-ansi-language:
EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In
Gallen v Gallen, --- N.Y.S.3d ----, 2020 WL 2201010, 2020 N.Y. Slip Op. 02732
(1<sup>st</sup> Dept.,2020) the Appellate Division affirmed the judgment which,
inter alia, awarded defendant 25% of the “marital” portion of plaintiff’s
premarital Vanguard account ending in—4264, awarded defendant 50% of the value
of plaintiff’s Chase account ending at –8909 at commencement without crediting
plaintiff for $20,000 in post-commencement transfers, terminated defendant’s
maintenance as of December 31, 2018, and awarded defendant $70,000 in counsel
fees. It held that the court providently exercised its discretion in
terminating defendant’s non-taxable maintenance as of December 31, 2018, after
considering her employment prospects, the parties’ modest marital lifestyle,
and the equitable distribution of assets. Notably, defendant had received
pendente lite support since the commencement of the action in 2011, a duration
longer than the parties’ six-year marriage. Under the circumstances, she was
not entitled to a longer duration of maintenance.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p><span style="font-family: arial;"><b><span style="color: red; font-size: 11pt;">Where respondent assumed
the role of a parent and led the child to believe he was his father, the best
interests of the child required that respondent be estopped from denying
paternity</span></b><b><span style="font-size: 11pt;">.</span></b><strong><u><span style="color: red; font-size: 11pt;"><o:p></o:p></span></u></strong></span></p>
<p><span style="font-family: arial;"><b><span style="font-size: 11.0pt; mso-bidi-font-family: Arial;"><span style="mso-tab-count: 1;"> </span></span></b><b><span style="font-size: 11pt;">In Matter of Lorraine D.S. v Steven
W, 180 A.D.3d 595, 120 N.Y.S.3d 297, 2020 N.Y. Slip Op. 01298 (1<sup>st</sup>
Dept.,2020) the Appellate Division affirmed an order which found that
Respondent was equitably estopped from denying paternity of child, and entered
order of filiation declaring him to be child’s father. Clear and convincing
evidence demonstrated that respondent held himself out as the father of the
child and that the child, who was 15 years old at the time of the hearing,
considered respondent to be his father). The child lived with respondent and
his mother for approximately five years and believed that respondent was his
father, and respondent never attempted to dissuade the child from believing
otherwise. Even after respondent and the mother stopped living together,
respondent regularly sent text messages and visited with the child, and
indicated to the mother that the child would have his own space for weekend
visits in respondent’s new home. Respondent attended the child’s basketball
games and graduations and had the child as his best man at his wedding to his
current wife. He introduced the child as his son to the guests at the wedding
and referred to him as his child on social media. Under these circumstances,
where respondent assumed the role of a parent and led the child to believe he
was his father, the court properly concluded that the best interests of the
child required that respondent be estopped from denying paternity.</span></b><strong><u><span style="color: red; font-size: 11pt;"><o:p></o:p></span></u></strong></span></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Supervised
visitation is only appropriate where there is a showing that the child’s
physical safety or emotional well-being is at risk<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Jeanine H v Mamadou O, --- N.Y.S.3d ----, 2020 WL
2201027, 2020 N.Y. Slip Op. 02730 (1<sup>st</sup> Dept.,2020) the Appellate
Division held that because “supervision can interfere with the parent-child
relationship,” it is only appropriate where there is a showing that the child’s
physical safety or emotional well-being is at risk without supervision (Frank
M. v. Donna W., 44 A.D.3d 495, 496, 844 N.Y.S.2d 22 [1st Dept. 2007]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Appellate
Division, Second Department<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Where ICPC
applies Court cannot grant petition for custody absent approval from the
relevant authority in the Sister State where the child is living. <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Laland v. Bookhart, --- N.Y.S.3d ----, 2020
WL 2170952 (Mem), 2020 N.Y. Slip Op. 02611 (2d Dept.,2020) the child was
removed from the mother’s care due to neglect, and placed in the care and
custody of the Suffolk County Department of Social Services. The father, who
resided in North Carolina, commenced proceedings against the mother and DSS to
obtain custody of the child. Family Court dismissed the petitions finding that
following an investigation conducted in accordance with the Interstate Compact
for the Placement of Children (ICPC), the relevant North Carolina authority
found that the father’s home was not suitable for the child and would not
consent to placing the child with the father. The Appellate Division affirmed.
Where a child is in the custody of a child protective agency (see Family Ct Act
§ 1012[i]), and a parent living outside of New York petitions for custody of
the child, the provisions of the ICPC apply. Since the child was in the custody
of DSS and the father resided in North Carolina, Family Court’s properly
determined that the ICPC applied and it could not grant the father’s petitions
for custody absent approval from the relevant North Carolina authority, and
that approval was denied.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Where a
respondent in support enforcement case indicates an inability to retain private
counsel, the court must make inquiry to determine whether the party is eligible
for court-appointed counsel.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span>In Matter of Goodine v Evans, --- N.Y.S.3d ----, 2020 WL
2170984, 2020 N.Y. Slip Op. 02668 (2d Dept.,2020)<span style="mso-spacerun: yes;"> </span>when the father first appeared before the
Support Magistrate, the Support Magistrate informed the father that if he was employed,
he was ineligible for assigned counsel, and that he could either represent
himself or the proceeding would be adjourned for him to hire private counsel.
Although the father informed the Support Magistrate that he could not afford
private counsel and requested the appointment of assigned counsel, the Support
Magistrate repeated that he was not entitled to appointed counsel if he was
working. The matter was adjourned for a hearing, and no further advisement or
inquiry was made by the court. The Appellate Division held that the Support Magistrate
should have inquired further into the father’s financial circumstances,
including, but not limited to, inquiring about his expenses because the father
expressed a desire to have an attorney appointed. Where a party indicates an
inability to retain private counsel, the court must make inquiry to determine
whether the party is eligible for court-appointed counsel. Here, despite the
father’s statements at the pretrial appearance that he could not afford to hire
private counsel and would like to have an attorney appointed, the Support
Magistrate adjourned the matter for a hearing. Under these circumstances, the
father was deprived of his right to counsel and reversal is required.<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span></span></b><b><u><span style="color: red; font-size: 11.0pt;">Appellate Division, Fourth Department<o:p></o:p></span></u></b></span></p>
<p class="MsoNormal"><!--[if supportFields]><u><span lang=EN-CA style='mso-ansi-language:
EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></u><![endif]--><!--[if supportFields]><u><span
lang=EN-CA style='mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></u><![endif]--><u><span style="font-family: arial;"><b><o:p></o:p></b></span></u></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><span style="color: red;">Where prior order on consent
awarded non</span></b><b><span style="color: red; font-size: 11.0pt;">-parent
custody for a period of time, she must establish that extraordinary
circumstances exist and that a change in circumstances had occurred since entry
of the prior order<o:p></o:p></span></b></span></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">In Matter of Driscoll v
Mack, --- N.Y.S.3d ----, 2020 WL 2090072 (Mem), 2020 N.Y. Slip Op. 02559 (4<sup>th</sup>
Dept., 2020) the Appellate Division affirmed an order which awarded physical
custody of the s children to the maternal grandmother. It held that the grandmother
met the burden of establishing that extraordinary circumstances existed even
though the prior order, which awarded her primary physical custody of the
children for a period of time, was made upon consent of the parties. Once the
grandmother established that extraordinary circumstances existed, she had the
burden, of establishing that a change in circumstances had occurred since entry
of the prior order. The Court held that to the extent that its prior cases
suggested that a change in circumstances analysis is not required here, those
cases should no longer be followed (see e.g. Matter of Tamika C.P. v. Denise
M., 39 AD3d 1213, 1214 [4th Dept 2007]; Katherine D., 32 AD3d at 1351; Matter
of Ruggieri v. Bryan, 23 AD3d 991, 992 [4th Dept 2005]).<o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><o:p><span style="font-family: arial;"> </span></o:p></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><span style="font-family: arial;"><b><u><span style="color: red; font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;">May 1, 2020</span></u><span style="background: white; color: #7b8c89; font-size: 11.0pt;"><o:p></o:p></span></b></span></p>
<p class="MsoNormal"><span style="background: white; color: #7b8c89; font-size: 11.0pt;"><o:p><span style="font-family: arial;"><b> </b></span></o:p></span></p>
<p><span style="font-family: arial;"><strong><u><span style="color: red; font-size: 11pt;">Notice dated May 4, 2020: </span></u></strong><b><u><span style="color: red; font-size: 11pt;">UCS Program
for Electronic Delivery of Documents</span></u></b><b><span style="color: red; font-size: 11pt;"> </span></b><b><span style="font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p style="margin: 0in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">In response to the COVID-19 public health
emergency and the expansion of “virtual” court operations, the Unified Court
System has initiated a new program to transmit digitized documents (in pdf
format) to UCS courts, County Clerks, and other court-related offices around
the State. <o:p></o:p></span></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">The Electronic Document Delivery System
(“EDDS”) allows users, in a single transaction, to (1) enter basic information
about a matter on a UCS webpage portal page; (2) upload one or more pdf
documents; and (3) send those documents electronically to a court or clerk
selected by the user. Upon receipt of the document(s) by the court, the sender
will receive an email notification, together with a unique code that identifies
the delivery. More detailed instructions for sending or filing documents
through EDDS may be found on the EDDS FAQ page. Users/Senders should keep
several important points in mind when using this system: <o:p></o:p></span></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">1. EDDS May be Used to File Papers with Certain
Courts: At the direction of the Chief Administrative Judge, during the COVID-19
public health crisis EDDS can be used to deliver documents for filing with
certain courts— including some Family Courts, Criminal Courts, Supreme Court,
the Court of Claims, Surrogate’s Courts, and District Courts, and City Courts.
(EDDS is not available in the New York City Criminal Court.) To use the system
for filing, the sender must simply check a box on the sender information
screen, complete the sending of the document(s) to the appropriate court
through the EDDS system, and pay any required filing fee by credit card. The
clerk’s office will review the document(s) for sufficiency and, if the clerk
determines that filing prerequisites have been met, accept them for filing
purposes. In the event that a clerk’s office has accepted and filed a document
received through EDDS, the sender will be notified of that fact by email or
publication on a public database. If no email or published notification is
issued indicating that the document has been accepted for filing, the sender
should not assume that the filing has occurred. The sender may contact the
clerk’s office to inquire about the status of a proposed filing. <o:p></o:p></span></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><span style="font-family: arial;">2. EDDS is Not a Substitute for E-filing or
NYSCEF: Please note that, although EDDS may be used for filing in various
courts, it does not replace and may not substitute for filing under the New
York State Courts Electronic Filing System (NYSCEF). Therefore, it should not
be used in matters where NYSCEF is available on either a mandatory or
consensual basis. (Counties and case types where NYSCEF is available are listed
on NYSCEF’s Authorized for E-Filing page.)<o:p></o:p></span></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><b><span style="font-size: 11pt;"><o:p><span style="font-family: arial;"> </span></o:p></span></b></p>
<p style="margin: 0in; text-indent: .5in;"><span style="font-family: arial;"><b><span style="font-size: 11pt;"><span style="mso-spacerun: yes;"> </span>3. EDDS
Delivery is not “Service” on Other Parties: Finally, unlike NYSCEF, delivery of
a document through EDDS does not constitute service of the document on any
other party. If service is required, the sender must serve by some other means.
In sum, EDDS is a document delivery portal that complements the UCS electronic
filing system and which, upon completion and together with NYSCEF, will allow
remote and immediate delivery of digitized documents throughout the Unified
Court System.</span></b><b><span style="color: #2a2b2c; font-size: 11pt;"><o:p></o:p></span></b></span></p>
<p><span style="font-family: arial;"><strong><u><span style="color: red; font-size: 11pt;">\Unified Court System Memo Dated April 30, 2020: Next Steps to
Expand Court Services</span></u></strong><b><u><span style="color: red; font-size: 11pt;"><o:p></o:p></span></u></b></span></p>
<p style="text-indent: .5in;"><b><span style="color: #2a2b2c; font-size: 11pt;"><span style="font-family: arial;">In a memo to all trial court judges and justices, Chief
Administrative Judge Lawrence K. Marks advised that: (1) New motions,
responsive papers to previously filed motions, and other applications
(including post-judgment applications) may be filed electronically in pending
cases, either through the NYSCEF e-filing system in jurisdictions that have it,
or through a new electronic document delivery system that has been created for
courts and jurisdictions where e-filing is unavailable; (2) Problem-solving
courts may conduct virtual court conferences with counsel, court staff, and
service providers, via Skype for Business; (3) Judges may resume referral of
matters for alternative dispute resolution, including to neutrals on
court-established panels, community dispute resolution centers, and
ADR-dedicated court staff; and (4) Notices of appeal may be filed electronically,
either through NYSCEF or through the new document delivery system. <strong><o:p></o:p></strong></span></span></b></p>
<p class="MsoNormal"><b><u><span style="background: white; color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="background: white; color: red; font-size: 11.0pt;"><span style="font-family: arial;">Executive Order Extended to May 7, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="background: white; color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p style="background: white;"><span style="font-family: arial;"><b><span style="font-size: 11pt;">The
Governor issued Executive Order No. 202.8 on March 20, 2020, which states in
pertinent part: “any specific time limit for the commencement, filing, or
service of any legal action, notice, motion, or other process or proceeding, as
described by the procedural laws of the state, including but not limited to the
criminal procedure law, the family court act, the civil practice law and rules,
the court of claims act, the surrogate’s court procedure act, and the uniform
court acts, or by any other statute, local law, ordinance, order, rule, or
regulation, or part thereof, is hereby tolled from the date of this executive
order until April 19, 2020.” This order has been extended by Executive Order
202.14 to May 7, 2020.</span></b><b><span style="background: white; color: black; font-size: 11pt; letter-spacing: -0.4pt;"> <o:p></o:p></span></b></span></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: arial;">Administrative
Order issued on March 22, 2020<o:p></o:p></span></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><u><span style="color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">The Chief Administrative
Judge of the New York State Court issued an Administrative Order on March 22,
2020, which states that, “effective immediately and until further order, no
papers shall be accepted for filing by a county clerk or a court in any matter
of a type not included on the list of essential matters.”<span style="mso-spacerun: yes;"> </span>The Administrative Order includes a list of
“essential matters,” which applies to both paper and electronic filing cases.
As relevant to family law practitioners “essential matters” includes the
following: <span style="mso-spacerun: yes;"> </span>B. Family Court: <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">1. child protection intake
cases involving removal applications; 2. newly filed juvenile delinquency
intake cases involving remand placement applications, or modification thereof; <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><span style="font-size: 11.0pt;"><span style="font-family: arial;">3. emergency family
offense petitions/temporary orders of protection; 4. orders to show cause; 5.
stipulations on submission; C. Supreme Court: <span style="mso-spacerun: yes;"> </span>5. temporary orders of protection (including
but not limited to matters involving domestic violence) <o:p></o:p></span></span></b></p>
<p class="MsoNormal"><b><u><span style="background: white; color: red; font-size: 11.0pt;"><o:p><span style="text-decoration: none;"><span style="font-family: arial;"> </span></span></o:p></span></u></b></p>
<p class="MsoNormal"><o:p><span style="font-family: arial;"><b> </b></span></o:p></p>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-21746674659316901542020-04-26T09:34:00.003-04:002020-04-26T09:34:59.118-04:00Recent Legislation - Domestic Relations Law, Family Court Act and other Family Related Laws Amended by Laws of 2020, Chapters 55 and 56 (Budget Bills)<b><span style="font-family: Arial, Helvetica, sans-serif;">Domestic Relations Law, Family Court Act and other Family Related Laws Amended by Laws of 2020, Chapters 55 and 56 (Budget Bills)</span></b><br />
<b><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></b>
<b><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></b>
<b><span style="font-family: Arial, Helvetica, sans-serif;">Laws of 2020, Chapter 55</span></b><br />
<b><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></b>
<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span> SUBPART K (Effective November 1, 2020)</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 9. Paragraphs (a) and (b) of subdivision 2 of section 842-a of the family court act, was amended and a new paragraph (c) was added. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 10. Paragraphs (a) and (b) of subdivision 3 of section 842-a of the family court act was amended and a new paragraph (c) was added. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 11. Subdivisions 6 and 7 of section 842-a of the family court act were amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 12. This act shall take effect on the first of November next succeeding the date on which it shall have become a law.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> <span style="white-space: pre;"> </span>SUBPART L</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> Section 1. Subdivision 5 of section 1017 of the family court act, was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 2. Subdivision (j) of section 1055 of the family court act was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 3. Clause (H) of subparagraph (vii) of paragraph 2 of subdivision (d) of section 1089 of the family court act, was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 4. Paragraph (g) of subdivision 3 of section 358-a of the social services law was amended.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 5. This act shall take effect on the same date and in the same manner as a chapter of the laws of 2019 amending the family court act and the social services law relating to notice of indicated reports of child maltreatment and changes of placement in child protective and voluntary foster care placement and review proceedings, as proposed in</span></b><br />
<b><span style="font-family: Arial, Helvetica, sans-serif;"> legislative bills numbers S. 6215 and A. 7974, takes effect.</span></b><br />
<b><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></b>
<b><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></b>
<b><span style="font-family: Arial, Helvetica, sans-serif;">Laws of 2020, Chapter 56</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span> PART L (Effective February 15, 2021)</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> Section 1. The family court act was amended by adding a new article 5-C: JUDGMENTS OF PARENTAGE OF CHILDREN CONCEIVED THROUGH ASSISTED REPRODUCTION OR PURSUANT TO SURROGACY AGREEMENTS</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 2. Section 73 of the domestic relations law was REPEALED.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 3. Section 121 of the domestic relations law was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 4. Section 122 of the domestic relations law was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 5. Section 123 of the domestic relations law was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 6. Section 124 of the domestic relations law was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 7. Section 4135 of the public health law, subdivision 1, subdivision 2 and subdivision 3 were amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 8. Section 4135-b of the public health law, subdivisions 1 and 2 and subdivision 3 were amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 9. Paragraph (e) of subdivision 1 of section 4138 of the public health law, was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 10. The article heading of article 8 of the domestic relations law, was amended to read as follows: GENETIC SURROGATE PARENTING CONTRACTS</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 11. The general business law was amended by adding a new article 44</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 12. The public health law was amended by adding a new article 25-B. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 13. Subdivisions 4, 5, 6, 7 and 8 of section 4365 of the public health law were renumbered subdivisions 5, 6, 7, 8 and 9 and a new subdivision 4 was added. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 14. Paragraph (a) of subdivision 1 of section 440 of the family court act, was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 15. Section 516-a of the family court act, subdivisions (b) and (c) and subdivision (d) were amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 16. Paragraph (b) of subdivision 1 of section 1017 of the family court act was amended.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 17. Section 4-1.2 of the estates, powers and trusts law, the section heading, the opening paragraph of subparagraph 1 of paragraph (a), the opening paragraph of</span></b><br />
<b><span style="font-family: Arial, Helvetica, sans-serif;"> subparagraph 2 of paragraph (a) and the opening paragraph of subparagraph 3 of paragraph (a), subparagraph 2 of paragraph (a), clause (A) of subparagraph 2 of paragraph (a, and clause (C) of subparagraph 2 of paragraph (a) and paragraph (b) were amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 18. Subdivision 1, paragraph g of subdivision 2, subdivision 3, and subdivision 4 of section 111-c of the social services law, subdivision 1, paragraph g of subdivision 2, subdivision 3, and subdivision 4 were amended.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 19. Section 111-k of the social services law, paragraphs (a) and (b) of subdivision 1 was amended.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 20. Subdivisions 1 and 2 of section 372-c of the social services Law were amended.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 21. Subdivision (a) of section 439 of the family court act, was amended.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 22. Subparagraph (D) of paragraph 17 of subsection (a) of section 1113 of the insurance law was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 23. Paragraph 32 of subsection (a) of section 1113 of the insurance law, was renumbered paragraph 33 and a new paragraph 32 was added. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 24. Subsection (a) of section 2105 of the insurance law, was amended.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 25. Subsection (b) of section 4101 of the insurance law, was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 26. Group A of table one as contained in paragraph 1 of subsection (a) of section 4103 of the insurance law, was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 27. Group C of table three as contained in subsection (b) of section 4107 of the insurance law, was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 28. Section 4-1.3 of the estates, powers and trust law was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 29. This act shall take effect February 15, 2021, provided, however, that the amendments to subdivision (a) of section 439 of the family court act made by section twenty-one of this act shall not affect the expiration of such subdivision and shall be deemed to expire therewith. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effect- tive date are authorized to be made and completed on or before such effective date.</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>Part R (Effective January 1, 2022)</span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 10. Section 651-a of the family court act, as amended by chapter 12</span></b><br />
<b><span style="font-family: Arial, Helvetica, sans-serif;"> of the laws of 1996, was amended. </span></b><br />
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> § 11. This act shall take effect immediately; provided, however that sections one, three, four, five, six, seven, eight, nine and ten of this act shall take effect January 1, 2022. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to</span></b><br />
<b><span style="font-family: Arial, Helvetica, sans-serif;"> be made and completed by the office of children and family services on or before such effective date.</span></b><br />
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Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-33937718501613849142020-04-20T10:44:00.004-04:002020-04-20T10:44:49.104-04:00Recent Legislation - Domestic Relations Law §236 [B]5] [d] Factor 14<strong style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px;"><span style="color: #0219f1;">Laws of 2020, Ch 55, §1, enacted April 3, 2020 added an additional factor to the property distribution factors in Domestic Relations Law §236 [B]5] [d]. Factor 14 “any other factor which the court shall expressly find to be just and proper” was renumbered factor 15, and a new “domestic violence” factor 14 was added: (14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts. The amendment takes effect on May 3, 2020 and applies to matrimonial actions commenced on or after the effective date. </span></strong><br />
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<strong style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px;"><span style="color: #0219f1;">Notably, Social Services Law §159-a does not specifically define an “act or acts of domestic violence. “Instead, subdivision 1 defines victim of domestic violence” as “a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; which act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person's child. </span></strong><br />
