Recent Decisions and Legislation October 1, 2019

Recent Legislation

Laws of 2019, Ch 335, enacted and effective October 3, 2019 amended Family 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]

               Family Court Act §§828 and 842  were amended to authorize Family Court, when issuing a temporary order of protection to issue  an  order directing  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.

               The additions to Family Court Act §828 (5) and 842 are identical and read as follows:

                Notwithstanding the provisions of section eight hundred seventeen

   of this article, where a temporary order of spousal support has not

   already been issued, the court may, in addition to the issuance of a

   temporary order of protection pursuant to this section, issue an order

   directing the parties to appear within seven business days of the issue-

   acne of the order in the family court, in the same action, for consider-

   ation of an order for temporary spousal support in accordance with arti-

   cle four of this act. If the court directs the parties to so appear, the

   court shall direct the parties to appear with information with respect

   to income and assets, but a temporary order for spousal support may be

   issued pursuant to article four of this act on the return date notwith-

   standing the respondent’s default upon notice and notwithstanding that

   information with respect to income and assets of the petitioner or

   respondent may be unavailable.

               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.

               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.

               The amendment of the date of calculation of the spousal maintenance

"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.

Appellate Divison, Second Department

Court has no discretion to deny trial application for money judgment where it is established that arrears were due and unpaid

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  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.

Recent Decisions and Legislation September 16, 2019

September 16, 2019

Recent Legislation

Laws of 2019, Ch 258, effective September 16, 2019

           

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.

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.

Laws of 2019, Ch 313 effective September 13, 2019

            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)

            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:

     (v)  an amount imputed as income based upon the parent's former

   resources or income, if the court determines that a parent has reduced

   resources or income in order to reduce or avoid the parent's obligation

   for child support; provided that incarceration shall not be considered

   voluntary unemployment, 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;  

            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.

               Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to read as follows:

               (i) The court may modify an order of child support, including an order

   incorporating without merging an agreement or stipulation of the

   parties, upon a showing of a substantial change in circumstances.

   Incarceration shall not be considered voluntary unemployment and shall

   not be a bar to finding a substantial change in circumstances provided

   such incarceration is not the result of non-payment of a child support

   order, or an offense against the custodial parent or child who is the

   subject of the order or judgment.

            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.

            Family Court Act § 413 subd. 1 (b) (5) (v) was amended to read as follows:

     (v) an amount imputed as income based upon the parent’s former

   resources or income, if the court determines that a parent has reduced

   resources or income in order to reduce or avoid the parent’s obligation

   for child support; provided that incarceration shall not be considered

   voluntary unemployment, 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;

            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.

               Family Court Act § 451 subd. 3 (a) was amended to read as follows:

     (a) The court may modify an order of child support, including an order

   incorporating without merging an agreement or stipulation of the

   parties, upon a showing of a substantial change in circumstances.

   Incarceration shall not be considered voluntary unemployment and shall

   not be a bar to finding a substantial change in circumstances provided

   such incarceration is not the result of non-payment of a child support

   order, or an offense against the custodial parent or child who is the

   subject of the order or judgment. 

            Social Services Law § 111-g, subd. 3 (a) 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 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.

               Social Services Law § 111-g, subd. 3 (a) was amended to read as follows:

                (a)  A person who is receiving child support services pursuant to this

   section who has never received assistance pursuant to title IV-A of the

   federal social security act shall be subject to an annual service fee of

   thirty-five dollars for each child support case if at least five hundred fifty dollars of                  support has been collected in the    federal fiscal year. Where a custodial parent has children with different noncustodial parents, the order payable by each noncustodial parent    shall be a separate child support case for the purpose of imposing an

   annual service fee.  The fee shall be deducted from child support

   payments received on behalf of the individual receiving services. 

            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).

Appellate Division, First Department

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.

          In Matter of Michael R v Amanda R, ___AD3d___, 2019 WL 4264401 (1^st 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.

            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.”

            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.

            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]).

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.

            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] ).

        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.

            The Appellate Division reversed on the law and vacated the order which granted  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  order.     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.