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<strong style="background-color: white; color: #7b8c89; font-family: Arial; font-size: 16px;"><span style="color: #0219f1;">A spouse who fits within this definition would probably be held to have committed the cruel and inhuman treatment ground for divorce in Domestic Relations Law § 170(1).</span></strong>Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-45214975077297122732020-03-31T17:30:00.001-04:002020-03-31T17:31:11.306-04:00Recent Decisions and Legislation March 16, 2020<span style="font-family: "arial" , "helvetica" , sans-serif;">March 16, 2020 </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Recent Articles of Interest</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> An article by Joel R. Brandes, titled" Stare Decisis, Precedent and Dicta, appears in the March 2020 issue of the New York State Bar Journal, Vol.92, No. 2 at page 36. </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> An article by Joel R. Brandes titled "Navigating the Matrimonial Preliminary Conference So You Don’t Sink the Ship". appears in the New York State Bar Association Family Law Review, Winter 2020, Vol. 52, No. 1.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> "Custody Rights of Non-Biological Parents," by Joel R. Brandes appears in the New York Law Journal, March 12, 2020 (Click here for article)</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Court Rules and Legislation – For those who missed our last issue</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. (See https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf) </span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;">Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2020. These revisions reflect the required statutory adjustment on March 1, 2020 of the combined income cap under the Child Support Standards Act from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $184,000 to $192,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2020 in the Self Support Reserve from $16,861.50, to $17,226 and in the federal Poverty Level Income for a single person from $12,490 to $12,760.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;">Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted at</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;">http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;">Uncontested Divorce Forms revised March 1, 2020 reflecting these changes as well as revisions relating to applications for child support services are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">(See http://ww2.nycourts.gov/divorce/legislationandcourtrules.shtml) </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, First Department</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Credit against child support for payment of room and board at college not mandatory</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Matter of Deborah R. V Dean E. H., --- N.Y.S.3d ----, 2020 WL 1056521, 2020 N.Y. Slip Op. 01564 (1st Dept., 2020) the Appellate Division held that Family Court properly denied respondent’s request for a credit for the child’s college room and board expenses. A credit against child support for room and board expenses “is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Divison, Third Department</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Where husband’s actual income less than reported on his W-2 income tax form Court imputed income based upon evidence of his actual income. Duration of maintenance award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Bell-Vesely v Vesely, --- N.Y.S.3d ----, 2020 WL 930505, 2020 N.Y. Slip Op. 01415 (3d Dept.,2020) Plaintiff (wife) and defendant (husband) were married in 1996 and were the parents of a son (born in 1994) and a daughter (born in 1999). In July 2016, the wife commenced an action for divorce. Supreme Court granted a judgment of divorce, which, among other things, equally divided certain marital property and directed the husband to pay maintenance to the wife of $164.86 per month for seven years and child support for the daughter of $614.66 per month based on his imputed income of $49,000. The court also declined to award the wife additional counsel fees and determined that the sum remaining in the husband’s Wells Fargo brokerage account was separate property not subject to equitable distribution.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division held that “because imputed income more accurately reflects a party’s earning capacity and, presumably, his or her ability to pay, it may be attributed to a party as long as the court articulates the basis for imputation and the record evidence supports the calculations”. In determining a party’s child support or spousal maintenance obligation, a court may exercise its discretion by imputing income where there is clear and undisputed evidence of a party’s actual income during the pendency of the proceeding. The record supported Supreme Court’s determination that the husband’s actual income in 2016 was $49,000, notwithstanding the fact that his 2016 W–2 form reported income of approximately $91,000. The discrepancy pertained to a lump-sum loan/bonus payment of $350,000 that the husband received up front in January 2012. The husband was required to sign a promissory note requiring repayment of the loan/bonus in the event that his employment ended within a defined time. The loan/bonus proportionately transformed into debt when the husband left his employment prior to December 2021.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division rejected the wife’s contention that Supreme Court erred in determining the duration of maintenance to be seven, instead of eight, years. The husband’s seven-year term was presumably based on the formula for postdivorce maintenance set forth in Domestic Relations Law § 236(B)(6)(f). Under that formula, where, as here, the parties are married for 20 years, the duration can be set at between 30–40% of the term – which would allow a maximum duration of eight years. It observed that the duration of a maintenance award pursuant to this formula is discretionary, “and the award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered”.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> <span style="white-space: pre;"> </span>The Appellate Division held that Supreme Court erred in not ordering the husband to maintain the daughter’s health insurance or to pay his share of the daughter’s uninsured medical expenses. “Where the child is presently covered by health insurance benefits, the court shall direct in the order of support that such coverage be maintained” (Domestic Relations Law § 240[c][1]). Generally, “[i]f the non-custodial parent is ordered to provide such benefits, the custodial parent’s pro rata share of such costs shall be deducted from the basic support obligation” (Domestic Relations Law § 240[1–b] [c][5][ii]). Further, “the court shall pro rate each parent’s share of reasonable health care expenses not reimbursed or paid by insurance ... in the same proportion as each parent’s income is to the combined parental income” (Domestic Relations Law § 240[1–b] [c][5][v]). The husband testified that he carried and intended to maintain health insurance for the daughter. Thus, the court erred when it did not order the husband to maintain health insurance for her. In addition, the wife’s pro rata share of the cost of such health insurance, which was 41%, had to be deducted from the basic child support obligation (see Domestic Relations Law § 240[1–b] [c][5][ii]). As for the daughter’s uninsured medical expenses, the husband and the wife were directed to pay their pro rata share thereof, 59% and 41%, respectively.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">By his silence the father gave implied consent to the college chosen. Mother did not waive right to challenge father’s claims regarding his annual income simply because she previously signed joint tax returns that reported a lower income.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Matter of Susko v Susko, --- N.Y.S.3d ----, 2020 WL 1056323, 2020 N.Y. Slip Op. 01536 (3d Dept.,2020) the mother testified that she kept the father informed of the colleges that the child was considering, told him promptly that the child had been accepted at the chosen college and then provided him with full information about that school’s cost and the child’s financial aid award. She repeatedly asked the father whether he consented to this college and how much he would contribute, but he gave only evasive responses. She testified that the father never voiced any express objection to the chosen college; on the contrary, he participated in completing financial aid documentation for that school, responded, “[T]hat is great” when he was informed by email of the child’s acceptance and paid $450 as half of the initial deposit without objection. Thereafter, however, he paid nothing more. The father testified that he did not consent to the chosen college because he could not afford it, but he acknowledged that he had never expressly stated that he did not consent to that school. The Appellate Division held that this fully supported the finding that the father gave implied consent to the chosen college and, therefore, that he violated the party’s agreement by failing to make a contribution to its cost commensurate with his ability to pay.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division held that where, as here, “the parties expressly undertook an obligation to contribute toward the cost of the child’s college education, but did not precisely define the extent of their obligations, Family Court should proceed to consider the parties’ financial means and ability to contribute and determine their respective obligations by assessing their pro rata shares of their combined parental income, as the Support Magistrate did here.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span> The Appellate Division also held that the mother did not waive her right to challenge the father’s claims regarding his annual income simply because she had previously signed joint tax returns that reported a lower income (Harrington v. Harrington, 93 A.D.3d 1092, 1093–1094, 941 N.Y.S.2d 320 [2012]).</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>Family Court erred in finding that the Support Magistrate properly credited one third of the father’s total child support obligation over 40 weeks against his annual share of the child’s college costs. The agreement provided that the father’s child support payments should be “take[n] into consideration” in determining the parties’ obligations to share college costs. “In the absence of specific contractual language, the availability and amount of such a credit depend upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”. Since the purpose of a child support credit against college costs is to avoid duplication, it covers only those expenses associated with the child’s room and board, rather than college tuition.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Editor’s note: In Mahoney-Buntzman v Buntzman, 881 N.Y.S.2d 369 (2009) the Court of Appeals held that a party to litigation may not take a position contrary to a position taken in an income tax return</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">March 1, 2020</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Court Rules and Legislation</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. (See https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf) </span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;">Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2020. These revisions reflect the required statutory adjustment on March 1, 2020 of the combined income cap under the Child Support Standards Act from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $184,000 to $192,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2020 in the Self Support Reserve from $16,861.50, to $17,226 and in the federal Poverty Level Income for a single person from $12,490 to $12,760.</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;">Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted at</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;">http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml</span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;">Uncontested Divorce Forms revised March 1, 2020 reflecting these changes as well as revisions relating to applications for child support services are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">(See http://ww2.nycourts.gov/divorce/legislationandcourtrules.shtml) </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, Third Department</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">In absence of persuasive proof that mother’s “ability to earn sufficient means to pay child support was any different than the income that she was earning, there was no abuse of discretion in refusing to impute additional income to her</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> <span style="white-space: pre;"> </span>In Matter of O’Brien v Rutland, -- N.Y.S.3d ----, 2020 WL 825698, 2020 N.Y. Slip Op. 01222 (3d Dept.,2020) the daughter began living exclusively with the mother in 2015, prompting the mother to file, as is relevant here, a 2016 support petition with regard to her. On appeal from the order of support the Appellate Division noted that the father’s obligation to support the daughter ceased when she reached 21 years of age during the pendency of the appeal (see Family Ct Act § 413[1][a]). In the absence of a continuing support obligation, the mother argued that this appeal is moot. The Appellate Division pointed out that “where a final order of support ‘retroactively sets a higher rate than that paid during the pendency of the [proceeding, thereby] creating an immediate arrearage,’ credit should be given regarding such arrearage” (Matter of Tompkins County Support Collection Unit v. Chamberlain, 305 A.D.2d 813, 814, 758 N.Y.S.2d 542 [2003]. Inasmuch as those arrears exist here and were still being paid by the father, the appeal was not moot. The Appellate Division held that in the absence of persuasive proof that the mother’s “ability to earn sufficient means to pay child support” was any different than the income that she was earning, there was no abuse of discretion in refusing to impute additional income to her. It also held that Family Court should have sustained the father’s objection to the Support Magistrate omitting rent, admittedly paid to the mother by her fiancé́, from her income (see Family Ct Act § 413[1][f][1]; Matter of Carr v. Carr, 309 A.D.2d 1001, 1004, 765 N.Y.S.2d 688 [2003]).-</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Not necessary for Family Court to dismiss visitation petitions because they were unsworn. Verification of a visitation petition is not required by CPLR 3020 or Family Ct Act article 6</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> In Matter of Shawn MM v Jasmine LL, 2020 WL 825695 (3d Dept., 2020) the Appellate Division held that although Family Court is not required to hold a hearing in every case, where modification of a custody order is sought, a hearing should generally be conducted “unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests. In determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, it construes the pleadings liberally and afford the petitioner the benefit of every favorable inference. In its August 2018 order awarding sole custody to the mother upon the father’s default, Family Court “ordered that the rights are reserved for [the father] to file for custody and/or visitation.” Because the order did not otherwise address visitation, it appeared that Family Court did not intend to require the father to demonstrate a change in circumstances in order to petition for visitation </span><br />
<span style="font-family: "arial" , "helvetica" , sans-serif;">The Appellate Division held that it was not necessary for Family Court to dismiss the petitions because they were unsworn, given that verification of a visitation petition is not required by either CPLR 3020 or Family Ct Act article 6 (see generally Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3020:3, C3020:5).</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Family Court’s characterization that an order is based on consent is not controlling when the record shows a party objected to the order. </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Matter of Adam V v Ashli W, --- N.Y.S.3d ----, 2020 WL 825604, 2020 N.Y. Slip Op. 01231(3d Dept.,2020) the Appellate Division pointed out that no appeal lies from an order entered upon the consent of the appealing party, since a party who consents to an order is not aggrieved thereby, except to the extent that it differs from or exceeds the consent (Hatsis v. Hatsis, 122 A.D.2d 111, 111, 504 N.Y.S.2d 508 [1986]). Family Court’s characterization that an order is based on consent is not controlling when the record shows a party objected to the order. The record revealed that, during the placement of the agreement upon the record, the mother objected to the exchange times stating that she would be “hard pressed to make 9:00 a.m. on Sundays.” The mother also sought clarification as to the documentation required to prove a change of residency. Upon receipt of the proposed order, Family Court was notified of the mother’s objections by written correspondence, specifically, that the mother objected to the father’s exchange times and, further, to providing multiple documents to prove her residency. The mother clearly did not consent to the terms contained in the amended order, and, thus the order was appealable. Consequently, because the amended order failed to set forth the terms to which the parties agreed in open court, it was modified accordingly.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Supreme Court</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Supreme Court holds that Claim for spousal support that was necessary prior to spouse’s death does not abate upon death of spouse.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">In Dean v Dean, --- N.Y.S.3d ----, 2020 WL 769994, 2020 N.Y. Slip Op. 20042 2020 WL 769994 (Sup. Ct., 2020) the Supreme Court held that a claim for spousal support under Article 4 of the Family Court Act abates upon the death of a party. However, it does not abate the claim for support that was necessary prior to the spouse’s death. If the decedent was entitled to support under New York law and experienced hard times during the pendency of this action, that claim survives her death and can be maintained by her representative, the executor.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">February 16, 2020</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, First Department</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Best Interest of the Child test applies to relocation petition where no prior custody order.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Michaels v Michaels, --- N.Y.S.3d ----, 2020 WL 536320, 2020 N.Y. Slip Op. 00815 (1st Dept., 2020) the Appellate Division held that where there is no prior custody order in place at the time of the relocation petition, the test that should be applied is that of the best interests of the children, and relocation is but one factor in determining the children’s best interests (see Matter of Michael B. [Lillian B.], 145 AD3d 425, 430 [1st Dept 2016]; see also Arthur v. Galletti, 176 AD3d 412 [1st Dept 2019]; Matter of Saperston v. Holdaway, 93 AD3d 1271 [4th Dept 2012], appeal dismissed 19 NY3d 887 [2012]).</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Counsel Fee Award to Wife Precluded by failure to comply with 22 NYCRR 1400.3</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Adjmi v Tawil, --- N.Y.S.3d ----, 2020 WL 573175, 2020 N.Y. Slip Op. 00911 (1st Dept.,2020) the Appellate Division affirmed a judgment which, inter alia, directed plaintiff husband to pay $7,000 monthly in child support and the parties’ child’s tuition at a Jewish day school from preschool through 12th grade. The trial record demonstrated that the child support award amply provided for the child’s actual needs. As the parties separated while defendant was still pregnant, it could not be said that a standard of living was established for the child. Contrary to defendant’s contention, plaintiff’s wealth alone was insufficient to warrant doubling the child support award.<span style="white-space: pre;"> </span>The trial court providently exercised its discretion in directing plaintiff to pay 100% of the child’s tuition at a Jewish day school from preschool through 12th grade (see Domestic Relations Law § 240[1–b] [c][7]). The evidence established that two of defendant’s children and three of plaintiff’s children attended Jewish day schools and that plaintiff actively supported religious education and could afford the tuition.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division reversed the award of counsel fees to defendant because it was is precluded by her attorney’s failure to comply with the rules pertaining to domestic relations matters (22 NYCRR part 1400). Defendant was represented in these matrimonial proceedings by her father, a patent lawyer, for more than a year. She did not execute a retainer agreement until shortly before the trial, and she testified that her father had never sent her an itemized bill (see 22 NYCRR 1400.3).</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, Fourth Department</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division treats decision appealed from as an appealable order</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Nicol v Nicol, --- N.Y.S.3d ----, 2020 WL 501424, 2020 N.Y. Slip Op. 00740 (4th Dept., 2020) the Appellate Division held that the court erred in summarily denying the plaintiffs motion insofar as it sought a downward modification of his child support obligation with respect to the health insurance premiums, on the ground that plaintiff had, in effect, implicitly waived his right to seek a downward modification by failing to take remedial action after defendant informed him of the cost increase for the children’s health insurance premiums. It is well settled that a waiver “‘should not be lightly presumed’ and must be based on ‘a clear manifestation of intent’ to relinquish” a known right. Plaintiff’s inaction here did not constitute a waiver inasmuch as inaction or silence cannot constitute a waiver.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>The dissent disagreed with the majority’s decision to treat the decision appealed from as an order, and field a dissent. It observed that in 1987, this Court held that “[n]o appeal lies from a mere decision” (Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 (4th Dept. 1987)). In reaching that conclusion, it relied on, inter alia, CPLR 5512(a), titled “appealable paper,” which provides that “[a]n initial appeal shall be taken from the judgment or order of the court of original instance.” Until today, it had routinely followed that settled principle as do all of the other Departments of the Appellate Division, as well as the Court of Appeals. Here, the record included a decision that was denominated only as a decision and has no ordering paragraphs and, in his notice of appeal, plaintiff explicitly appealed “from the Decision”. The majority believed that the decision was an appealable paper because it meets “the essential requirements of an order.” To support that proposition, the majority relied on Matter of Louka v. Shehatou, 67 A.D.3d 1476, 888 N.Y.S.2d 841(4th Dept. 2009) ), where this Court determined that a letter would be treated as an order inasmuch as “the Referee filed the letter with the Family Court Clerk and ... the letter resolved the motion and advised the father that he had a right to appeal”. Although the decision here was filed and resolved the motion, there was no directive in the decision that plaintiff had the right to appeal from it. Thus, under the majority’s determination, an appeal may lie from a mere decision if it was filed and if it resolved the issues presented by the parties, the appealable paper no longer needs to be labeled as an order and it no longer needs any ordering paragraphs, and the appellant can still appeal even if he or she refers to the paper on appeal as a “decision” in the notice of appeal.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">February 1, 2020</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, First Department</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Non-voluntary union dues may be deducted from income for calculating child support</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Matter of Julien v Ware, --- N.Y.S.3d ----, 2020 WL 356132, 2020 N.Y. Slip Op. 00414 (2020) a child support proceeding the Appellate Division held that although no deduction from income for union dues is specifically mandated by the Family Court Act, there is an allowable deduction for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (Family Ct Act § 413[1][b][5][vii][A] ). Nonvoluntary union dues may be deducted under this category (see 33A Am Jur 2d, Federal Taxation ¶ 16502). However, such expenses are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Non-custodial Parent May Commence Support Proceeding</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Matter of Anthony S v Monique T.B., --- N.Y.S.3d ----, 2020 WL 283492, 2020 N.Y. Slip Op. 00382 (1st Dept., 2020) the Appellate Division held that the Family Court Act (FCA) does not prohibit a non-custodial parent from commencing a support proceeding (see FCA § 422[a] [“A parent or guardian, of a child, or other person in loco parentis, . . . may file a petition in behalf of a dependent relative”]). While a shared custodial arrangement, the custodial parent cannot be required to pay child support as a matter of law (Rubin v. Della Salla, 107 AD3d 60, 67 [1st Dept. 2013]), the unusual facts of this case did not demonstrate a shared custodial arrangement. Respondent was admittedly the non-custodial parent and had not contributed toward the children’s support since the filing of the petitions; no other party has stepped forward to file a support petition, including the paternal grandmother who respondent claimed was acting as the children’s primary caretaker; and no evidence was submitted that either child was emancipated for the purposes of child support at the time the petitions were filed. Under the circumstances, there was no reason to disturb the Support Magistrate’s determination that petitioner was credibly seeking support on behalf of the subject children and their paternal grandmother (see, e.g. Matter of Nasir J., 35 AD3d 299 [1st Dept. 2006]).</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, Second Department.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Second Department holds it is Not error to allow interpreter for non-English speaking litigant to appear by Skype</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Matter of Omnamm L v Kumar L, 177 A.D.3d 973, 113 N.Y.S.3d 186, 2019 N.Y. Slip Op. 08563 (2d Dept.,2019) an abuse proceeding, the Appellate Division held that the Family Court did not err in proceeding with the fact-finding hearing on the first day, when the interpreter appeared remotely over Skype. Non–English speaking litigants are entitled to an interpreter at proceedings to enable them to participate meaningfully in their trial and assist in their own defense. The procedures utilized by the court allowed the father to meaningfully participate in the hearing (see 22 NYCRR 217.1[a]).</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Hair follicle testing records are admissible if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Matter of Sincere S.,176 A.D.3d 1072, 113 N.Y.S.3d 91, 2019 N.Y. Slip Op. 07588 (2d Dept.,2019) the Appellate Division agreed with the Family Court’s determination that the hair follicle testing records were admissible. While the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records. (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 209), such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 209, 97 N.Y.S.3d 286). The DSS presented testimony from a case manager of the Family Court Treatment Alternatives for Safer Communities program that the hair follicle test results provided by an outside laboratory were incorporated into her office’s reports and routinely relied upon to issue hair follicle test reports. Thus, the DSS established the admissibility of the hair follicle test results admitted as Petitioner’s Exhibits 5 and 6 (see State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 1296, 956 N.Y.S.2d 196). The DSS also established the admissibility of the hair follicle test reports admitted as Petitioner’s Exhibits 3 and 4 by establishing that each participant in the chain that produced the reports acted within the course of regular business conduct (see Family Ct Act § 1046[a][iv]; Matter of Grace J. [Louise J.], 140 A.D.3d 1166, 1167, 33 N.Y.S.3d 758).<span style="white-space: pre;"> </span></span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">No credit against child support and maintenance for interim support where husband already obligated by contract for those payments</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> <span style="white-space: pre;"> </span>In Allen v Allen, --- N.Y.S.3d ----, 2020 WL 239080, 2020 N.Y. Slip Op. 00331 (3d Dept., 2020) Plaintiff (wife) and the defendant (husband) were married in 1999 and had four children. The wife commenced the action for divorce in January 2013. The Appellate Division, among other things, rejected the husbands argument that Supreme Court erred in failing to provide him a credit against his child support and maintenance obligations because he paid for the wife’s shelter costs, including property taxes, homeowner’s insurance and electricity bills while she and the children resided in the marital residence. Because the husband was already contractually obligated to pay these expenses on his separate property, and a party in a dispute over child support or maintenance cannot get credit for performing their own pre-existing legal obligations to third parties, this contention had no merit.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division held that Supreme Court did not abuse its discretion in holding the wife’s child support payments to the husband in abeyance until the husband paid, in full, any amounts due to the wife pursuant to the judgment of divorce. The husband expressed hostility regarding his court-ordered obligation to pay the wife maintenance, stating that he would rather go to jail than pay maintenance. Due to this refusal, a large sum of arrears had accrued that resulted in a judgment to the wife for nearly $45,000. Therefore, given the rationale for holding the wife’s child support obligation in abeyance, it did not find that Supreme Court abused its discretion.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">January 16, 2020</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">NY Order 20-0001 amended the Local Rules of the Appellate Division, Second Department dealing with the mediation program. </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">22 NYCRR 670.3 (d) (2) (ii) was amended to require that Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions is required to attend the mediation. (d) (ii) (v) was amended to provide that failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">The amendments read as follows:</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">22 NYCRR § 670.3. Initial Filings; Active Management of Causes; Settlement or Mediation Program</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> (d) Mandatory Civil Appeals Mediation Program</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> (2) Mandatory Mediation; Notice of Reference</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> (ii) Upon such designation, the Clerk of the Court, shall cause to be issued a Notice of Reference, which shall direct the parties to the appeal and their counsel, as well as any other individual whose attendance the court may require, to attend an initial, ninety-minute session, without charge, before a designated Special Master identified in that Notice. The Notice of Reference shall set forth the date, time, and place of the initial mediation session. Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions and parties who are natural persons are required to attend the mediation in person, In the event that a party is not a natural’ person but a legal entity, such as a corporation or limited liability company, such entity is required to have present at the mediation a representative of the entity who has the authority to make binding decisions on behalf of the entity.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">(v) Mediation sessions shall be deemed appearances before this court. Failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions pursuant to Part 130 of the Rules of the Chief Administer of the Courts (22 NYCRR Part 130). The initial mediation session shall constitute an actual engagement before this court for the purposes of Part 125 of the Rules of the Chief Administrator of the Courts (22 NYCRR Part 125). </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">New Form added to Uncontested Divorce Packet</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">By Administrative order 284-2019 a Short Form Application for Child Support Services in Supreme Court was adopted effective December 1, 2019, for use in uncontested divorce actions.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Father deprived of the effective assistance of counsel in enforcement proceeding. Appropriate standard to apply in evaluating a claim of ineffective assistance is “meaningful representation standard”</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Matter of Miller v. DiPalma, --- N.Y.S.3d ----, 2020 WL 88886, 2020 N.Y. Slip Op. 00140 (2d Dept.,2020) the Appellate Division held that the father was deprived of the effective assistance of counsel at a hearing on the mother’s petition for violation of an order of child support. In support proceedings such as this one, “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 defense at the hearing was that because of a back injury, he was unable to continue working as a mail carrier beginning in January 2018 and that, prior to obtaining a new position at the post office in March 2019, he searched for different work. Notably, despite being advised on multiple occasions that the father was required to provide a financial disclosure affidavit, tax forms, proof that he was diligently searching for employment, and certified medical records, counsel failed to procure the father’s medical records or provide the court with any relevant financial documentation. The father’s counsel also failed to call any witnesses to testify as to the effects of the father’s back injury, subpoena his treating physician, or obtain a medical affidavit. The Family Court made specific reference to the lack of any credible medical testimony, financial disclosure affidavit, tax returns, or proof of a job search in its determination that the father failed to refute the mother’s prima facie showing of willfulness. The Appellate Division held that Counsel’s failure to obtain relevant medical information or to procure financial and job search records that may have supported the father’s contention constituted a failure to meaningfully represent the father, and he is entitled to a new hearing on the violation petition.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, Third Department</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">In absence of parties’ actual separation at time of execution of separation agreement or immediately thereafter, separation agreement is void ab initio. Provision that agreement not invalidated without a subsequent writing void where agreement itself, rather than any of its components, is brought to an end. Use of marital funds to pay trial counsel is not a waste of assets.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>In Martin v Martin, --- N.Y.S.3d ----, 2019 WL 7173295, 2019 N.Y. Slip Op. 09345 (3d Dept., 2019) the parties were married in 1991, and executed a separation agreement in 2005 that provided for the distribution of their assets, but continued to live together until 2015. The wife commenced the action in October 2015, with the husband counterclaiming for a declaration that the separation agreement was void. After trial, the Supreme Court determined that the parties’ separation agreement was void, distributed the marital assets and debts, and awarded the husband $25,000 in counsel fees. </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division held, inter alia, that Supreme Court properly found that the separation agreement was void. It is fundamental that, in the absence of the parties’ actual separation at the time of execution of a separation agreement or immediately thereafter, a separation agreement is void ab initio. The parties lived together for a decade after entering into the separation agreement and, although more than mere cohabitation was required to render the agreement void (Rosenhaus v. Rosenhaus, 121 A.D.2d 707, 708, 503 N.Y.S.2d 892 [1986], they also filed joint tax returns, maintained a joint checking account and had joint credit cards. Supreme Court further credited the testimony of the husband that the parties lived as a married couple and that the wife handled their financial affairs throughout that period, as well as that they only executed the separation agreement so that the wife could take out more college loans for her daughters from a previous marriage. To the extent that the wife raised the issue, the provision in the separation agreement providing that the agreement shall not be invalidated without a subsequent writing was itself void where, as here, the agreement itself, rather than any of its components, is brought to an end.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division held, inter alia, that Supreme Court abused its discretion finding that the wife wastefully dissipated or improperly transferred marital funds that she deposited in a separate account around the time this action was commenced, insofar as $15,000 of the funds were legitimately paid to her trial counsel.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span> Finally, Supreme Court was within its right to direct that the distributive award to the husband be reduced to a money judgment and authorize a qualified domestic relations order so that those monies could be deducted from the wife’s pension.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">Non-biological, non-adoptive partner had standing, as a parent, to seek visitation and custody under Domestic Relations Law § 70. Family Court did not err in applying the conception test to determine petitioner’s standing without regard to her subsequent relationship with the child.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"> <span style="white-space: pre;"> </span>In Matter of Heather NN v Vinette OO, 2019 WL 7173471 (3d Dept.,2019) Petitioner commenced a proceeding in 2016 seeking joint legal custody and parenting time, following the issuance of Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016)). Family Court found that petitioner had standing to seek legal custody and parenting time. The court granted sole legal custody and physical placement of the child to the respondent and awarded parenting time to petitioner in a graduated schedule of parenting time, to begin with one-hour weekly in therapeutic counseling sessions for eight weeks. </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span> Respondent was the biological mother of a child (born in 2008) who was conceived via artificial insemination during a same-sex relationship between respondent and petitioner. The parties separated in 2009, approximately one year after the child’s birth, and the child remained with the respondent. Respondent permitted petitioner to have parenting time for approximately two years, but then terminated all visitation. Thereafter, respondent occasionally sent pictures of the child to petitioner and permitted petitioner to speak with the child on the telephone, but directed petitioner not to use her real name or tell the child who she was. The petitioner had not been allowed any parenting time since 2010. Petitioner and respondent met in 2004 at a counseling facility in Brooklyn where petitioner was required to undergo substance abuse counseling. The parties entered into an intimate relationship and, after petitioner completed her counseling in 2005, respondent moved from Brooklyn to the City of Binghamton, to live with petitioner in a home that petitioner owned there. Several months after respondent began residing with petitioner, petitioner’s home was searched pursuant to a warrant and petitioner was arrested for the sale of narcotics. She was incarcerated for approximately 14 months in 2006 and 2007. The parties continued their relationship during this period. Respondent continued to reside in petitioner’s home, visited petitioner regularly, and used a power of attorney to manage petitioner’s business affairs, including several rental properties. Respondent wrote letters to petitioner – subsequently admitted into evidence – in which respondent stated her desire to marry petitioner and have children with her. Following petitioner’s release, the parties agreed to conceive a child using artificial insemination. Both parties attended appointments with a fertility doctor. There were two inseminations; petitioner was present and injected the sperm on at least one of these occasions. Petitioner’s credit card was used to pay the related expenses. Petitioner attended at least one baby shower where friends and family members of both parties were present. Petitioner attended respondent’s prenatal appointments, was present when the child was born, and cut the child’s umbilical cord. The child was given two last names, reflecting the parties’ two surnames. Petitioner testified that the child was named, in part, after petitioner’s mother. Petitioner assisted in buying items for the child and shared day-care costs with respondent. The two parties were listed as the child’s two mothers in some of her medical and immunization records. Respondent testified that she told petitioner that the child would be part of petitioner’s life if they continued to reside together and also if they separated, so long as petitioner did not engage in illegal activities, but that if petitioner did so engage, she would not have a role in the child’s life. </span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division observed that in 2016 the Court of Appeals expanded the statutory definition of a parent, holding that when a biological parent’s former 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” (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14, 39 N.Y.S.3d 89, 61 N.E.3d 488. The Court declined to find that any single test would cover all potential circumstances and held open the possibility that parenthood could also be established by other means. Upon this record, the Appellate Division held that Family Court correctly determined that petitioner fell within the statutory definition of a parent and, thus, had standing in this proceeding. Contrary to respondent’s argument, Family Court did not err in applying the conception test to determine petitioner’s standing rather than a “functional” test that would have examined the relationship between petitioner and the child after the child’s birth (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 27, 39 N.Y.S.3d 89, 61 N.E.3d 488). The evidence fully established that the parties planned jointly for the child’s conception, participated jointly in the process of conceiving the child, planned jointly for her birth, and planned to raise her together. Petitioner satisfied her burden to prove by clear and convincing evidence that she and respondent entered into an agreement to conceive the child and raise her as co-parents. Thus, she established her standing to seek custody and parenting time under the conception test without regard to her subsequent relationship with the child.</span><br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;">According to some commentators, in the last twenty-five years the de facto parent doctrine has made inroads on parental authority. A growing number of states have given rights to de facto parents to seek custody or visitation, using that term or similar terms such as “in loco parentis,” “psychological parent,” “equitable parent,” and establishment of a “child-parent relationship.” At least twenty-eight states have granted such rights by statute or case law. </span><br />
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Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-66987919886721243872020-01-11T08:48:00.000-05:002020-01-11T08:48:27.754-05:00Recent Decisions and Legislation January 1, 2020<br />
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span class="ember-view"><b><span style="border: 1pt none windowtext; padding: 0in;">The
October 2019 update to my 9 volume treatise, </span></b></span><a href="https://store.legal.thomsonreuters.com/law-products/Treatises/Law-and-The-Family-New-York-2d-New-York-Practice-Library/p/100022294"><b><span style="border: 1pt none; color: #c00000; padding: 0in;">Law and The Family New York, 2d</span></b></a><span class="ember-view"><b><span style="border: 1pt none windowtext; padding: 0in;"> has been released and is available
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</w:wrap></span></v:imagedata></v:shape><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-bookmark: _Hlk12267657;"></span><span style="mso-bookmark: _Hlk12267657;"><span class="ember-view"><b><span style="border: 1pt none windowtext; padding: 0in;"><span style="color: #5b9bd5; mso-themecolor: accent1;">Law and the Family York Forms</span>, my 5 volume legal
form set, has been released in a softcover edition, and is now titled </span></b></span></span><a href="https://store.legal.thomsonreuters.com/law-products/Treatises/Law-and-The-Family-New-York-Forms-2019-ed-New-York-Practice-Library/p/106618913"><span style="mso-bookmark: _Hlk12267657;"><b><span style="border: 1pt none; color: #c00000; padding: 0in;">Law and the Family New York Forms, 2019 Edition</span></b></span></a><span style="mso-bookmark: _Hlk12267657;"><span class="ember-view"><b><span style="border: 1pt none windowtext; padding: 0in;">. It is available on the
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<span style="mso-bookmark: _Hlk12267657;"><b><u><span style="color: red;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Recent
Legislation <o:p></o:p></span></span></u></b></span></div>
<h1>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-bookmark: _Hlk12267657;"><span style="font-size: 11.0pt; line-height: 141%; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman";">Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well
as of the Social Services Law section 358-a </span></span><span style="mso-bookmark: _Hlk12267657;"><span style="color: black; font-size: 11.0pt; font-weight: normal; line-height: 141%;"><o:p></o:p></span></span></span></h1>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>Laws of
2019, Ch 732 amended Family Court Act §§1055 and 1089<span style="mso-spacerun: yes;"> </span>as well as of the Social Services Law section
358-a, to require an agency with which a child has been placed, either
voluntarily or as a result of an abuse or neglect finding, or to whom guardianship
and custody has been transferred as a result of the child being freed for
adoption, to report to the attorney for the child not later than ten days in
advance of any change in the child's placement status and not later than the
next business day in any case in which an emergency placement change has been
made. According to the memorandum in support of the legislation, first, it
requires a report within five days of the date that any report of abuse or
maltreatment is found to be indicated. Indicated reports include those naming
the child and, where the subjects of the reports involve the person or persons
caring for the child, reports naming other children in the home.<span style="mso-spacerun: yes;"> </span>It contains an important proviso that such
reports notify the recipients that the information shall be kept confidential,
shall be used only in connection with the child protective, foster care or
related proceedings under the Family Court Act and may not be re-disclosed
except as necessary for such proceeding or proceedings and as authorized by
law. Second, recognizing that fairness also dictates that such notifications be
made to the attorneys for all parties, not simply the attorneys for the
children, the measure requires that, except in cases involving children freed
for adoption, both notices of changes in placement and indicated child
maltreatment reports be conveyed to attorneys for the birth parents. Family
Court Act §1017 was amended by adding a new subdivision 5. Family Court Act,
§1055 (b)(E) was repealed. Family Court Act § 1055 was amended by adding a new
subdivision (j). Family Court Act 1089 (d) 2 (vii) was amended by adding a new
clause (H) and Social Services Law §358-a, subd. 3 was amended by adding a new
paragraph (g).<o:p></o:p></span></span></b></span></div>
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<h1>
<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-bookmark: _Hlk12267657;"><span style="font-size: 11.0pt; line-height: 141%; mso-bidi-font-weight: normal; mso-fareast-font-family: "Times New Roman";">Laws of 2019, Ch 716, enacted and effective December 20, 2019, amended
Domestic Relations Law and the Civil Rights Law. </span></span><span style="mso-bookmark: _Hlk12267657;"><span style="font-size: 11.0pt; font-weight: normal; line-height: 141%; mso-fareast-font-family: "Times New Roman";"><o:p></o:p></span></span></span></h1>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: blue; font-size: 11.0pt;"><span style="mso-tab-count: 1;"> </span></span></b></span><span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;">Domestic Relations Law section 15 was amended to amend
the <o:p></o:p></span></b></span></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: black; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">'Notice to Applicant', which appears on every application
for a marriage license, to include language that informs those seeking a
license that either or both spouses may elect to change their middle name to
his or her current last name, any former last name he or she has had, or the
last name of the other spouse. Domestic Relations Law section 14-a was amended
to include the option of changing a middle name on the marriage license. Civil
Rights Law section 65 was amended to provide that any person may elect to
resume the use of a former middle name upon divorce or annulment and that the
state shall not impose a fee to change the middle name on a state identifying
document due to a change in marital status. The purpose of the amendments is to
allow one or both parties to a marriage to elect to change their middle name on
their marriage license. According to the memorandum in support of the
legislation, many women and men are opting to change their last name upon
marriage but want to keep their former last name in some capacity.<span style="mso-spacerun: yes;"> </span>One popular way to accomplish this is to keep
the former last name as a new or second middle name. Many states allow for such
a change to occur with ease on the marriage license, but New York did not.<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Laws
of 2019, Ch 712 enacted and effective on December 20, 2019, amended Domestic
Relations Law §11-a, subd. 1 a to allow the New York City clerk to designate
additional staff members as he or she deems necessary to officiate marriages.<o:p></o:p></span></span></b></span></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;">Laws
of 2019, Ch 663, enacted on December 12, 2019, effective 90 days after it
becomes a law, amended Family Court Act § 812, subd. 5, and Criminal Procedure
Law § 530.11</span></b></span><span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">.<o:p></o:p></span></b></span></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><br />
<span style="mso-tab-count: 1;"> </span>Family Court Act § 812 and
Criminal Procedure Law § 530.11, include protections for alleged victims of
domestic violence. The statutes placed responsibility upon law enforcement,
prosecutors and the courts to ensure by written notice that victims are made
aware of their rights, of the expectations they may have to obtain assistance
from both the civil and criminal justice systems and of the remedies and
resources available to them. The notice must be in writing in both English and
Spanish and must recite the statutory language verbatim. The required language
in the notice was overly complex. Family Court Act § 812 and Criminal Procedure
Law § 530.11 were amended substantially simplify the language contained in the
notice while, at the same time, expanding the breadth of information it
provides. The amendment also provides that the notice be made available, at
minimum, in plain English, Spanish, Russian and Chinese.<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Laws
of 2019, Ch 627, enacted December 12, 2019, and effective immediately amended
CPLR 3215 (b) to outline the procedure for an inquest on a default judgment.<o:p></o:p></span></span></b></span></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: blue; font-size: 11.0pt;"><span style="mso-tab-count: 1;"> </span></span></b></span><span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">CPLR 3215
(b), as amended<span style="color: blue;"> </span><span style="color: black; mso-themecolor: text1;">provides that a party entitled to judgment may be
permitted to submit, in addition to the proof required by </span>CPLR 3215 <span style="color: black; mso-themecolor: text1;">(f), properly executed affidavits or
affirmations as proof of damages. However, if the defaulting party gives
reasonable notice that it will appear at the inquest, the party seeking damages
may submit any proof required by </span>CPLR 3215 <span style="color: black; mso-themecolor: text1;">(f), by oral testimony of the witnesses in open court or,
after giving reasonable notice that it will do so, by written sworn statements
of the witnesses. If the party seeking judgment gives such notice and submits
proof by written sworn statements, he or she must make all of those witnesses
available for cross-examination.<span style="mso-spacerun: yes;"> </span></span><span style="color: blue;"><o:p></o:p></span></span></b></span></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, First
Department <o:p></o:p></span></span></u></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">In proceeding to establish
standing to assert parental rights in seeking visitation under Domestic
Relations Law § 70, the court has the discretion to direct “more monied” party
to pay the other party’s counsel fee<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>In
Kelly G v Circe H, --- N.Y.S.3d ----, 2019 WL 6869009 (1<sup>st</sup>
Dept.,2019), the Appellate Division held, as a matter of first impression for
the Court, that, in a proceeding to establish standing to assert parental
rights in seeking visitation and custody under Domestic Relations Law § 70, the
court has the discretion to direct the “more monied” party to pay the other
party’s counsel and expert fees under Domestic Relations Law § 237 before that
party has been adjudicated a parent. It affirmed the order granting
respondent’s cross-motion for interim counsel fees to the extent of awarding
her $200,000. The Appellate Division observed that Domestic Relations Law §
237(b), provides, in relevant part, that “upon any application ... concerning
custody, visitation or maintenance of a child, the court may direct a spouse or
parent to pay counsel fees and fees and expenses of experts directly to the
attorney of the other spouse or parent to enable the other party to carry on or
defend the application or proceeding by the other spouse or parent as, in the
court’s discretion, justice requires....” This statute, like Domestic Relations
Law § 70, does not define the term “parent.” In holding that Domestic Relations
Law § 70 “permits a non-biological, non-adoptive parent to achieve standing to
petition for custody and visitation” (Brooke S.B., 28 NY3d at 27), the Court of
Appeals stressed that it “has gone to great lengths to escape the inequitable
results dictated by a needlessly narrow interpretation of the term ‘parent’ ”
(Brooke S.B. at 24). Consonant with that approach, it found that highly inequitable
results would flow in this case from permitting the party with far greater
resources to seek custody as against the child’s primary parent without
allowing that parent to seek counsel fees. Without determining that she is a
parent for purposes beyond the application of Domestic Relations Law § 237(b),
it found that Domestic Relations Law § 237(b) must be read to permit the court
to direct the petitioner to pay respondent’s counsel fees as necessary “to
enable [her] to ... defend the application ... as, in the court’s discretion,
justice requires, having regard to the circumstances of the case and of the
respective parties.”<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, Second
Department<o:p></o:p></span></span></u></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Supreme Court has the discretion
to consider the application for counsel fees, made in opposition papers without
a cross-motion<u><o:p></o:p></u></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>In
Ospina–Cherner, v. Daniel Cherner, --- N.Y.S.3d ----, 2019 WL 7160518 (2d
Dept.,2019) the Appellate Division held that<span style="mso-spacerun: yes;">
</span>Supreme Court had the discretion to consider the defendant’s application
for an award of attorney’s fees, made in his opposition papers to the subject
motion, even though he did not make a cross-motion under CPLR 2215 (see Fried
v. Jacob Holding, Inc., 110 AD3d 56, 65).<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, Fourth
Department<o:p></o:p></span></span></u></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">22 NYCRR part 202 provisions
do not apply to proceedings in the Family Court<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>In
Lopez v Lopez, --- N.Y.S.3d ----, 2019 WL 7044566 (4<sup>th</sup> Dept., 2019)
the Appellate Division rejected the father’s challenges to the order of
reference in this visitation proceeding. The father’s “ ‘argument that the
court erred when it referred this matter to a referee( to hear and report ) in
the absence of exceptional circumstances (see CPLR 4212) was waived, since the
record established that [he] participated in the proceeding before the
[R]eferee without objection. Contrary to the father’s further contention, the
alleged failure of the order of reference to comply with 22 NYCRR 202.43(d) and
22 NYCRR 202.44(a) did not affect its validity because, with one exception not
applicable here (see 22 NYCRR 202.16), “the provisions of 22 NYCRR part 202
apply only to ‘civil actions and proceedings in the Supreme Court and the
County Court,’ not to proceedings in the Family Court” (McDuffie, 154 AD3d at
1309, quoting 22 NYCRR 202.1[a]; see Matter of McDermott v. Berolzheimer, 210
A.D.2d 559, 559–560 [3d Dept 1994] ). It also rejected the father’s contention
that the order on appeal must be reversed because the court confirmed the
Referee’s report before the expiration of the 15–day period set forth in CPLR
4403.<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Although PAS is not routinely
accepted as a scientific theory by New York courts the Court recognizes the effects
of alienating behaviors by a parent <o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In Matter of Krier v Krier, ---
N.Y.S.3d ----, 2019 WL 7043498, 2019 N.Y. Slip Op. 09129 (4<sup>th</sup>
Dept.,2019) the Appellate Division affirmed an order which granted the father
sole legal and physical custody of the child. It concluded that the father
established a sufficient “change in circumstances to warrant an inquiry into
the best interests of the child” based on both the expert testimony that the
child was demonstrating elements of parental alienation and “‘the continued
deterioration of the parties’ relationship’. It concluded that there was a
sound and substantial basis for the determination that an award of sole custody
to the father was in the child’s best interests. The court properly weighed the
relevant factors and found that all weighed in favor of placement with the
father except the child’s wishes. Although the child was 15 years old at the
time of the hearing, the court properly determined that his wishes were not
entitled to great weight since the child was so profoundly influenced by his
mother “that he cannot perceive a difference between” the father’s abandonment
of the marriage and the father’s abandonment of him and that it was in the
child’s best interests to reside with the father despite his wishes to the
contrary.<span style="mso-spacerun: yes;"> </span>Contrary to the contention of
the mother and the AFC, the court did not improperly rely on the presence of
“parental alienation syndrome” (PAS) in making its custody determination. The
father’s expert did not conclude that PAS, as a diagnosis, existed in this case
and rather testified that the type of conduct in which the mother engaged
resulted in the child becoming alienated from the father. Although PAS is not
routinely accepted as a scientific theory by New York courts (see Matter of
Montoya v. Davis, 156 AD3d 132, 135 n 5 [3d Dept 2017]), the Court has
repeatedly recognized the effects of alienating behaviors by a parent on
children in custody and visitation determinations.<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>The
Appellate Division agreed with the mother and the AFC that the court exceeded
its jurisdiction in suspending maintenance payments to the mother since the
parties’ separation agreement setting forth that obligation is an independent contract.
Family Court is a court of limited jurisdiction and cannot exercise powers
beyond those granted to it by statute, and “[i]t generally has no subject
matter jurisdiction to reform, set aside or modify the terms of a valid
separation agreement” (Johna M.S., 10 NY3d at 366).<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Fourth Department allows
attorneys fees by affidavit holding “attorney’s fees should not be awarded
without a hearing or requiring proof by affidavit substantiating the attorney’s
fees requested”.<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk12267657;"><b style="mso-bidi-font-weight: normal;"><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>In
Brinson v Brinson, --- N.Y.S.3d ----, 2019 WL 7043519 (4<sup>th</sup> Dept.,
2019) the Appellate Division held that the court should have conducted an
evidentiary hearing before granting respondent’s application for an award of
his attorney’s fees since respondent failed to furnish sufficient documentation
of the value of the services performed by the attorney. This issue was
preserved since petitioner contested previous requests for attorney’s fees, at
the final appearance respondent first requested the $3,000 in attorney’s fees
but submitted no supporting documentation, and the petitioner was not afforded
an adequate opportunity to dispute the same. It held that attorney’s fees
should not be awarded without conducting a hearing or requiring proof by affidavit
substantiating the attorney’s fees requested. (Moses v. Moses, 231 A.D.2d 850,
850 [4th Dept 1996]; see Matthews v. Matthews, 238 A.D.2d 926, 927 [4th Dept
1997]). An award for attorney’s fees is improper absent documentation of the
submitted value of the services performed (see Johnston v. Johnston, 63 AD3d
1555, 1556 [4th Dept 2009]; Marshall v. Marshall, 1 AD3d 323, 324 [2d Dept
2003]; cf. Ackerman v. Midura, 145 AD3d 647, 648 [2d Dept 2016] ). Thus, it
concluded that “it was an abuse of discretion to award the amount of counsel
fees requested, without affording [petitioner] the opportunity to elicit
further information on the reasonable value of those services” (Matter of Kobel
v. Martelli, 112 A.D.2d 756, 757 [4th Dept 1985]). It modified the order and
judgment by vacating the award of attorney’s fees and remitted the matter to
Supreme Court for a determination regarding attorney’s fees based upon proper
proof (see Matthews, 238 A.D.2d at 926; Moses, 231 A.D.2d at 850).<o:p></o:p></span></span></b></span></div>
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<span class="MsoHyperlink"><b><span style="font-size: 11.0pt; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><span style="font-family: "arial" , "helvetica" , sans-serif;">December 16, 2019<o:p></o:p></span></span></b></span></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><strong><u><span style="color: red; font-size: 11pt; line-height: 105%;">Announcement</span></u></strong><strong><u><span style="font-size: 11pt; line-height: 105%;"> <o:p></o:p></span></u></strong></span></div>
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<v:shape alt="New York Law Journal" id="Picture_x0020_10" o:spid="_x0000_s1026" style="height: 33.6pt; margin-left: 0; margin-top: 0; mso-height-percent: 0; mso-height-percent: 0; mso-height-relative: page; mso-position-horizontal-relative: text; mso-position-horizontal: absolute; mso-position-vertical-relative: text; mso-position-vertical: absolute; mso-width-percent: 0; mso-width-percent: 0; mso-width-relative: page; mso-wrap-distance-bottom: 0; mso-wrap-distance-left: 9pt; mso-wrap-distance-right: 9pt; mso-wrap-distance-top: 0; mso-wrap-style: square; position: absolute; visibility: visible; width: 284.4pt; z-index: -251640320;" type="#_x0000_t75">
<v:imagedata o:title="New York Law Journal" src="file:///C:/Users/joel/AppData/Local/Temp/msohtmlclip1/01/clip_image004.png"><span style="font-family: "arial" , "helvetica" , sans-serif;">
<w:wrap type="tight">
</w:wrap></span></v:imagedata></v:shape><span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="mso-fareast-font-family: Calibri; mso-no-proof: yes;">I
am pleased <span style="mso-spacerun: yes;"> </span>to announce that commencing
with the <span style="color: red;">January 2, 2020</span> issue of the New York
Law Journal I will resume writing my<span style="mso-spacerun: yes;"> </span>"<span style="color: red;">Law and the Family</span>" column, which I wrote for the
Law Journal for many years. The column will be a regular feature in the the Law
Journal, appearing every other month. </span></b><span style="color: red; mso-fareast-font-family: Calibri; mso-no-proof: yes;"><o:p></o:p></span></span></div>
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<b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Position
Wanted <o:p></o:p></span></span></u></b></div>
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<b style="mso-bidi-font-weight: normal;"><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">We are looking to establish an
“of counsel” relationship with a Manhattan law firm. <o:p></o:p></span></span></b></div>
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<b><u><span style="color: red;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Recent Legislation <o:p></o:p></span></span></u></b></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-fareast-font-family: "Times New Roman";"><span style="mso-tab-count: 1;"> </span></span><b><span style="color: red; font-size: 11.0pt;">Laws of 2019, Ch 623, enacted December 12, 2019
amended the Family Court Act § 657(c) to include non-parents with lawful orders
of custody as persons who may make medical decisions for minors in their care</span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">.<o:p></o:p></span></b></span></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="color: black; font-size: 11.0pt;">Laws of 2019, Ch 623, amended the Family Court Act §
657(c) to add persons possessing a lawful order of custody as persons who have
the right and responsibility</span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">, alongside the current provision of
those possessing a lawful order of guardianship, to make medical decisions and
necessary consents regarding the child in their care. It also amended Public
Health Law Section 2504(4) to include non-parents with lawful orders of custody
along with parents and guardians as persons whose consent is not needed for the
provision of medical, dental, health and hospital services when in the<o:p></o:p></span></b></span></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>Family Court Act § 657 (c) provides:<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>(c) Notwithstanding any other provision of
law to the contrary,<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>persons possessing a lawful order of
guardianship <u><span style="color: green;">or custody</span></u> of a child<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>shall have the right and responsibility to
make decisions, including<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>issuing any necessary consents, regarding
the child's protection, educa-<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>tion, care and control, health and medical
needs, and the physical<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>custody of the person of the child.
Provided, however, that nothing in<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>this subdivision shall be construed to limit
the ability of a child to<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>consent to his or her own medical care as
may be otherwise provided by<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>law.<o:p></o:p></span></span></b></div>
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<br /></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="font-size: 11pt;"><span style="mso-spacerun: yes;"> </span></span></b><b><span style="color: red; font-size: 11.0pt;">Laws of 2019, Ch
62, enacted December 12, 2019 and effective immediately amended CPLR 3215 (b)
to outline the procedure for an inquest on a default judgment.<o:p></o:p></span></b></span></div>
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<br /></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="color: blue; font-size: 11.0pt;"><span style="mso-tab-count: 1;"> </span></span></b><b><span style="color: black; font-size: 11.0pt;">A defendant who defaults in appearing concedes only
liability. Therefore, the defaulting defendant may still contest damages at an
inquest. <span style="mso-tab-count: 1;"> </span>In Rokina Opt. Co. v Camera
King, , 63 N.Y.2d 728, 730 supra, the Court of Appeals held that "judgment
against a defaulting party may be entered only upon application to the court
along with notice to the defaulting party and 'a full opportunity to
cross-examine witnesses, give testimony and offer proof in mitigation of
damages'." <o:p></o:p></span></b></span></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="color: black; font-size: 11.0pt;"><span style="mso-tab-count: 1;"> </span>As
amended, </span></b><b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";">CPLR 3215 (b)<span style="color: blue;"> provides</span><span style="color: black; mso-themecolor: text1;"> that a party entitled to judgment may
be permitted to submit, in addition to the proof required by </span>CPLR 3215 <span style="color: black; mso-themecolor: text1;">(f), properly executed affidavits or
affirmations as proof of damages. However, if the defaulting party gives
reasonable notice that it will appear<span style="mso-spacerun: yes;">
</span>at<span style="mso-spacerun: yes;"> </span>the<span style="mso-spacerun: yes;"> </span>inquest, the party seeking damages may submit
any<span style="mso-spacerun: yes;"> </span>proof required by </span>CPLR 3215 <span style="color: black; mso-themecolor: text1;">(f), by oral testimony of the
witnesses in open court or, after<span style="mso-spacerun: yes;">
</span>giving<span style="mso-spacerun: yes;"> </span>reasonable<span style="mso-spacerun: yes;"> </span>notice<span style="mso-spacerun: yes;">
</span>that<span style="mso-spacerun: yes;"> </span>it<span style="mso-spacerun: yes;"> </span>will<span style="mso-spacerun: yes;">
</span>do<span style="mso-spacerun: yes;"> </span>so, by written sworn
statements of the witnesses. If the party seeking judgment gives such notice
and submits proof by written sworn statements, he or she must make all of those
witnesses available for cross-examination.<span style="mso-spacerun: yes;">
</span></span><span style="color: blue;"><o:p></o:p></span></span></b></span></div>
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<br /></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>CRPL 3215(b) was amended to read as
follows:<o:p></o:p></span></span></b></div>
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<br /></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>(b)<span style="mso-spacerun: yes;">
</span>Procedure before court.<span style="mso-spacerun: yes;"> </span>The
court, with or without a jury, may<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>make an assessment or take an account or
proof, or may direct a refer-<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>ence.<span style="mso-spacerun: yes;">
</span><u><span style="color: green;">The party entitled to judgment may be
permitted to submit, in</span></u><o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><u><span style="color: green;">addition to the
proof required by subdivision (f) of this section, prop-</span></u><o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><u><span style="color: green;">erly executed
affidavits or affirmations as proof of damages, provided</span></u><o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><u><span style="color: green;">that if the
defaulting party gives reasonable notice that it will appear</span></u><o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><u><span style="color: green;">at the inquest,
the party seeking damages may submit any such proof by</span></u><o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><u><span style="color: green;">oral testimony
of the witnesses in open court or, after giving reason-</span></u><o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><u><span style="color: green;">able notice
that it will do so, by written sworn statements of the</span></u><o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><u><span style="color: green;">witnesses, but
shall make all such witnesses available for cross-exami-</span></u><o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><u><span style="color: green;">nation.</span></u><span style="mso-spacerun: yes;"> </span>When a reference is directed, the court may
direct that the<o:p></o:p></span></span></b></div>
<div class="MsoNormal" style="tab-stops: 0in .5in 45.8pt 1.0in 91.6pt 1.5in 137.4pt 2.0in 2.5in 183.2pt 3.0in 229.0pt 3.5in 274.8pt 4.0in 320.6pt 4.5in 5.0in 366.4pt 5.5in 412.2pt 6.0in 458.0pt 503.8pt 549.6pt 595.4pt 641.2pt 687.0pt 732.8pt;">
<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>report be returned to it for further action
or, except where otherwise<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>prescribed by law, that judgment be entered
by the clerk in accordance<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>with the report without any further
application. Except in a matrimonial<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>action, no finding of fact in writing shall
be necessary to the entry of<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>a judgment on default. The judgment shall
not exceed in amount or differ<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>in type from that demanded in the complaint
or stated in the notice<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt; mso-fareast-font-family: "Times New Roman";"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span>served pursuant to subdivision (b) of rule
305 <u><span style="color: green;">of this chapter</span></u>.<o:p></o:p></span></span></b></div>
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<span style="font-size: 10pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><span style="color: blue; mso-bidi-font-weight: bold;"><o:p></o:p></span></span></span></div>
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<b><u><span lang="EN-CA" style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, Second Department<o:p></o:p></span></span></u></b></div>
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<b><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Motion to modify
parties’ apportionment of responsibility for AFC’s fees should not have been
decided without evidentiary hearing<o:p></o:p></span></span></b></div>
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<!--[if supportFields]><span lang=EN-CA style='mso-ansi-language:
EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span><![endif]--><span style="font-family: "arial" , "helvetica" , sans-serif;"><span lang="EN-CA"> </span><b><span style="font-size: 11.0pt;"><span style="mso-tab-count: 1;"> </span>In Lee v Rogers, 2019 WL 6334018 (2d Dept.,2019) after the
Court of Appeals reversed the Appellate Divisions order, rejecting the adequate
relevant information standard, and determined that an evidentiary hearing was
required (see S.L. v. J.R., 27 N.Y.3d 558, 36 N.Y.S.3d 411, 56 N.E.3d 193) the
AFC moved, in effect, for an award of attorney’s fees. The plaintiff opposed
the motion and moved to modify the parties’ apportionment of responsibility for
the fees for the AFC. Supreme Court denied the plaintiff’s motion for
modification, and directed an evidentiary hearing on the reasonableness of the
AFC’s fees. Following the hearing, the court found that the fees were
reasonable, and entered an order awarding the AFC compensation of $34,624.65,
payable in equal shares by the parties.<o:p></o:p></span></b></span></div>
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<b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that contrary to the
plaintiff’s contention, the difference in opinion between it (see Matter of
Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360) and the Appellate
Division, Third Judicial Department (see Redder v. Redder, 17 A.D.3d 10, 792
N.Y.S.2d 201), as to whether attorneys for children may be compensated directly
by the children’s parents, rather than by the State, did not give rise to a
constitutional claim under the equal protection clauses of the state and
federal constitutions. <o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>The Appellate Division held that<span style="mso-spacerun: yes;"> </span>contrary to the plaintiff’s contention, it
was appropriate for the AFC to make reasonable use of associates and support
staff to conduct legal research and other work, under the AFC’s direct
supervision, in connection with the appeal of the prior custody determination
before the Court and the Court of Appeals (see 22 NYCRR 36.4[c][5] ). It agreed
with the Supreme Court’s hearing determination finding that the fees requested
by the AFC were reasonable.<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>It held that plaintiff’s motion to modify the parties’
apportionment of responsibility for the AFC’s fees should not have been decided
without an evidentiary hearing. Because the affidavits submitted by the parties
provided sharply conflicting reports on the parties’ finances (see Anjam v.
Anjam, 191 A.D.2d 531, 532, 594 N.Y.S.2d 822) and there was “no evidence in the
record that the financial circumstances of the parties [had] ever been
considered, an evidentiary hearing should have been conducted before the motion
was decided. <o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>It remitted the matter to the Supreme Court for an
evidentiary hearing on the parties’ respective finances, and a new
determination thereafter of the plaintiff’s motion.<o:p></o:p></span></span></b></div>
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<b><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Not error for
the Support Magistrate to impute to father the income of the father’s current
spouse<o:p></o:p></span></span></b></div>
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<!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>In
Matter of Fanelli v Orticelli, 2019 WL 6519694 (2d Dept.,2019) the Appellate
Division observed, that a support magistrate may impute income to a party based
on resources available to the party, including “money, goods, or services
provided by relatives and friends” (Family Ct. Act § 413[1][b][5][iv][D]). In
affirming an order which increased the fathers child support obligation it held
that it was not error for the Support Magistrate to impute to the father the
income of the father’s current spouse in the support calculation (see Matter of
Ladd v. Suffolk County Dept. of Social Servs., 199 A.D.2d 393, 394, 605
N.Y.S.2d 318; see also LiGreci v. LiGreci, 87 A.D.3d 722, 726, 929 N.Y.S.2d
253; Matter of Collins v. Collins, 241 A.D.2d 725, 727, 659 N.Y.S.2d 955).<o:p></o:p></span></span></b></div>
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<b><u><span style="background: white; color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, Third Department<o:p></o:p></span></span></u></b></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span lang="EN-CA" style="color: red; font-size: 11.0pt;">Custody order reversed</span></b><b><span style="color: red; font-size: 11.0pt;"> despite Family Court’s order being
supported by the current record, </span></b><b><span lang="EN-CA" style="color: red; font-size: 11.0pt;">where </span></b><b><span style="color: red; font-size: 11.0pt;">the lack of an AFC prejudiced the child’s
interests</span></b><b><span lang="EN-CA" style="color: red; font-size: 11.0pt;"><o:p></o:p></span></b></span></div>
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<!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>In
Matter of Marina C, v Dario D., --- N.Y.S.3d ----, 2019 WL 6331446, 2019 N.Y.
Slip Op. 53953 (3d Dept.,2019) despite Family Court’s order being supported by
the current record, the Appellate Division reversed and remitted for further
proceedings conducted with the involvement of an AFC. The Court pointed out
that it had<span style="mso-spacerun: yes;"> </span>previously noted that the
“appointment of an [AFC] in a contested custody matter remains the strongly
preferred practice,” while acknowledging that “such appointment is
discretionary, not mandatory” (Matter of Keen v. Stephens, 114 A.D.3d 1029,
1031, 981 N.Y.S.2d 174 [2014]. It has also “emphasized] the contributions
competent [AFCs] routinely make in contested matters; they not only protect the
interests of the children they represent; they can be valuable resources to the
trial court”. While advocating for the child, an AFC may provide a different
perspective than the parents’ attorneys, including through the presentation of
evidence on the child’s behalf, and may “recommend alternatives for the court’s
consideration.” Even absent a request, a court may appoint an AFC on its own
motion (see Family Ct Act § 249[a]). It noted that Family Court had appointed
an AFC for this child in connection with a previous proceeding that resulted in
a stipulated order made less than two months before the commencement of this
modification proceeding yet Family Court inexplicably did not appoint the same
or another AFC to protect the child’s interests. The Court found that <a href="https://www.blogger.com/null" name="_Hlk27488728">the lack of an AFC prejudiced the child’s interests</a>.
For example, the mother called the child’s therapist as a witness and no
objection was raised when the therapist testified regarding information that
the child had disclosed in therapy. Had an AFC been appointed, that attorney
presumably would have sought to protect the private and confidential nature of
the child’s discussions in therapy, rather than let the parents use the child’s
statements and therapist as weapons to support their own goals. The father also
testified regarding statements made by the child; an AFC could have objected to
those hearsay comments. Further, an AFC could have called additional witnesses,
asked questions of the witnesses called by the parties or presented other
evidence to elicit information that would support the child’s position. It held
that under the circumstances Family Court improvidently exercised its
discretion by failing to appoint an AFC, and such failure prejudiced the child.
It remitted for a new fact-finding hearing on the mother’s modification
petition, with the appointment and participation of an AFC.<o:p></o:p></span></span></b></div>
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<b><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Modified
stay-away order of protection pursuant to Family Ct Act § 1061 must reflect a
resolution consistent with best interests of the child and must be supported by
a sound and substantial basis in the record.<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of Andreija N, --- N.Y.S.3d ----, 2019 WL 6331396, 2019 N.Y. Slip Op. 53957
(3d Dept.,2019) petitioner, inter alia, commenced an abuse proceeding alleging
that respondent sexually abused the child. On July 20, 2018, Family Court)
issued a temporary stay-away order of protection against respondent prohibiting
any contact with the child (see Family Ct Act § 1029). This order of protection
was extended several times. In August 2018, the mother filed a petition seeking
sole legal and physical custody of the child. Thereafter, by consent of the
parties, a forensic psychologist was ordered to conduct a forensic interview of
the child in November 2018, and her report was submitted to the court. The
psychologist then completed a second report in May 2019. In both reports, the
psychologist concluded that there was no credible evidence that the father
sexually abused the child and recommended implementing the custody order. On
the first day of a combined fact-finding hearing on both petitions, both of the
psychologist’s reports were received into evidence on consent. Without any
testimony being taken, respondent, joined by the attorney for the child, then
moved to vacate the stay-away order of protection. Both petitioner and the
mother objected, and, after taking a brief recess, Family Court issued a ruling
from the bench vacating the stay-away order of protection, without explanation.
The court then issued a new temporary order of protection in May 2019 allowing
respondent to exercise unsupervised visitation pursuant to a parenting schedule
comparable to the custody order. The Appellate Division held that Family Court
abused its discretion by modifying the stay-away order of protection pursuant
to Family Ct Act § 1061. The modified order must reflect a resolution consistent
with the best interests of the child after consideration of all relevant facts
and circumstances and must be supported by a sound and substantial basis in the
record” (Matter of Yosepha K. [Chana D.], 165 A.D.3d 932, 933, 85 N.Y.S.3d 583
[2018] Although Family Court failed to articulate its reasoning for vacating
the stay-away order of protection, there were<span style="mso-spacerun: yes;">
</span>several factors that led it<span style="mso-spacerun: yes;"> </span>to
conclude that the court did not have good cause to do so. The decision to
vacate the stay-away order of protection was made on the first day of trial
and, the record should have been further developed before a determination was
made as to whether it was in the child’s best interests to allow respondent
unsupervised, overnight parenting time. This was particularly so given
respondent’s ongoing, threatening behavior towards the mother and others via
text message and on social media. In a footnote the Court pointed out that
during the course of this dispute, respondent threatened multiple judges,
posted on social media prior to an appearance that he was “getting ready to
f*** up some justice and go to jail tomorrow,” posted a photo of himself
pointing a rifle equipped with a scope – in violation of the terms of the
stay-away order of protection – and posted, the night before the child’s
interview with the psychologist, “I know where and when so I’m packed up and
ready to take back what’s mine tomorrow. Thoughts and prayers.” Then, on the
day of the interview, respondent posted that he was “waiting at [the
psychologist’s location]. Started at 11:00 got about 45 minutes to an hour
until the sh** hits the fan. You all deserve what you get.”<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>In her reports, the psychologist confirmed that she
reviewed a series of emails and text messages between the parents and certain Facebook
postings of respondent. The psychologist noted that the mother perceived
respondent “as dangerous and threatening,” but did not produce any documentary
proof of violence. The psychologist characterized respondent’s “behavior and
statements [as] unconventional” and noted that “he has never been violent or
caused harm to [the child] or [the mother].” The Courts concern with these
observations was that domestic violence is not limited to physical violence. In
its view, respondent’s behavior and threats were alarming and demonstrated a
concerted effort to control and coerce the mother and others who were
associated with this custody case. As such, it believed that respondent’s
unabashed behavior evinced the hallmarks of domestic violence and should not have
been diminished as simply “unconventional” (see e.g. www.opdv.gov/domestic-violence/what-is-domestic-violence.html;
www.opdv.gov.publications/stalking-info guide). Given the need to further
develop this record, it concluded that Family Court’s determination was
premature and that good cause had not been shown to vacate the stay-away order
of protection.<o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>In a footnote the Appellate Division stated that it
recognized that the record on appeal included petitioner’s order to show cause
submission to it seeking a stay pending appeal, which included respondent’s
text messages and Facebook postings. Respondent maintained that these documents
were not presented to Family Court and should not be considered as outside the
proper record on appeal (see CPLR 5526). The record was unclear as to whether
these submissions were before Family Court. The Court pointed out that the
general rule is that the Court may not consider matters outside the record,
i.e., materials not presented to the trial court (see Crawford v. Merrill
Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298, 361 N.Y.S.2d 140, 319
N.E.2d 408 [1974]). Respondent, however, acknowledged in his brief that “all
the submissions ... were reviewed and considered by [the psychologist].”
Correspondingly, the psychologist included a list of documents considered,
including text messages and Facebook posts, and comments on certain of these
items. Given this context, and the paramount issue of the child’s best
interests, it held that it would consider this submission (see Crawford v.
Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d at 298–299, 361 N.Y.S.2d
140, 319 N.E.2d 408; Callahan v. Cortland Mem. Hosp., 127 A.D.2d 921, 922, 512
N.Y.S.2d 281 [1987]). <o:p></o:p></span></span></b></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="color: red; font-size: 11.0pt;">In dismissing
Adult Adoption Petition, Family Court points out apparent inadequacy of the
official forms promulgated for adult adoptions</span></b><b><span lang="EN-CA" style="font-size: 11.0pt; mso-ansi-language: EN-CA;"><o:p></o:p></span></b></span></div>
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<!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">In Matter of the Adoption of Jalyssa L.-J., 2019 WL
6711559 (Family Ct., 2019) <o:p></o:p></span></span></b></div>
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<b><span style="font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">a proceeding for the
adoption of an adult child by her aunt, the prospective adoptive parent
submitted a “Petition for Adult Adoption” (Adoption Form 29a) and a “Consent to
Adult Adoption by Adoptee” (Adoption Form 29b). The only other papers submitted
in support of the adoption were<span style="mso-spacerun: yes;">
</span>purported copies of the birth certificates for both the proposed
adoptive parent and the adult adoptive child and a proposed Report of Adoption
(Form DOH-1928) promulgated by the Department of Health to notify it of a
completed adoption for the purpose of making a new birth certificate. See
Public Health Law § 4138. Family Court dismissed the petition for failure to
seek and obtain pre-certification as a qualified adoptive parent in accordance
with Domestic Relations Law § 115-d, see DRL § 115(1)(b), and for failure to
make any showing that the proposed adoption would be in the best interests of
the child. Id. § 116(2). In dismissing the petition, the Court pointed out the
apparent inadequacy of the official forms promulgated for adult adoptions. See
Family Ct. Act § 214; Uniform Rules for the Fam Ct (22 NYCRR) § 205.7(a). It
explained that while adult adoptions may be dealt with more liberally than
child adoptions, they are subject to the same statutory law as other adoptions.
Matter of Mazzeo, 95 AD2d 91, 92 (3d Dept 1983). The Court of Appeals has
observed, “an adult adoption must still be in the best interests of the
adoptive child and the familial, social, religious, emotional and financial
circumstances of the adoptive parents which may be relevant must still be
investigated. The Court explained that the only simplified statutory procedure
for adult adoptions is the elimination of the requirement for the consent of
the adoptive child’s legal parents and custodians. Matter of Anonymous, 106
Misc 2d 792, 797 (Fam Ct, Kings County 1981); see DRL § 111(4).<span style="mso-spacerun: yes;"> </span>However, the adult adoption petition form
does more than simply remove the references to parental consent that are found
in the standard form petition. The form also removes references to (1) the
religious faith and income of the adoptive parent(s); (2) the religious faith
of the adoptive child; (3) the heritage, religious faith, education and general
physical appearance of the birth parents; (4) the adoptive child’s medical history;
(5) the child protective history of the adoptive child and the adoptive
parent(s); and (6) the criminal history of the adoptive child and the adoptive
parent(s). All of this information is required either directly or indirectly by
statute and is necessary to determine the best interests of the adult adoptive
child. See DRL § 115, 115-d; 116; see also DRL § 112(3); 115(11).<o:p></o:p></span></span></b></div>
<br />Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-8247070557475874892019-12-02T10:52:00.000-05:002019-12-02T10:52:02.041-05:00Recent Decisions and Legislation December 1, 2019<div>
<span style="font-family: Arial, Helvetica, sans-serif;"><b>December 1, 2019</b></span></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">New Website for Lawyers</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net) deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Recent Legislation</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended Family Court Act § 412(2)(d), Domestic Relations Law § 236[B](5-a) (b)(5) and Domestic Relations Law § 236[B](6)(b)(4) </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended the Family Court Act and the Domestic Relations Law to change the biennial date of adjustment of the "income cap" under the maintenance guidelines law to coincide with the biennial adjustment date of the "income cap" under the Child Support Standards Act. Family Court Act § 412(2)(d), Domestic Relations Law § 236B(5-a)(b)(5) and § 236B(6)(b)(4) were amended to fix the date of the biennial adjustment of the temporary, post-divorce and spousal maintenance "income caps" at March 1" rather than January 31', as currently provided. By making the date March 1st rather than January 31st, the adjustment of the maintenance income cap would coincide with the date of adjustment of the child support combined parental income cap, as well as the date of adjustment of the federal poverty income level and self-support reserve.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The maintenance guidelines law which was enacted in 2015 provided that the maintenance income cap would be set initially at $175,000 and would increase pursuant to an adjustment formula keyed to increases in the CPI on January 31, 2016 and every two years thereafter. January 31' was the date set for adjustment of the temporary maintenance income cap under the temporary maintenance law, enacted in 2010, in effect prior to enactment of the maintenance guidelines law. It also was the date that the child support combined income cap pursuant to the Child Support Standards Act would have been adjusted. </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>However, effective January 31, 2016, the date of adjustment of the Child Support Combined Income Cap was changed to March 1" rather than January 31' to conform with the date of adjustment of the self-support reserve pursuant</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">to Social Services Law § 111-I (2)(b). </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The adjustment date of the maintenance income cap was changed so that </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">the adjustments in the maintenance and child support income caps all occur at the same time. </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Family Court Act § 412(2)(d) was amended to read as follows: </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>(d) "income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 1, effective November 20, 2019)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Domestic Relations Law § 236[B](5-a) (b)(5) was amended to read as follows:</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>(5) "Income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 2, effective November 20, 2019)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> Domestic Relations Law § 236[B](6)(b)(4) was amended to read as follows:</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> (4) "Income cap" shall mean up to and including one hundred eighty-four thousand dollars of the payor's annual income; provided, however, beginning March first, two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 3, effective November 20, 2019)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Laws of 2019, Ch 434 enacted October 29, 2019, amended Family Court Act § </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">1028-a (i), effective October 29, 2019.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> <span style="white-space: pre;"> </span>Family Court Act § 1028-a(a)(i) defines who may apply to become a foster parent under the circumstances described in that section. Applicants had been limited to relatives who were related within the third degree of consanguinity to either parent. This class of applicants excluded non-blood relatives, such as step-grandparents and "fictive" kin, who are included in the class of kinship foster parents who may exit foster care and become kinship guardianship with subsidies pursuant to social services law section 458-a thru 458-f. Family Court Act § 1028-a was amended to include to include, as eligible to apply to become foster parents, all persons who are related to children as described in social services law §458-a (3) (a), (b), or (c) who meet Family Court Act § 1028-a requirements.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Family Court Act § 1028-a provides:</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">§ 1028-a. Application of a relative to become a foster parent</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> (a) Upon the application of a relative to become a foster parent of a child in foster care, the court shall, subject to the provisions of this subdivision, hold a hearing to determine whether the child should be placed with a relative in foster care. Such hearing shall only be held if:</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">(i) the person is related to the child as described under paragraph (a), (b), or (c) of subdivision three of section four hundred fifty-eight-a of the social services law;</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">(ii) the child has been temporarily removed under this part, or placed pursuant to section one thousand fifty-five of this article, and placed in non-relative foster care;</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">(iii) the relative indicates a willingness to become the foster parent for such child and has not refused previously to be considered as a foster parent or custodian of the child, provided, however, that an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal;</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">(iv) the local social services district has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the office of children and family services; and</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">(v) the application is brought within six months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than twelve months from the date that the child was removed.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">(b) The court shall give due consideration to such application and shall make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">(c) After such hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, pursuant to regulations of the office of children and family services, to commence an investigation of the home of the relative within twenty-four hours and thereafter expedite approval or certification of such relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of such relative as a foster parent.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">(Added L.2005, c. 671, § 3, eff. March 15, 2006. Amended L.2006, c. 12, § 2, eff. March 15, 2006; L.2019, c. 434, § 1, eff. Oct. 29, 2019.)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Laws of 2019, Ch 491, effective January 15, 2020, amended Domestic Relations Law §112 and Public Health Law </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The public health law was amended by adding a new section, § 4138-e. According to the Assembly Memorandum in support of the legislation the amendment is intended to restore adult adoptees' right to access information that non-adopted persons, including those who "age-out" of foster care, have a legal right to obtain. In New York, an adopted person cannot access his or her original birth certificate unless the adopted person goes through a judicial proceeding and, even then, the outcome does not guarantee that access will be granted. This amendment will allow adult adoptees, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person (living) or lawful representatives of such deceased adopted person's direct line descendants, to obtain a certified copy of the adopted person's original long form birth certificate. Adoptees will continue, under existing law, to be able to secure "non-identifying" information which may include, but not be limited to, their religious and ethnic heritage and medical history information that may be necessary for preventive health care and the treatment of illnesses linked to family history and genetics. To whatever extent "non-identifying" information may be unavailable, the restoration of the civil right to one's own original birth certificate will restore equal opportunity for seeking</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">such information.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>Public Health Law § 4138-e provides that an adopted person eighteen years of age, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person, or lawful representatives of such deceased adopted person's direct line descendants can obtain a certified copy of the adopted person's original long form birth certificate, from the commissioner or a local registrar, in the same manner as such certificates are available to persons born in the state of New York who were not adopted. It also requires the commissioner to provide the adopted person or other authorized person with the background information about the adopted child and the adopted child's birth parents sent to the commissioner pursuant to subdivision 1 of § 114 of the domestic relations law.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>In addition, in the event that the commissioner does not have the</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">original birth certificate of an adopted person, it requires courts and other agencies that have records containing the information that would have appeared on the adopted person's original long form birth certificate to provide such information, including all identifying information about the adopted person's birth parents, to the adult</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">adopted person or other authorized person upon a simple written request therefor that includes proof of identity. (Section 1)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Public Health Law § 4138, subd 4 was amended to authorize the commissioner to make microfilm or other suitable copies of an original certificate of birth in accordance with section 4138-e and to authorize the commissioner to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 2)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Public health law § 4138 subd. 5 was amended to state that a certified copy of the original long form certificate of birth of such a person shall be issued to an adult adopted person in accordance with § 4138-e of the public health law. (Section 3)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Public Health Law § 4138 subd. 3 (a) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 4)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Public Health Law § 4138 subd. 3 (b) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 5)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Public Health Law § 4138 subd. 8 was added of the public health law to authorize adopted persons eighteen years of age or older, or the birth parent (s), to submit a change of name and/or address to be attached to the original birth certificate of the adopted person. (Section 6) </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Public Health Law § 4138-d was amended to remove the provision that allows an adoption agency to restrict access to non-identifying information that is not in the best interest of the adoptee, the biological sibling or the birth parent(s). (Section 7)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Public Health Law § 4104 was amended to include additional provisions under vital statistics that would be applicable to the city of New York. (Section 8)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Domestic Relations Law § 114, subd. 1 was amended to require that any order of adoption direct that the information to be provided to the adoptive parents about the child and the child's birth parents shall include the child's and birthparents' information at the time of surrender and, in addition, that the information provided to the</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">adoptive parents also be provided to the commissioner of health. (Section 9)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">The effective date of the amendments is January 15, 2020. (Section 10)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Appellate Division, First Department</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Appellate Division, Second Department</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Second Department affirms judgment directing father to provide exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with ‘Hasidic’ religious requirements</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>In Cohen v Cohen, 2019 WL 6139488 (2d Dept.,2019) the parties were married in 2009 and had two children, born in 2011 and 2013. During the early years of the marriage, the parties practiced Satmar Hasidic Judaism. At a certain point, the defendant (father) became non-religious, although he continued to appear religious in his dress and customs. The parties separated in December 2016. In January 2017, the plaintiff (mother) commenced the action for a divorce. Following a nonjury trial, the Supreme Court awarded the mother sole physical and legal custody of the children, with parental access to the father. The father was directed to provide the children with exclusively kosher food and to make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The court emphasized that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span> The Appellate Division affirmed the custody award. It observed that when presented as an issue, religion may be considered as one of the factors in determining the best interests of a child, although it alone may not be the determinative factor. New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The father challenged the Supreme Court’s direction that he provide the children with exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The father contended that this provision was unconstitutional and not in the children’s best interests, relying primarily on the Court’s decision in Weisberger v. Weisberger. 154 A.D.3d 41, 60 N.Y.S.3d 265. </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division distinguished Weisberger, where the Supreme Court enforced a religious upbringing clause in the parties’ separation agreement by ordering that, during any period of parental access or during any appearance at the children’s schools, the mother “must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy,” or be relegated to supervised therapeutic visitation. On appeal in Weisberger, the Second Department determined that it was “wholly inappropriate to use supervised [parental access] as a tool to compel the plaintiff to comport herself in a particular religious manner”. This Court held that the Supreme Court had run afoul of constitutional limitations by compelling the mother to herself practice a religion, rather than merely directing her to provide the children with a religious upbringing. Here, by contrast, the father was directed to make reasonable efforts to ensure the children’s compliance with their religious requirements. The Supreme Court expressly stated that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division pointed out that in the absence of a written agreement, the custodial parent may determine the religious training of the children. Since the mother was the custodial parent entitled to determine the children’s religious training, and since the children had consistently adhered to Hasidic practices throughout their lives, the Supreme Court providently exercised its discretion in directing the father to provide the children with exclusively kosher food and to make all reasonable efforts to ensure the children’s compliance with their religious requirements while they are in his physical custody. It emphasized, as did the Supreme Court, that the defendant was not required, at any time, to himself comply with any religious practices. It further emphasized that the standard was one of reasonable efforts, not perfection.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>Husband who waive interest in wife’s degree, directed to contribute to wife’s student loan debt where attainment of degree did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> <span style="white-space: pre;"> </span>In Santamaria v Santamaria, --- N.Y.S.3d ----, 2019 WL 5945643, 2019 N.Y. Slip Op. 08239 (2d Dept.,2019) the parties were married on December 3, 2000, and had two children. The plaintiff-husband commenced the action for a divorce on August 2, 2013. </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division held that Supreme Court providently exercised its discretion in awarding the plaintiff-husband a separate property credit of $332,000 related to the marital residence, and awarding the defendant a 50% share of any equity in the residence that accrued from 2002 until the date of its sale. The evidence at trial demonstrated that in 2002, the plaintiff’s mother transferred ownership of the subject property, where she resided, to the plaintiff and retained a life estate in the property. In 2010, after the death of plaintiff’s mother, the plaintiff transferred ownership of the property to himself and the defendant. At the time, the property was appraised at a value of $332,000. In 2011, after renovations were conducted, the parties and their children moved to the property, and it became the marital residence. The plaintiff’s conveyance of the home in 2010 to himself and the defendant presumptively changed the character of the home from separate property to marital property. It agreed with the court’s determination to award the plaintiff a separate property credit in the amount at which the residence was valued at the time the property was transferred to both parties. Furthermore, in light of the evidence that significant marital funds were used over the years to help preserve the plaintiff’s separate property asset, the court providently exercised its discretion in awarding the defendant 50% of any equity in the marital residence that accrued from 2002 until the date of its sale.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> <span style="white-space: pre;"> </span>The Appellate Division held that considering the relevant factors, the Supreme Court should have awarded the defendant-wife maintenance of $750 per month, commencing December 15, 2015, for a period of four years or until she remarries. Thus, it modified the judgment of divorce accordingly.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The defendant contended that the Supreme Court improvidently exercised its discretion in awarding the plaintiff child support retroactive to the date of the commencement of the action, rather than the date of the judgment of divorce. She argued that during the litigation, the parties and their children resided together in the marital residence, and the children’s needs were provided for by both parties.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Under the particular facts and circumstances of this case, the Appellate Division disagreed with the Supreme Court’s determination to award the plaintiff child support retroactive to the date of the commencement of the action. While the action was commenced on August 2, 2013, the plaintiff was not awarded residential custody of the children until the court issued an order dated November 18, 2015. The plaintiff failed to establish that he had de facto residential custody of the children at any earlier point in time. Thus, under these particular facts and circumstances, it found that the court should have awarded child support retroactive to November 18, 2015, the date of the custody order. In light of the financial circumstances of the parties, it agreed with the court’s determination directing the defendant to pay retroactive child support arrears at a rate of $150 per month, and not awarding the plaintiff statutory interest on the unpaid balance.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division agreed with the Supreme Courts direction to the plaintiff to pay $20,000 of defendant’s student loan debt. The plaintiff contended that the court should not have directed him to pay any portion of the defendant’s student loan debt, because he waived any interest in the defendant’s Bachelor’s degree, and the evidence failed to establish what portion of the loans was incurred during the marriage. It observed that a spouse is generally required to bear the obligation of repayment of the balance of a student loan taken out by that spouse during the course of the marriage where “no benefit inured to the marriage” (Heydt–Benjamin v. Heydt–Benjamin, 127 A.D.3d 814, 815, 6 N.Y.S.3d 582). Here, however, there was evidence that the defendant’s attainment of her Bachelor’s degree in business administration did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage. The testimony established that prior to obtaining her Bachelor’s degree, the defendant was only able to work in restaurants and a hotel as a waitress, earning a very limited salary. At the time of the trial, however, the defendant had been employed with Winston Staffing Services as a headhunter, earning a salary of $50,000 annually plus commissions. Although the plaintiff waived any interest in the defendant’s degree, the defendant’s enhanced earning ability did benefit the marriage, and it was not unreasonable for the Supreme Court to direct the plaintiff to pay a portion of the defendant’s student loans, which were incurred during the marriage and were owed since 2005. The evidence at trial demonstrated that the outstanding student loan balance was approximately $52,000, and that the majority of the student loans were incurred during the marriage. Thus, it agreed with the court’s determination to direct the plaintiff to pay $20,000 of the outstanding student loan debt.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Appellate Division, Fourth Department</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Family Court erred when it determined that father’s alleged violation of the child support order was willful because it did not afford the father opportunity to be heard and present witnesses</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>In Matter of Green v Lafler, --- N.Y.S.3d ----, 2019 WL 6042451, 2019 N.Y. Slip Op. 08306 (4th Dept.,2019) the Appellate Division agree with the father that the court erred when it determined that the father’s alleged violation of the child support order was willful because it did not afford the father with the opportunity to be heard and present witnesses. Although “[n]o specific form of a hearing is required, ... at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” (Thompson, 59 A.D.3d at 1105, 873 N.Y.S.2d 786. Moreover, “[i]t is well settled that neither a colloquy between a respondent and [the] [c]ourt nor between a respondent’s counsel and the court is sufficient to constitute the required hearing” (Davis, 104 A.D.3d at 1228, 960 N.Y.S.2d 806). None of the parties’ appearances on the violation petition consisted of an adducement of proof coupled with an opportunity to rebut it. At most, there was merely “a colloquy” between the father and Support Magistrate, which is insufficient to constitute the required hearing. Moreover, there was nothing in the record to establish that petitioner mother provided admissible evidence with respect to the father’s alleged willful failure to pay child support, nor was there any admissible evidence submitted by the Support Collection Unit. Also, the father was never given the opportunity to present evidence rebutting the allegations in the petition. It reversed the order and remitted the matter to Family Court for a hearing on the petition in compliance with Family Court Act § 433.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">November 16, 2019</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">New Website for Lawyers</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net) deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">New York Court Rules</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">By Joint orders, effective February 15, 2019, and June 1, 2019, the Judicial Departments of the Appellate Division amended the rule regarding the Statement of Client’s Rights and Responsibilities set forth in section 1400.2 of Part 1400 of Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York. </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">The amended Rule provides as follows: </span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Section 1400.2. Statement of client's rights and responsibilities</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">An attorney shall provide a prospective client with a statement of client's rights and responsibilities in a form prescribed by the Appellate Divisions, at the initial conference and prior to the signing of a written retainer agreement. If the attorney is not being paid a fee from the client for the work to be performed on the particular case, the attorney may delete from the statement those provisions dealing with fees. The attorney shall obtain a signed acknowledgment of receipt from the client. The statement shall contain the following:</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship, to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">If you are hiring an attorney you and your attorney are required to sign a written retainer agreement which must set forth, in plain language, the nature of the relationship and the details of the fee arrangement. Before you sign the retainer agreement, you are responsible to read it and ask the attorney any questions you have before you sign it. At your request, and before you sign the agreement, you are entitled to have your attorney clarify in writing any of its terms, or include additional provisions.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to fully understand the proposed rates and retainer fee before you sign a retainer agreement, as in any other contract. The retainer fee you pay to the attorney, as is written in the retainer agreement, may not be enough money to pay for all the time that the attorney works on your case.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You may refuse to enter into any fee arrangement that you find unsatisfactory.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">An attorney may not request a fee that is contingent on the securing of a divorce or on the amount of money or property that may be obtained.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">An attorney may not request a retainer fee that is nonrefundable. That is, should you discharge the attorney, or should the attorney withdraw from the case with Court permission, before the retainer has been used up, the attorney is entitled to be paid commensurate with the work performed on your case and any expenses. The attorney must return to you any balance of the retainer that has not been used. However, the attorney may enter into a minimum fee arrangement with you that provides for the payment of a specific amount below which the fee will not fall based upon the attorney's handling of the case to its conclusion.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to know the approximate number of attorneys and other legal staff members who will be working on your case at any given time and what you will be charged for the services of each.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to know in advance how you will be asked to pay legal fees and expenses, and how the retainer, if any, will be spent.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">The other party may be responsible to contribute to or to pay your attorney's fees, if the Court orders the other party to do so. However, if the other party fails to pay the Court ordered fee, you are still responsible for the fees owed to your attorney and experts in your case.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">At your request, and after your attorney has had a reasonable opportunity to investigate your case, you are entitled to be given an estimate of approximate future costs of your case. That estimate shall be made in good faith but may be subject to change due to facts and circumstances that develop during your case. There are no guarantees that the cost of your case will be as originally estimated.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to receive a written, itemized bill on a regular basis, at least every 60 days.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are expected to review the itemized bills sent to you by your attorney, and to raise any objections or errors in a timely manner in writing. Time spent in discussion or explanation of bills will not be charged to you.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Your attorney's written retainer agreement must specify under what circumstances he or she might seek to withdraw as your attorney for nonpayment of legal fees. If an action or proceeding is pending, the court may give your attorney a “charging lien,” which entitles your attorney to payment for services already rendered at the end of the case out of the proceeds of the final order or judgment. In some cases your attorney may exercise a “retaining lien” which, subject to Court proceedings, may allow them to keep your file as security.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are under no legal obligation to sign a confession of judgment or promissory note, or to agree to a lien or mortgage on your home to pay for legal fees. Your attorney's written retainer agreement must specify whether, and under what circumstances, such security may be requested. In no event may such security interest be obtained by your attorney without prior court approval and notice to your adversary. An attorney's security interest in the marital residence cannot be foreclosed against you.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Once your Judgment of Divorce is signed, if you are re-retaining an attorney you must sign a new retainer agreement.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, that must be specified in the retainer agreement. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">In the event of a fee dispute, you may have the right to seek arbitration pursuant to Part 137 of the Rules of the Chief Administrative Judge where the dispute involves a sum of more than $1,000.00 or less than $50,000.00 unless you agree otherwise. Your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Receipt Acknowledged:</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">___________________________________ Attorney's signature</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">___________________________________ Client's signature</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">___________________________________ Date Form 1400.2-1(2/19)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">UNIFIED COURT SYSTEM OF THE STATE OF NEW YORK</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">(To be used only when representation is without fee)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Even though you are being represented by an attorney without fee, you may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Even though you are being represented by an attorney without fee, the other party may be responsible to contribute to or to pay your attorney's or expert fees in your case, if the Court orders the other party to do so.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You may be required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party. The attorney will discuss this with you.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, you may have to make arrangements with another attorney to do so, and if the attorney charges you a fee, you must sign a retainer agreement with the other attorney. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Receipt Acknowledged:</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">___________________________________ Date Form 1400.2-2(6/19)</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Appellants argument that he “simply forgot the date,” does not constitute a reasonable excuse for vacating a default.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span> In Krystal R. V Kriston L, 2019 WL 5876030 (1st Dept.,2019) the Appellate Divison held that, in refusing to vacate Respondents default, that he failed to demonstrate a reasonable excuse for his failure to appear at the hearing on the family offense petition (see CPLR 5015[a][1]). Although respondent contended that he was evicted a month before the hearing and subsequently lost his phone, he also admitted that he “simply forgot the date,” which does not constitute a reasonable excuse (see Matter of Jenny F. v. Felix C., 121 AD3d 413 [1st Dept 2014]). He was present during the scheduling of the hearing, and it was his responsibility to verify the date with his attorney or the Family Court itself (see e.g. Matter of Yadori Marie F. [Osvaldo F.], 111 AD3d 418, 419 [1st Dept 2013]).</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Whether respondent eventually satisfied his arrears has no bearing on the court’s finding of willfulness. Support Magistrate not required to address probation as an additional enforcement remedy where raised by Support Magistrate</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>In Matter of Eve S.P., v. Steven N.S., --- N.Y.S.3d ----, 2019 WL 5876171, 2019 N.Y. Slip Op. 08130 (1st Dept.,2019) an enforcement proceeding, the Appellate Division found that by submitting evidence that respondent was delinquent in his support payments (see Family Court Act § 454[3][a]), petitioner established prima facie that respondent willfully violated his child support obligations. It held that whether respondent eventually satisfied his arrears had no bearing on the court’s finding of willfulness (see Matter of Shkaf v. Shkaf, 162 AD3d 1152, 1155 [3d Dept 2018]), particularly in light of his previous violations of his support obligations.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>The Appellate Division rejected Petitioners argument that, in addition to entering a money judgment against respondent for the arrears, the support magistrate was required to address probation as an additional enforcement remedy, and that the support magistrate’s failure to set forth the “facts and circumstances” on which the decision not to place respondent on probation was based violated FCA § 454(4). Section 454(4) provides, “The court shall not deny any request for relief pursuant to this section unless the facts and circumstances constituting the reasons for its determination are set forth in a written memorandum of decision.” The Court held that probation is a matter within the sound discretion of Family Court (Matter of Delaware County Dept. of Social Servs. v. Brooker, 272 A.D.2d 835, 836 [3d Dept 2000], citing FCA § 454[3][a]). The record showed that the possibility of placing respondent on probation was first raised by the support magistrate. Petitioner cited no authority in support of her contention that the support magistrate’s aforementioned omission amounted to a statutory violation requiring remand for further proceedings.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">“Very high burden” necessary for challenging prenuptial agreement</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span> In DiPietro v Vatsky, --- N.Y.S.3d ----, 2019 WL 5791626, 2019 N.Y. Slip Op. 07989 (1st Dept.,2019) the Appellate Division held that Defendant husband’s efforts to meet his “very high burden” for challenging the parties’ prenuptial agreement failed (Anonymous v. Anonymous, 123 A.D.3d 581, 582, 999 N.Y.S.2d 386 [1st Dept. 2014]). The parties, both educated and savvy professionals with significant assets of their own, were each represented by independent counsel, and entered into the prenuptial agreement after a period of negotiations several months before the marriage. Plaintiff’s alleged failure to disclose did not provide a ground to set aside the prenuptial agreement particularly, here, where defendant proceeded to execute the prenuptial agreement despite his claim that plaintiff refused to supply him with financial documents. It agreed with the motion court that the prenuptial agreement and its amendments were not the product of overreaching. The prenuptial agreement, which included joint waivers of maintenance, the right to equitable distribution, and the right to election, was not so “manifestly unfair” as to warrant equity’s intervention. Although the transfer of defendant’s house to plaintiff may not have been in his best financial interest, defendant’s attorney made his objection to this provision abundantly clear. Defendant proceeded to execute the prenuptial agreement over his attorney’s objection. Thus, even if, in retrospect, this specific provision was improvident or one-sided, it did not provide a ground to vitiate the prenuptial agreement.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">An award of counsel fees under Family Ct Act ' 438 should be based upon the totality of the circumstances, including the equities and circumstances of each particular case</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">In Roberts v Roberts, N.Y.S.3d , 2019 WL 5581904, 2019 N.Y. Slip Op. 07787 (2d Dept.,2019) the father filed a petition for a downward modification of his maintenance and child support obligations. Following a hearing, the court dismissed the father=s petition, granted the mother=s attorney counsel fees, and directed the entry of a money judgment in favor of the mother=s attorney and against the father in the sum of $9,221.25. The Appellate Division affirmed. It observed that a court may allow counsel fees at any stage of a proceeding under Family Court Act article 4 (see Family Ct Act ' 438). In determining an appropriate award of counsel fees, the court must consider factors such as the parties= ability to pay, the merits of the parties= positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel=s performance and the fees under the circumstances. Ultimately, the award should be based upon the totality of the circumstances, including the equities and circumstances of each particular case. Under the totality of the circumstances of this case, the mother was entitled to an award of counsel fees, and the Support Magistrate did not improvidently exercise her discretion in directing the entry of a money judgment in favor of the mother=s attorney.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Unless it can be shown that the trial court improvidently exercised that discretion, its equitable distribution determination should not be disturbed</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"> <span style="white-space: pre;"> </span>In Ambrose v Ambrose, N.Y.S.3d , 2019 WL 5582047, 2019 N.Y. Slip Op. 077577 (2d Dept.,2019) the parties were married in January 2012, and were the parents of one child, born in 2013. In October 2015, the plaintiff commenced the action for a divorce. The Appellate Division held, inter alai, that Supreme Court did not improvidently exercise its discretion in denying the defendant a distributive share of the plaintiff=s retirement assets. The trial court is vested with broad discretion in making an equitable distribution of marital property and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed. Upon consideration of the relevant statutory factors and all of the attendant circumstances, including, inter alia, the short duration of the parties= marriage, the age and health of the parties, and that the defendant was awarded full title to her nonvested retirement assets, which were also subject to equitable distribution, there was no basis upon which to disturb the court=s determination.</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Appellate Division, Fourth Department</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Written notice of counsel’s motion to withdraw is required. Purported withdrawal without proof that reasonable notice was given is ineffective</span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="white-space: pre;"> </span>In Matter of Gonzalez v Bebee, --- N.Y.S.3d ----, 2019 WL 5850893 (Mem), 2019 N.Y. Slip Op. 08027 (4th Dept.,2019) the Appellate Division reversed an order which inter alia, sentenced respondent to jail for contempt of court and an order , in effect, confirmed the determination of the Support Magistrate, upon the father’s purported default, that he willfully violated a prior child support order and directed that he be incarcerated. It held that the Support Magistrate erred in allowing the father’s attorney to withdraw as counsel and in proceeding with the hearing in the father’s absence. “An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client ... [, and a] purported withdrawal without proof that reasonable notice was given is ineffective” (Matter of Williams v. Lewis, 258 A.D.2d 974, 974, 685 N.Y.S.2d 382 [4th Dept. 1999]; see CPLR 321[b][2]; Matter of La’Derrick W., 63 A.D.3d 1538, 1539, 880 N.Y.S.2d 805 [4th Dept. 2009]). The father’s attorney did not make a written motion to withdraw. Counsel merely agreed when the Support Magistrate, after noting the father’s failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel’s decision to withdraw in accordance with CPLR 321(b)(2) rendered the Support Magistrate’s finding of default improper, and Family Court thus erred in confirming those findings. It remitted the matter to Family Court for the assignment of new counsel and a new hearing on the violation petition of petitioner mother.</span></b></div>
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Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-42396630563695646042019-11-04T12:07:00.003-05:002019-11-04T12:07:52.487-05:00Recent Decisions and Legislation November 1, 2019<br />
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<u><span lang="EN-CA" style="color: red; letter-spacing: 0pt;"><b>Appellate Division, Second Department<o:p></o:p></b></span></u></div>
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<!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-bidi-font-family:Arial;color:red;
letter-spacing:0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-bidi-font-family:Arial;color:red;
letter-spacing:0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span></b><![endif]--><b><span style="color: red; letter-spacing: 0pt;">Forensic Report property admitted in custody case pursuant to 22 NYCRR
202.16(g)</span><span style="color: windowtext; letter-spacing: 0pt;"><o:p></o:p></span></b></div>
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<span style="color: windowtext; letter-spacing: 0pt;"><b><span style="mso-tab-count: 1;"> </span>Comment: The Court of
Appeals has held that forensic reports are not admissible in custody cases
unless they are admitted pursuant to stipulation or upon consent of the
parties. Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402
(1962). However, 22 NYCRR 202.16(g)(2) provides that in the discretion of the
court, written expert reports may be used to substitute for direct testimony at
the trial. The reports must be submitted by the expert under oath, and the
expert must be present and available for cross-examination.<span style="mso-spacerun: yes;"> </span>To be admissible the forensic report can not
rely upon information other than that upon which an expert may properly base an
opinion. see Jemmott v. Lazofsky, 5 A.D.3d 558, 772 N.Y.S.2d 840; Wagman v.
Bradshaw, 292 A.D.2d 84, 86–87, 739 N.Y.S.2d 421).Matter of D'Esposito v
Kepler, 14 AD3d 509, 788 N.Y.S.2d 169 (A.D. 2 Dept.2005)<o:p></o:p></b></span></div>
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<span style="color: windowtext; letter-spacing: 0pt;"><b><span style="mso-tab-count: 1;"> </span>In
Matter of Raymond v Raymond, 174 A.D.3d 625, 107 N.Y.S.3d 433, 2019 N.Y. Slip
Op. 05546<span style="mso-spacerun: yes;"> </span>(2d Dept., 2019) the mother
filed a petition seeking sole custody of the parties’ only child, who resided
with her. The father initially was awarded parental access every weekend. He
subsequently filed a petition seeking increased parental access. Family Court
granted the mother’s petition and denied the father’s petition. The Appellate
Division agreed<span style="mso-spacerun: yes;"> </span>with the Family Court’s
determination to<span style="mso-spacerun: yes;"> </span>admit the forensic
report into evidence. The parties received access to the report well in advance
of the scheduled hearing, the forensic evaluator testified and was
cross-examined by the parties at the hearing, the parties had<span style="mso-spacerun: yes;"> </span>the opportunity to rebut the forensic
evaluator’s findings, and the conclusions in the report were based primarily on
the forensic evaluator’s firsthand interviews rather than on hearsay statements
made by nontestifying declarants.<o:p></o:p></b></span></div>
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</span><span style="color: red;">Appellate Divison holds
that test generally applied for setting combined parental income cap is whether
child is receiving enough to meet his or her actual needs and the amount
required to live an appropriate lifestyle<o:p></o:p></span></b></div>
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<b>In
Pandis v Lapas, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057564, 2019 N.Y. Slip Op. 07267(2d
Dept.,2019) the parties were married in 1992. There were<span style="mso-spacerun: yes;"> </span>two children of the marriage, S.P., born in
1999, and N.P., born in 2005. The plaintiff commenced this action for divorce
on January 9, 2012. Supreme Court awarded the defendant sole custody of the children,
and declined to direct any parental access between the plaintiff and the
children. In terms of child support, the court set the combined parental income
cap at $250,000. The court directed the plaintiff to pay child support of
$3,593.75 per month, which was 69% of the basic child support for the two
children. The court also directed the plaintiff to pay 69% of the children<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s
add‑on expenses, including private school tuition and college tuition.<span style="mso-spacerun: yes;"> </span>The Appellate Division held, among other
things, that Supreme Court did not err in setting the combined parental income
cap for child support purposes at $250,000.<span style="mso-spacerun: yes;">
</span>Where <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span>the combined parental income exceeds the [statutory
cap], the court shall determine the amount of child support for the amount of
the combined parental income in excess of such dollar amount through
consideration of the factors set forth in [Domestic Relations Law <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span>
240(1<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">B</span></span>b)(f)] and/or the child support percentage<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span>
(Domestic Relations Law <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">'</span></span> 240[1<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">B</span></span>b][c][3]. The test generally applied is whether the
child is receiving enough to meet his or her <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">></span></span>actual
needs and the amount required ... to live an appropriate lifestyle<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span> <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span><o:p></o:p></b></div>
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<b><span style="color: red;">Party must
demonstrate </span><span style="color: red; font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span><span style="color: red;">exigent or compelling circumstances</span><span style="color: red; font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span><span style="color: red;"> supporting request for an adjournment to obtain counsel at late
stage in the hearing<o:p></o:p></span></b></div>
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<b><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>In
Matter of Eckstein v Young, 2019 WL 5057835 (2d Dept., 2019) the Appellate
Division affirmed an order which granted the mother custody and permission to
relocate to Connecticut. The Appellate Division, inter alia,<span style="mso-spacerun: yes;"> </span>rejected the fathers argument that he was
denied the right to counsel. The right to be represented by counsel of one<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s
own choosing is qualified in the sense that a party may not employ such right
as a means to delay judicial proceedings. Absent exigent or compelling
circumstances, a court may, in the exercise of its discretion, deny a party<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s
request to substitute counsel made on the eve of or during trial if the party
has been accorded a reasonable opportunity to retain counsel of his [or her]
own choosing before that time. Family Court providently exercised its
discretion in denying the father<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s request for an adjournment to obtain new counsel
When the father requested this adjournment, the hearing had been ongoing for
three years; the father had finished presenting his case, including testifying
on his own behalf and calling two witnesses, and the mother had completed most
of her case, including testifying on her own behalf on six dates and calling
two witnesses. The father failed to demonstrate that there were <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span>exigent
or compelling circumstances<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span> supporting his request for an adjournment at this
late stage in the hearing, and given that the father was represented for the
first several years of the proceedings, there is no indication that he lacked <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span>a
reasonable opportunity to retain counsel<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span> before the date on which he requested the
adjournment.<o:p></o:p></b></div>
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<b><span style="color: red;">Mothers willful
interference with fathers right to parental access] so inconsistent with the
best interests of the child as to, warrant custody award to father, despite
forensic evaluator recommending custody to mother </span><o:p></o:p></b></div>
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<b>In
Matter of Nieves v Nieves, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057657, 2019 N.Y. Slip
Op. 07261 (2d Dept.,2019) Family Court, denied the mother<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s
petition for sole legal and physical custody of the parties<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>
child and granted the father<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s petition for sole legal and physical custody of the
child. The Appellate Division affirmed.<span style="mso-spacerun: yes;">
</span>In September 2016, a court‑appointed forensic evaluator prepared a
forensic evaluation, noting extensive evidence that the mother and the
stepfather had engaged in behavior intended to alienate the child from the
father. Despite this evidence, as well as other concerns regarding the mother<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s
parenting, the forensic evaluator recommended against awarding custody to the
father on the ground that it would be <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span>devastat[ing]<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span> to the child. Family Court concluded that despite the
forensic evaluator<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s recommendation, subsequent events warranted awarding
sole custody to the father on the ground, among others, that he was better able
to foster the child<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s relationship with the noncustodial parent. The
Appellate Division observed that <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">></span></span>[w]illful interference with a noncustodial parent<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s
right to [parental access] is so inconsistent with the best interests of the
child[ ] as to, per se, raise a strong probability that the offending party is
unfit to act as a custodial parent<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>. The record was replete with evidence of the efforts
of the mother and the stepfather to thwart the father<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s
parental access and alienate the child from the father. The mother and the
stepfather appeared to be <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span>punish[ing the child] for having a relationship with
[him]<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span> by, inter alia, forcing the child to take telephone
and video calls with the father outdoors, even in inclement weather, taking a
tablet that had been provided by the father to facilitate the video calls and
that the stepfather claimed was <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span>garbage,<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span> and confiscating gifts from the father. The mother
and the stepfather also repeatedly refused to cooperate with travel plans, and
the father, among other things, had to seek a writ of habeas corpus to bring
the child to the airport for a planned visit. Moreover, the mother and the
stepfather disparaged the father and his family to the child and caused the
child to worry that the mother would not permit him to continue a relationship
with the father. This conduct was so inconsistent with the child<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">=</span></span>s
best interests as to warrant awarding sole legal and physical custody to the
father, notwithstanding the fact that the mother had been the primary
custodian. Further, as the court observed, at the time the forensic evaluator
made his recommendation that a change of custody would be detrimental to the
child, the relationship between the father and the child was <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span>extremely
tenuous,<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span> whereas, due to <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span>the extended visits,<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span>
they subsequently developed a <span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">A</span></span>solid relationship.<span style="font-family: "WP TypographicSymbols";"><span style="mso-char-type: symbol; mso-symbol-font-family: "WP TypographicSymbols";">@</span></span><o:p></o:p></b></div>
<br />Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-47278910684632648872019-11-04T12:04:00.002-05:002019-11-04T12:04:28.081-05:00Recent Decisions and Legislation October 16, 2019<br />
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<b><u><span lang="EN-CA" style="color: red; font-size: 11.0pt; letter-spacing: 0pt; mso-ansi-language: EN-CA; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;">Appellate Division, Second
Department<o:p></o:p></span></span></u></b></div>
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<b><span style="color: red; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;">In 9-year, marriage 42-year-old wife, incapable of maintaining employment
because of symptoms experienced as result of multiple sclerosis, awarded
maintenance until age 67<o:p></o:p></span></span></b></div>
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<b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>In Murphy v Murphy, ---
N.Y.S.3d ----, 2019 WL 4656304, 2019 N.Y. Slip Op. 06780 (2d Dept.,2019) the parties
were married on September 18, 2004, and had no children together. Prior to the
marriage, the plaintiff was diagnosed with multiple sclerosis. On March 19,
2013, the plaintiff commenced the action for a divorce. The parties entered
into a stipulation in which they resolved, inter alia, the issue of equitable
distribution. At the time of trial, the plaintiff was 42 years old and the
defendant was 47 years old. After the trial, the court determined, inter alia,
that the plaintiff was incapable of maintaining employment because of the
symptoms she experienced as a result of multiple sclerosis, and awarded the
plaintiff maintenance of $10,760 per month commencing June 1, 2016, and
terminating the first of the month after the plaintiff turns 67 years old. The
Appellate Division affirmed. It was undisputed that the plaintiff was diagnosed
with multiple sclerosis, which is a chronic and incurable autoimmune disease,
as well as another autoimmune disorder, Hassimoto’s thyroiditis. At trial, the
plaintiff’s evidence demonstrated that she experienced numerous symptoms as a
result of multiple sclerosis and the treatment that she received for this
disease, and that these symptoms interfered with her ability to work. The fact
that the plaintiff wrote and self-published a book during the marriage, which
took her 10 years to complete and for which she earned no income, did not
warrant a different result. However, the Supreme Court should have directed
that, in the event that either party dies or the plaintiff remarries during the
period when the defendant is obligated to pay maintenance, that obligation
terminates (see Domestic Relations Law § 236[B][1][a]).<o:p></o:p></span></span></b></div>
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<b><span style="color: red; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;">Custody order reversed where attorney for the child failed to advise the
Family Court of, much less advocate for, the position of the then 10–year–old
child<o:p></o:p></span></span></b></div>
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<b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>In Matter of David v
LoPresti, --- N.Y.S.3d ----, 2019 WL 4849301, 2019 N.Y. Slip Op. 07066 (2d
Dept.,2019) the mother and the father were divorced in 2015 and had one child,
born in 2008. Pursuant to a stipulation the parties agreed to joint legal
custody of the child with the mother having primary physical custody. In 2018,
the mother moved to modify the stipulation so as to allow her to temporarily
relocate with the child from Queens, New York, to New Orleans, Louisiana, for a
period of two years, while she completed a fellowship program at Tulane
University School of Medicine. Since the mother’s fellowship commenced prior to
the hearing on the petition, she was constrained to move to Louisiana without
the child, and the child stayed with the father in New York. Following the
hearing, the Family Court, in effect, denied the mother’s petition and awarded
physical custody of the child to the father and parental access to the mother.
The Appellate Division reversed and remitted for a new hearing. It found that
the record was insufficient to allow it to make a fully informed determination
as to whether relocation was in the child’s best interests. Throughout the
course of the proceedings on the petition, the attorney for the child failed to
advise the Family Court of, much less advocate for, the position of the then
10–year–old child. The Rules of the Chief Judge (22 NYCRR 7.2[d]) require that,
except in certain proceedings not relevant here, the attorney for the child
“zealously advocate the child’s position. The Family [Court] Act identifies, as
one of the primary obligations of the attorney for the child, helping the child
articulate his or her position to the court” (Matter of Mark T. v. Joyanna U.,
64 A.D.3d 1092, 1093, 882 N.Y.S.2d 773; see Family Ct Act § 241). Moreover,
despite the fact that it was not made aware of the child’s position through the
attorney for the child, the court did not meet in camera with the child to aid
it in determining her best interests. Under the circumstances of this case, including
that the mother was the child’s primary caregiver since birth and that the
relocation was temporary, the denial of the petition absent any indication of
the child’s preferences was not supported by a sound and substantial basis in
the record, and the record was insufficient to enable the Court to make its own
determination of the petition. Additionally, the mother was improperly
prevented by the Court Attorney Referee from presenting evidence on her
petition relevant to, inter alia, the mother’s reasons for seeking the move and
the impact the move would have on the child economically and educationally.<o:p></o:p></span></span></b></div>
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<b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>The Appellate Division
also found that the mother’s petition was for permission to relocate
temporarily, and the father withdrew his cross petition for physical custody.
Thus, there was no request pending before the court for a permanent change of
custody, nor was there a showing that such a permanent change of custody would
be in the child’s best interests.<o:p></o:p></span></span></b></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><b><span style="color: red; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;">Appellate Divison rejects mother’s argument that the Family Court should
not have limited her ability to cancel a scheduled visit to instances of
“substantial medical reason involving the child.”</span></b><b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><o:p></o:p></span></b></span></div>
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<b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>In Matter of Liriano v
Hotaki, --- N.Y.S.3d ----, 2019 WL 4849282, 2019 N.Y. Slip Op. 07071<span style="mso-spacerun: yes;"> </span>(2d Dept.,2019) the Family Court denied in
part the mothers petition to modify the custody order so as to require that the
father’s parental access with the child be supervised and by conditioning the
father’s right to parental access on his participation in therapy. The court
also directed that the mother was “not to cancel the visit except for
substantial medical reason involving the child.” The Appellate Division
affirmed. It, among other things, rejected the mother’s argument that the
Family Court should not have limited her ability to cancel a scheduled visit to
instances of “substantial medical reason involving the child.” The Appellate
Division observed that this is a fairly standard limitation (see Parenting
Plan, ¶ 2.12, available at
www.nycourts.gov/forms/matrimonial/ParentingPlanForm.pdf [last accessed
September 12, 2019]). It held that<span style="mso-spacerun: yes;"> </span>the
court’s determination that it was in the child’s best interests to limit the
mother’s ability to cancel scheduled visits to instances of “substantial
medical reason involving the child” was supported by a sound and substantial
basis in the record (cf. Matter of Michael R. v. Aliesha H., 155 A.D.3d 1042,
1044, 66 N.Y.S.3d 39).<o:p></o:p></span></span></b></div>
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<b><span style="color: red; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;">Appellate Divison holds it is an improvident exercise of discretion to
direct that school, religious, or extracurricular activities of the children
are always to take precedence over father’s parental access<o:p></o:p></span></span></b></div>
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<b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>In Matter of Cuccia-Terranova
v. Terranova, 174 A.D.3d 528, 107 N.Y.S.3d 28, 2019 N.Y. Slip Op. 05401 (2d
Dept., 2019) the Appellate Division held that under the circumstances of this
case, it was an improvident exercise of discretion to direct that the school,
religious, or extracurricular activities of the children are always to take
precedence over the father’s parental access, particularly since the mother
was<span style="mso-spacerun: yes;"> </span>permitted to unilaterally determine
the children’s non-school activities without prior consultation with the
father, and she had asserted that the children were so busy that establishing a
fixed schedule would be difficult. In this context, the provision giving
primacy to other activities could result in an undue curtailment of the
father’s parental access. Similarly, it was an improvident exercise of
discretion to preclude make-up parental access in the event that the father, or
the children, were unable to participate in scheduled parental access for good
cause.</span><o:p></o:p></span></b></div>
<br />Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-63871947135656844572019-10-08T09:31:00.004-04:002019-10-08T09:31:38.772-04:00Recent Decisions and Legislation October 1, 2019 <br />
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<b><u><span style="background: white; color: red; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;">Recent Legislation<o:p></o:p></span></span></u></b></div>
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<b><span style="color: red; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman";"><span style="font-family: Arial, Helvetica, sans-serif;">Laws of 2019, Ch 335,
enacted and effective October 3, 2019 amended<i> Family</i> Court Act §§828 and 842, Family
Court Act § 412(10), Domestic Relations Law § 236 [B][5-a] [b][5] and Domestic
Relations Law § 236[B](6][b][4]<i><o:p></o:p></i></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>Family
Court Act §§828 and 842<span style="mso-spacerun: yes;"> </span>were amended to
authorize Family Court, when issuing a temporary order of protection to
issue<span style="mso-spacerun: yes;"> </span>an<span style="mso-spacerun: yes;">
</span>order directing<span style="mso-spacerun: yes;"> </span>the parties to
appear within seven business days of the issuance of the order in the family
court, in the same action, for consideration of an order for temporary spousal
support in accordance with article four of the family court act. If the court
directs the parties to appear, it must direct the parties to appear with information
with respect to income and assets. However, a temporary order for spousal
support may be issued pursuant to article four of the family court act on the
return date notwithstanding the respondent’s default upon notice, and
notwithstanding that information with respect to income and assets of the
petitioner or respondent may be unavailable.<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>The
additions to Family Court Act §828 (5) and 842 are identical and read as
follows: <o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>Notwithstanding the provisions of section
eight hundred seventeen<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>of this article, where a temporary order of spousal support has not<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>already been issued, the court may, in addition to the issuance of a<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>temporary order of protection pursuant to this section, issue an order<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>directing the parties to appear within seven business days of the issue-<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>acne of the order in the family court, in the
same action, for consider-<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>ation of an order for temporary spousal support in accordance with arti-<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>cle four of this act. If the court directs the parties to so appear, the<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>court shall direct the parties to appear with information with respect<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>to income and assets, but a temporary order for spousal support may be<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>issued pursuant to article four of this act on the return date notwith-<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>standing the respondent’s default upon notice and notwithstanding that<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>information with respect to income and assets of the petitioner or<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;">
</span>respondent may be unavailable.<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>Family
Court Act § 412(10), Domestic Relations Law § 236 [B][5-a][b][5] and Domestic
Relations Law § 236[B](6][b][4] were amended to fix the date of the biennial
adjustment of the spousal maintenance "cap" at March 1st, rather than
January 31st, commencing in 2020.<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>According
to the Assembly sponsors memorandum in support to the legislation the Family
Protection and Domestic Violence Intervention Act of 1994 (L. 1994, c. 222)
authorized Family Courts, when issuing orders of protection in family offense
cases, to issue temporary orders of child support. However, it did not
authorize the court to award support to married petitioners in family offense
proceedings who do not have minor, dependent children. Child support, but not
spousal support, may be ordered in conjunction with the issuance of an order of
protection. The amendment permits issuance of a temporary order of spousal
support on the return date of the family offense petition "notwithstanding
the respondent's default upon notice and notwithstanding that information with
respect to income and assets of the petitioner or respondent may be
unavailable." Upon making an order for temporary spousal support, the
court must set the spousal support matter down for determination of the final
order.<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>The
amendment of the date of calculation of the spousal maintenance<o:p></o:p></span></span></b></div>
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<b><span style="color: black; font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman"; mso-themecolor: text1;"><span style="font-family: Arial, Helvetica, sans-serif;">"cap" in the Family Court Act
and Domestic Relations Law, conforms the adjustment date to that already in
effect for the child support income "cap," self-support reserve and
poverty level guidelines amount.<o:p></o:p></span></span></b></div>
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<b><u><span style="background: white; color: red; mso-bidi-font-family: Arial;"><span style="font-family: Arial, Helvetica, sans-serif;">Appellate Divison, Second Department <o:p></o:p></span></span></u></b></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><b><span style="color: red; font-size: 11.0pt;">Court has no discretion
to deny trial application for money judgment where it is established that
arrears were due and unpaid</span></b><b><u><span style="background: white; color: red; mso-bidi-font-family: Arial;"><o:p></o:p></span></u></b></span></div>
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<!--[if supportFields]><b><span lang=EN-CA style='font-size:
11.0pt;mso-ansi-language:EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span></b><![endif]--><!--[if supportFields]><b><span
lang=EN-CA style='font-size:11.0pt;mso-ansi-language:EN-CA'><span
style='mso-element:field-end'></span></span></b><![endif]--><b><span style="font-size: 11.0pt;"><span style="font-family: Arial, Helvetica, sans-serif;">In Uttamchandani v Uttamchandani, --- N.Y.S.3d ----,
2019 WL 4457752, 2019 N.Y. Slip Op. 06645 (2d Dept.,2019) the Appellate
Division observed that a<span style="mso-spacerun: yes;"> </span>party to a
matrimonial action may make an application for a judgment directing the payment
of arrears at any time prior to or subsequent to the entry of a judgment of
divorce (see Domestic Relations Law § 244; McCoy v. McCoy, 117 A.D.3d 806, 808,
985 N.Y.S.2d 629). The court did not have the discretion to deny the
plaintiff’s application for leave to enter a money judgment since she
established that arrears were due and unpaid. Where there are triable issues of
fact as to the amount of arrears, an evidentiary hearing should be held.<o:p></o:p></span></span></b></div>
<br />Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-49121517614440691072019-09-25T10:29:00.001-04:002019-09-25T10:29:40.633-04:00Recent Decisions and Legislation September 16, 2019<br />
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<span class="MsoHyperlink"><b><span style="font-family: Arial, Helvetica, sans-serif;">September 16, 2019<o:p></o:p></span></b></span></div>
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<b><u><span style="background: white; color: red;"><span style="font-family: Arial, Helvetica, sans-serif;">Recent Legislation<o:p></o:p></span></span></u></b></div>
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<b><u><span style="font-family: Arial, Helvetica, sans-serif;"><span style="color: red;">Laws of 2019, Ch 258, effective September 16, 2019</span><span style="background: white; color: red;"><o:p></o:p></span></span></u></b></div>
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<b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;">Laws of 2019, Ch 258, enacted September 16, 2019 amended
Domestic Relations Law §110 by adding a new closing paragraph which provides: A
petition to adopt, where the petitioner's parentage is legally-recognized under
New York State law, shall not be denied solely on the basis that the
petitioner's parentage is already legally-recognized.<o:p></o:p></span></span></b></div>
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<b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;">According to the Assembly Memorandum in support of the
Legislation, under existing New York law, judges already have the ability to
grant an adoption of a child by a petitioner whose parentage is already
legally-recognized. These adoptions are routinely granted and can be very
important for many same-sex couples and their children. While the spouse of a
woman who gives birth to a child is presumed to be the child's parent, same-sex
couples find themselves in a legally precarious position when traveling in
places that do not fully respect the rights of non-biological parents even when
they are married. A New York adoption would be honored in another jurisdiction,
and afforded full faith and credit. This gives children the security that both
their parents will be legally recognized wherever family members may be.<o:p></o:p></span></span></b></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><u><span style="color: red;"><span style="font-family: Arial, Helvetica, sans-serif;">Laws of 2019, Ch 313
effective September 13, 2019<o:p></o:p></span></span></u></b></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>Laws of 2019, Ch 313 enacted September 13, 2019 amended
the Domestic Relations Law (DRL) and the Family Court Act (FCA) to specify that
the incarceration of the child support obligor is not to be treated as voluntary
unemployment in either the establishment or modification of a support order
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. The amendments provide that incarceration shall not
be a bar to establish a substantial change in circumstances, barring these
exceptions. (amendments are underlined below)<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>Domestic Relations Law § 240 (1-b) (b) (5) (v) was
amended to provide that incarceration shall not be considered voluntary
unemployment in establishing child support obligations, except in certain
situations. The amendment reads as follows:<o:p></o:p></span></span></b></span></div>
<pre><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="mso-spacerun: yes;"> </span></span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></b></span></span></pre>
<pre><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;"><span style="mso-spacerun: yes;"> </span></span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">(v)<span style="mso-spacerun: yes;"> </span>an amount imputed as income based upon the parent's former<o:p></o:p></span></b></span></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>resources or income, if the court determines that a parent has reduced<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>resources or income in order to reduce or avoid the parent's obligation<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>for child support; <u>provided that incarceration shall not be considered</u><o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><u>voluntary unemployment, unless such incarceration is the result of non-</u><o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><u>payment of a child support order, or an offense against the custodial</u><o:p></o:p></span></span></b></span></pre>
<pre><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="mso-spacerun: yes;"> </span><u>parent or child who is the subject of the order or judgment;<span style="mso-spacerun: yes;"> </span></u></span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><u><span style="color: green;"><o:p></o:p></span></u></b></span></span></pre>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>Domestic Relations Law § 236 [B] (9) (b) (2) (i) was
amended to provide that incarceration shall not be considered voluntary
unemployment in modifying child support obligations and shall not be a bar to
establish a substantial change in circumstances, except in certain situations.<o:p></o:p></span></span></b></span></div>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></span></pre>
<pre><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span></span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to read as follows:<o:p></o:p></span></b></span></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><o:p><span style="font-family: Arial, Helvetica, sans-serif;"> </span></o:p></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>(i) The court may modify an order of child support, including an order<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>incorporating without merging an agreement or stipulation of the<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>parties, upon a showing of a substantial change in circumstances.<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>Incarceration <u>shall not be considered voluntary unemployment and</u> shall<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>not be a bar to finding a substantial change in circumstances provided<o:p></o:p></span></span></b></span></pre>
<pre><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="mso-spacerun: yes;"> </span>such incarceration is not the result of non-payment </span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">of a child support<o:p></o:p></span></b></span></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>order, or an offense against the custodial parent or child who is the<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>subject of the order or judgment.<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></b></span></pre>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>Family Court Act § 413 subd. 1 (b) (5) (v) was amended to
provide that incarceration shall not be considered voluntary unemployment in
establishing child support obligations, except in certain situations.<o:p></o:p></span></span></b></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="mso-tab-count: 1;"> </span>Family Court Act § 413 subd. 1 (b) (5) (v) was amended </span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;">to read as follows:<o:p></o:p></span></b></span></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>(v) an amount imputed as income based upon
the parent’s former<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>resources or income, if the court determines
that a parent has reduced<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>resources or income in order to reduce or
avoid the parent’s obligation<o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>for child support; <u>provided that
incarceration shall not be considered</u><o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><u>voluntary unemployment, unless such incarceration
is the result of non-</u><o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><u>payment of a child support order, or an
offense against the custodial</u><o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><u>parent or child who is the subject of the
order or judgment; </u><o:p></o:p></span></span></b></span></div>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>Family Court Act § 451 subd. 3 (a) was amended to provide
that incarceration shall not be considered voluntary unemployment in modifying
child support obligations and shall not be a bar to establish a substantial change
in circumstances, except in certain situations.<o:p></o:p></span></span></b></span></div>
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<pre><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="mso-tab-count: 1;"> </span>Family Court Act § 451 subd. 3 (a) was amended </span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;">to read as follows:<o:p></o:p></span></b></span></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;"><o:p><span style="font-family: Arial, Helvetica, sans-serif;"> </span></o:p></span></b></span></pre>
<pre><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span></span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">(a) The court may modify an order of child support, including an order<o:p></o:p></span></b></span></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>incorporating without merging an agreement or stipulation of the<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>parties, upon a showing of a substantial change in circumstances.<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>Incarceration <u>shall not be considered voluntary unemployment and</u> shall<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>not be a bar to finding a substantial change in circumstances provided<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>such incarceration is not the result of non-payment of a child support<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>order, or an offense against the custodial parent or child who is the<o:p></o:p></span></span></b></span></pre>
<pre><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="mso-spacerun: yes;"> </span>subject of the order or judgment. </span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;"><o:p></o:p></span></b></span></span></pre>
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<span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="mso-tab-count: 1;"> </span>Social Services Law</span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;">
</span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">§ </span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">111-g, subd. 3 (a) </span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">was amended to comply with the
mandatory provision of the federal Bipartisan Budget Act of 2018 to increase
from $25 to $35 the annual service fee for providing child support services in
the case of an individual who has never received Title IV-A assistance. In
addition, the Social Services Law</span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: blue;"> </span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">was amended to comply with
the federal requirement to increase from $500 to $550 the amount of support
that the State must collect and disburse to the family prior to imposing the
fee for each federal fiscal year. <o:p></o:p></span></b></span></span></div>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><o:p><span style="font-family: Arial, Helvetica, sans-serif;"> </span></o:p></span></b></span></pre>
<pre><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="mso-tab-count: 1;"> </span>Social Services Law </span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">§ </span></b></span><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;">111-g, subd. 3 (a) was amended to read as follows:<o:p></o:p></span></b></span></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><o:p><span style="font-family: Arial, Helvetica, sans-serif;"> </span></o:p></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span><span style="mso-spacerun: yes;"> </span>(a)<span style="mso-spacerun: yes;"> </span>A person who is receiving child support services pursuant to this<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>section who has never received assistance pursuant to title IV-A of the<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>federal social security act shall be subject to an annual service fee of<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><u>thirty-five</u> dollars for each child support case if at least five hundred <u>fifty</u> dollars of <span style="mso-spacerun: yes;"> </span>support has been collected in the <span style="mso-spacerun: yes;"> </span>federal fiscal year. Where a custodial parent has children with different noncustodial parents, the order payable by each noncustodial parent <span style="mso-spacerun: yes;"> </span>shall be a separate child support case for the purpose of imposing an<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>annual service fee.<span style="mso-spacerun: yes;"> </span>The fee shall be deducted from child support<o:p></o:p></span></span></b></span></pre>
<pre><span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>payments received on behalf of the individual receiving services. <o:p></o:p></span></span></b></span></pre>
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<span style="mso-bookmark: _Hlk19799465;"><b><span style="color: black;"><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>According to the Assembly Memorandum in support of the
Legislation, the bill implements federal requirements and provides that
incarceration shall not be a bar to establish a substantial change in
circumstance, 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. Because incarceration cannot be treated as
voluntary unemployment (except in the enumerated circumstances), support awards
for incarcerated individuals will not be imputed from pre-incarceration
earnings. Instead, modification would be based on the incarcerated individual's
current financial circumstances. If there is a basis for a modification, the
child support guidelines would be applied to the incarcerated individual's
current income and assets to determine his or her new support obligation. While
incarceration itself would not be grounds for a modification, any significant
reduction in the noncustodial parent's ability to pay support could be the
basis of a downward modification (except in the enumerated circumstances).<o:p></o:p></span></span></b></span></div>
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<b><u><span style="color: red;"><span style="font-family: Arial, Helvetica, sans-serif;">Appellate
Division, First Department<o:p></o:p></span></span></u></b></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><b><span style="color: red;">Support
Magistrate's failure to make a recommendation as to incarceration upon finding
of willfulness constitutes recommendation against incarceration. Summary of
alleged arrears, admitted into evidence without testimony or supporting
documentation is hearsay, and not competent evidence</span></b><b>.<o:p></o:p></b></span></div>
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<!--[if supportFields]><span lang=EN-CA style='mso-ansi-language:
EN-CA'><span style='mso-element:field-begin'></span><span
style='mso-spacerun:yes'> </span>SEQ CHAPTER \h \r 1</span><![endif]--><!--[if supportFields]><span
lang=EN-CA style='mso-ansi-language:EN-CA'><span style='mso-element:field-end'></span></span><![endif]--><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span><b>In
Matter of Michael R v Amanda R, ___AD3d___, 2019 WL 4264401 (1<sup>st</sup>
Dept., 2019) the first and only day of trial on the father’s enforcement
petition took place on February 2, 2016 before the Support Magistrate. On that
date, the father offered into evidence, without objection, his typewritten
summary of the amount that he claimed the mother then owed for basic child
support and for her share of the children’s add-on expenses. The father’s
summary alleged that the mother owed total arrears of $63,003.53, from October
15, 2012 through November 1, 2015. However, he did not testify or present any
documentation or other evidence to support the numbers in his chart. The mother
testified as to her income, employment, and payment of child support and add-on
expenses, and put into evidence, without objection, the parties’ child support
stipulation her tax returns for 2012 through 2014, a letter of employment,
documentation of unemployment benefits she had received, and her financial
disclosure affidavit. At the end of the day, the court adjourned the proceeding
during the mother’s testimony. The court never took further testimony.
Subsequently, the court granted the father’s motion pursuant to CPLR 3126 for
an order of preclusion against” the mother for failure to provide post trial
disclosure. <o:p></o:p></b></span></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>On or about December 7, 2017, the Support Magistrate
issued findings of fact, an order of disposition, and an “Order Entry Money
Judgment.” The findings of fact stated that the mother’s testimony and evidence
at trial are stricken, based on the preclusion order. They state that neither
party “submitted proof of income, expenses, or support of others.” They also
state that the mother owed the father arrears totaling $123,720.98, apparently
based solely on the father’s “alleged statement of arrears” submitted to the
Support Magistrate on a date when no testimony was taken, and no exhibits
received in evidence. The order of disposition and the “Order Entry Money
Judgment” directed entry of a money judgment against the mother in the amount
of $123,720.98. In addition, the “Order Entry Money Judgment” directed the
mother to pay the father’s attorney $4,680 as counsel fees. The findings and
the two orders each contained a determination that the mother had willfully
violated an order of support dated April 25, 2014, although that order was not
in evidence. On February 8, 2018, the father and counsel for each party
appeared before the Family Court Judge, who issued a warrant directing that the
mother be brought before the court, and stated, “And at that time when [the
mother] is returned before this Court on that warrant, this Court will then
determine ... how this Court should proceed.”<o:p></o:p></span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>After Family Court denied the mother’s objections to the
Support Magistrate’s findings of fact and orders entered on December 7, 2017
the Mother appealed and the Appellate Division reversed. It held that a party
may seek additional disclosure after trial commences only by permission of the
trial court on notice (CPLR 3102[d]). Here, the father never sought permission
for post-trial discovery. Nor did the father’s motion papers demonstrate any
reason why he should have been permitted to pursue additional discovery more
than a year after trial commenced. It held that in view of this, and the fact
that the mother faced contempt penalties if she were unable to present evidence
about her ability to pay, the Support Magistrate improvidently exercised his
discretion in “precluding” the mother from presenting evidence and testimony
that he had already admitted into evidence at trial more than a year
previously.<o:p></o:p></span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>The Court noted that the Family Court Rules require that
a support magistrate's fact findings that include a finding of willfulness
“shall include ... a recommendation regarding the sanctions that should be
imposed, including a recommendation whether the sanction of incarceration is
recommended” (22 NYCRR 205.43[g]). A support magistrate's written findings of
facts must be issued within five days of the conclusion of a willfulness
hearing (22 NYCRR 205.43[f]). It had previously held that a “Support
Magistrate's failure to make a recommendation as to incarceration upon [a]
finding of willfulness essentially constituted a recommendation against
incarceration” (Matter of Carmen R. v. Luis I., 160 A.D.3d 460, 462, 74
N.Y.S.3d 37 [1st Dept. 2018]).<o:p></o:p></span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;">Here, neither the Support
Magistrate's findings of facts issued on or about December 7, 2017 nor any
other document in the record contained a recommendation as to incarceration or
a cure amount. It was not clear why the Family Court Judge before whom the
parties appeared on February 8, 2018 stated on the record that she “believe[d]”
that he had made such a recommendation. In addition, the attorneys for both
parties each confirmed on the record that they were unaware that the Support
Magistrate had made such a recommendation. Therefore, it was clear that no
recommendation had been “transmitted to the parties” with the findings of
facts. Moreover, there was no order in the record in which a Family Court Judge
confirmed any recommendation by the Support Magistrate as to incarceration.
Accordingly, Family Court erred in making a finding in its March 20, 2018 order
that the Support Magistrate had made such a recommendation.<o:p></o:p></span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>The
Appellate Division held that Family Court erred in denying the mothers
objections on the basis that the mother’s counsel failed to file a proper
affidavit of service. Any error in the affidavit of service was inadvertent and
did not prejudice the father. Family Court Act § 439(e) provides that a party
filing objections must serve those objections upon the opposing party, and that
proof of service must be filed with the court at the time that the party’s
objections are filed. Here, the father did not argue either that the mother
failed to serve the objections on him or that he suffered any prejudice.
Accordingly, despite the mother’s attorney’s sloppy drafting, the Family Court
should have addressed the merits of the mother’s objections (Matter of Worner
v. Gavin, 112 AD3d 956, 957 [2d Dept 2013]; Matter of Nash v. Yablon–Nash, 106
AD3d 740, 741 [2d Dept 2013]; Matter of Perez v. Villamil, 19 AD3d 501 [2d Dept
2005] ).<o:p></o:p></span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-spacerun: yes;"> </span>The Appellate Division further held that
because the Support Magistrate had struck all of the mother’s testimony and
evidence, including a copy of the parties’ child support agreement, the only
evidence supporting the father’s claims was his summary of alleged arrears,
admitted into evidence without testimony or supporting documentation on the
single day of trial. The summary itself was hearsay, and was not competent
evidence of the mother’s obligation to pay child support or that she failed to
pay any sums she was obligated to pay. Nor was it clear and convincing evidence
of respondent’s willful failure to pay such sums. Moreover, the summary
apparently relied on by the Support Magistrate, which the father provided to
the court on a later date when no testimony was taken or evidence entered, was
not evidence at all.<o:p></o:p></span></b></div>
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<b><span style="font-family: Arial, Helvetica, sans-serif;"><span style="mso-tab-count: 1;"> </span>The Appellate Division reversed on the law and vacated
the order which granted<span style="mso-spacerun: yes;"> </span>a preclusion
order against respondent mother; reversed the order which, upon the finding
that the mother willfully violated a child support order, directed entry of a
money judgment and directed the mother to pay petitioner father's counsel fees;
reversed the order which denied the mother's objections, on the law, without
costs, and remanded the matter remanded for further proceedings consistent with
its<span style="mso-spacerun: yes;"> </span>order.<span style="mso-tab-count: 1;"> </span>Finally, the Appellate Division held that no appeal lies from a
warrant of arrest which is a non appealable paper. (see Holubar v. Holubar,
2011 N.Y. Slip Op 66140[U] [2d Dept 2011]; CPLR 5701) and dismissed the appeal
from that order.<o:p></o:p></span></b></div>
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Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0tag:blogger.com,1999:blog-22299114.post-16760479404619152842019-09-12T10:29:00.002-04:002019-09-12T10:29:35.745-04:00Recent Decisions and Legislation September 1, 2019<div class="MsoNormal">
<b><u><span style="background: white; color: red;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Recent Legislation<o:p></o:p></span></span></u></b></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span></span></b><b><span style="color: red; font-size: 11.0pt;">Domestic Relations Law </span></b><b><span style="color: red; font-size: 11.0pt;">§</span></b><b><span style="color: red; font-size: 11.0pt;">240 (1-c) (b) was amended by Laws of 2019</span></b><b><span style="font-size: 11.0pt;">, Ch 182 to add to subdivision (B) which provides that
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="font-size: 11.0pt; mso-bidi-font-family: Arial; mso-fareast-font-family: "Times New Roman";"><span style="mso-tab-count: 1;"> </span>There<span style="mso-spacerun: yes;"> </span>is<span style="mso-spacerun: yes;"> </span>a
rebuttable presumption that it is not in the best interests of the child to </span><u><span style="color: green; font-size: 11.0pt;"><span style="mso-spacerun: yes;"> </span></span></u><span style="color: black; font-size: 11.0pt;">be<span style="mso-spacerun: yes;">
</span>placed<span style="mso-spacerun: yes;"> </span>in<span style="mso-spacerun: yes;"> </span>the custody of or have unsupervised visits
with a person who has been convicted of a felony sex<span style="mso-spacerun: yes;"> </span>offense,<span style="mso-spacerun: yes;">
</span>as<span style="mso-spacerun: yes;"> </span>defined<span style="mso-spacerun: yes;"> </span>in section<span style="mso-spacerun: yes;">
</span>70.80<span style="mso-spacerun: yes;"> </span>of<span style="mso-spacerun: yes;"> </span>the penal law, or convicted of an offense in
another jurisdiction which, if committed in this state, would constitute such<span style="mso-spacerun: yes;"> </span>a felony<span style="mso-spacerun: yes;">
</span>sex<span style="mso-spacerun: yes;"> </span>offense, where the victim of
such offense was the child who is the subject of the proceeding.</span><sup><span style="font-size: 11.0pt;"> <span style="mso-spacerun: yes;"> </span></span></sup><sup><span style="color: red; font-size: 11.0pt;">►</span></sup><!--[if supportFields]><b><span
style='font-size:11.0pt;mso-bidi-font-family:Arial'><span style='mso-element:
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style='font-size:11.0pt;mso-bidi-font-family:Arial'><span style='mso-element:
field-end'></span></span></b><![endif]--><span style="font-size: 11.0pt; mso-bidi-font-family: Arial;">Laws of 2019, Ch 182, <span style="display: none; mso-hide: all;">&s;</span>§1, effective September 22, 2019.</span><u><span style="color: green; font-size: 11.0pt;"><o:p></o:p></span></u></b></span></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="font-size: 11.0pt; mso-bidi-font-family: Arial;"><span style="mso-tab-count: 1;"> </span></span></b><b><span style="color: red; font-size: 11.0pt;">Family Court Act §651 (a) was amended </span></b><b><span style="font-size: 11.0pt; mso-bidi-font-family: Arial;">by Laws of 2019, Ch 182, <span style="display: none; mso-hide: all;">&s;</span>read as follows:<o:p></o:p></span></b></span></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="font-size: 11.0pt; mso-bidi-font-family: Arial;"><span style="mso-tab-count: 1;"> </span>When referred from the supreme court or county court to
the family court, the family court has jurisdiction to determine, in accordance
with </span><span style="color: #008100; font-size: 11.0pt;">subdivisions </span><span style="font-size: 11.0pt; mso-bidi-font-family: Arial;">one </span><span style="color: #008100; font-size: 11.0pt;">and one-c </span><span style="font-size: 11.0pt; mso-bidi-font-family: Arial;">of section two hundred
forty of the domestic relations law and with the same powers possessed by the
supreme court in addition to its own powers, habeas corpus proceedings and
proceedings brought by petition and order to show cause, for the determination
of the custody or visitation of minors.<span class="MsoFootnoteReference"> </span><span style="mso-spacerun: yes;"> </span></span><!--[if supportFields]><b><span
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style='font-size:11.0pt;mso-bidi-font-family:Arial'><span style='mso-element:
field-end'></span></span></b><![endif]--><span style="font-size: 11.0pt; mso-bidi-font-family: Arial;">Laws of 2019, Ch 182, <span style="display: none; mso-hide: all;">&s;</span>§2, effective September 22, 2019.<o:p></o:p></span></b></span></div>
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<b><u><span style="color: red; font-size: 11.0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Appellate Division, Fourth Department<o:p></o:p></span></span></u></b></div>
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<b><span style="color: red; font-size: 11.0pt; letter-spacing: 0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Mother’s Refusal to Believe Child’s Disclosure of Sexual Abuse and Her
Continued Commitment to Alleged Abuser Rendered Her Unfit to Have Custody of
Child<o:p></o:p></span></span></b></div>
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<b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>In Matter of Edmonds v
Lewis, --- N.Y.S.3d ----, 2019 WL 3955058, 2019 N.Y. Slip Op. 06316 (4<sup>th</sup>
Dept., 2019) the Appellate Division affirmed an order which granted the fathers
motion to<span style="mso-spacerun: yes;"> </span>modify a prior joint custody
order so as to grant him sole custody of child and granted the mother
supervised visitation with child. The parties were the parents of a child born
in 2012. In October 2015, they stipulated to a joint custody order that granted
primary physical residence of the child to the father and visitation to the
mother. The mother’s visitation was suspended in May 2016, following the
child’s disclosure of sexual abuse by the mother’s boyfriend. After the mother
agreed to keep her boyfriend away from the child, Family Court granted the
mother supervised visitation. In December 2016, however, the court temporarily
suspended that visitation and, as of March 2017, the mother’s visitation had
not resumed. The Appellate Division found a sound and substantial basis in the
record to support the court’s determination. The mother’s refusal to believe
the child’s disclosure of sexual abuse and her continued commitment to the
alleged abuser rendered her unfit to have custody of the child. The quality of
the home environment of the father was superior to that of the mother inasmuch
as the mother resided in a one-bedroom apartment with the alleged abuser. The
record established that the father, who was attentive to the child’s
disclosures of abuse, was better able to provide for the child’s emotional and
intellectual development and that the court’s determination aligned with the
child’s desires. It rejected the mother’s contention that the court erred in
directing that her visitation be supervised. “Supervised visitation is a matter
left to the sound discretion of the court and will not be disturbed where ...
there is a sound and substantial basis in the record to support such
visitation”. Here, the record established that the mother repeatedly put the
child at risk by violating court orders and by permitting the alleged abuser to
have access to the child.<o:p></o:p></span></span></b></div>
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<b><span style="color: red; font-size: 11.0pt; letter-spacing: 0pt;"><span style="font-family: "arial" , "helvetica" , sans-serif;">Fourth Department, Holds Request by Party to Waive Right to Counsel Places
in Issue Whether Court Fulfilled its Obligation to Ensure A Valid Waiver,
Which, As Subject of Contest Before the Court, Could Be Reviewed.<o:p></o:p></span></span></b></div>
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<span style="font-family: "arial" , "helvetica" , sans-serif;"><b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="mso-tab-count: 1;"> </span>In Matter of DiNunzio v
Zylinski, --- N.Y.S.3d ----, 2019 WL 3955273, 2019 N.Y. Slip Op. 06337 (4<sup>th</sup>
Dept., 2019) a</span></b><b><span style="color: #212121; font-size: 11.0pt;">fter the<span style="mso-spacerun: yes;"> </span>mother
failed to return to courtroom following recess and did not appear for the<span style="mso-spacerun: yes;"> </span>remainder of hearing, the Family Court, found
the mother in default and entered an order granting father sole custody of
child. On appeal the Appellate Division held that the validity of the
mother's waiver of the right to counsel was the subject of contest before trial
court, and thus the mother was permitted to raise on appeal her contention that
trial court erred in failing to ensure that her waiver was knowing, voluntary,
and intelligent.</span></b><b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><o:p></o:p></span></b></span></div>
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<b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>The Appellate Division
observed that New York State law recognizes that “[p]ersons involved in certain
family court proceedings have a constitutional right to counsel in such
proceedings” (Family Ct Act § 261). Parties entitled to counsel include, as
pertinent here, any person seeking custody of his or her child or “contesting
the substantial infringement of his or her right to custody of such child” (§
262[a][v]). When determining whether a party may properly waive the right to
counsel in favor of proceeding pro se, the trial court, “[i]f a timely and
unequivocal request has been asserted, ... is obligated to conduct a ‘searching
inquiry’ to ensure that the [party’s] waiver is knowing, intelligent, and
voluntary” (Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d
535, 953 N.E.2d 773 [2011] ). Such a request for relief triggers the obligation
of the court, which is permitted to grant the relief only upon “a showing on
the record of a knowing, voluntary and intelligent waiver of the [right to
counsel]” (Matter of Storelli v. Storelli, 101 A.D.3d 1787, 1788, 958 N.Y.S.2d
249 [4th Dept 2012]. For that reason, it held that a request by a party to
waive the right to counsel and proceed pro se, as the mother made here, placed
in issue whether the court fulfilled its obligation to ensure a valid waiver.
The record supported the conclusion that whether the mother validly waived her
right to counsel was a contested issue before the court. As the issue of the
mother’s waiver of the right to counsel was the subject of contest before the
court and, it could be reviewed by the Appellate Division.<o:p></o:p></span></span></b></div>
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<b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>The
mother, contended that the court erred in failing to ensure, in response to her
request, that her waiver of the right to counsel was knowing, voluntary, and
intelligent. The Appellate Division held that a showing on the record of a
knowing, voluntary and intelligent waiver of the right to counsel is a
prerequisite to the court’s grant of that relief. The first dissent’s assertion
that the mother was not aggrieved because she was permitted to represent
herself as she requested assumed that the mother made “a knowing, voluntary and
intelligent choice” in obtaining that relief. That issue was the subject of
contest before the court and was therefore reviewable on appeal from the orders
in appeal Nos. 1–5 (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10, 225
N.E.2d 741. <o:p></o:p></span></span></b></div>
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<b><span style="color: windowtext; font-size: 11.0pt; letter-spacing: 0pt; mso-bidi-font-family: Arial;"><span style="font-family: "arial" , "helvetica" , sans-serif;"><span style="mso-tab-count: 1;"> </span>The majority rejected the
argument of the first dissent that the statutory aggrievement requirement in
CPLR 5511, which required the mother to move to vacate her default in order to
appeal from that order, precluded consideration of an order or judgment
“entered upon the default of an aggrieved party”. The dissent pointed out that
in circumventing the default, the majority relied on a purported exception that
permits the Court to review issues that were the subject of contest before the
appealing party’s default (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10,
225 N.E.2d 741). The first dissent did not agree that James created, via a mere
footnote, such a broad exception to the aggrievement requirement, and saw
nothing in that case to suggest otherwise. It noted that the relevant footnote
in James did nothing more than appropriately apply the aggrievement requirement
to the facts of that case.</span><o:p></o:p></span></b></div>
Joel R. Brandeshttp://www.blogger.com/profile/00071300360715546038noreply@blogger.com0