Recent Decisions and Legislation September 1, 2019

Recent Legislation

           

            Domestic Relations Law §240 (1-c) (b) was amended by Laws of 2019, Ch 182 to add to subdivision (B) which provides that

               There  is  a rebuttable presumption that it is not in the best interests of the child to   be  placed  in  the custody of or have unsupervised visits with a person who has been convicted of a felony sex  offense,  as  defined  in section  70.80  of  the penal law, or convicted of an offense in another jurisdiction which, if committed in this state, would constitute such  a felony  sex  offense, where the victim of such offense was the child who is the subject of the proceeding.  ^►Laws of 2019, Ch 182, &s;§1, effective September 22, 2019.

            Family Court Act §651 (a) was amended by Laws of 2019, Ch 182, &s;read as follows:

            When referred from the supreme court or county court to the family court, the family court has jurisdiction to determine, in accordance with subdivisions one and one-c 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.  Laws of 2019, Ch 182, &s;§2, effective September 22, 2019.

    

Appellate Division, Fourth Department

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

            In Matter of Edmonds v Lewis, --- N.Y.S.3d ----, 2019 WL 3955058, 2019 N.Y. Slip Op. 06316 (4^th Dept., 2019) the Appellate Division affirmed an order which granted the fathers motion to  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.

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.

            In Matter of DiNunzio v Zylinski, --- N.Y.S.3d ----, 2019 WL 3955273, 2019 N.Y. Slip Op. 06337 (4^th Dept., 2019) after the  mother failed to return to courtroom following recess and did not appear for the  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.

            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.

            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.

            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.

Recent Decisions and Legislation August 16, 2019

Recent Articles of Interest

“Clarifying the Concepts of Transmutation and Commingling”  by Joel R. Brandes appeared in the August 22, 2019 edition of the New York Law Journal on page 4, Col. 1. Click here to read the article
    

Appellate Division, Second Department

An application during trial for judgment for arrears must be made “upon such notice to the spouse or other person as the court may direct.” Defendant in contempt for violation of Automatic orders.

          In Mage v Mage, --- N.Y.S.3d ----, 2019 WL 3436840, 2019 N.Y. Slip Op. 05973 (2d Dept., 2019) the parties, who were married in 1991, had three children. The plaintiff commenced this action for a divorce in 2012. Prior to trial, the plaintiff moved to hold the defendant in contempt, and the defendant cross-moved to hold the plaintiff in contempt, for their alleged willful disobedience of the automatic orders applicable to matrimonial actions (see Domestic Relations Law § 236[B][2][b]; Judiciary Law § 753[A][1]; Uniform Rules for Trial Courts [22 NYCRR] § 202.16). The Supreme Court referred both contempt motions to trial. At the conclusion of the trial, in a decision and order dated February 13, 2015, the court granted the plaintiff’s motion, found that the defendant was in contempt, and denied the defendant’s cross motion, finding that the plaintiff’s conduct did not rise to the level of sanctionable conduct.

            The Appellate Division agreed with the Supreme Court’s determination that the defendant knowingly failed to comply with the court’s automatic order which restricted him from transferring, selling, or converting marital funds, and that the defendant’s actions resulted in prejudice to the plaintiff (see Judiciary Law § 753[A][3]). It agreed with the court’s grant of the plaintiff’s motion to hold the defendant in contempt.

            The Appellate Division held that Supreme Court should not have awarded the plaintiff arrears for unreimbursed medical and extracurricular expenses the defendant was directed to pay in a pendente lite order dated February 11, 2013. A party to a matrimonial action may make an application for a judgment directing payment of such arrears at any time prior to or subsequent to the entry of a judgment of divorce (see Domestic Relations Law § 244). However, an application for a judgment directing payment of arrears must be made “upon such notice to the spouse or other person as the court may direct” (id.). Here, the plaintiff made no such application.

Only child, parent or Indian custodian from whose custody child removed, and Indian child’s tribe have standing to allege a violation of ICWA 1911, 1912, or 1913

            In Matter of Connor, --- N.Y.S.3d ----, 2019 WL 3436659, 2019 N.Y. Slip Op. 05979 (2d Dept., 2019) in January 2010, the subject child was born to the mother and the nonparty birth father, a member of the Choctaw Indian tribe. The mother and the birth father were never married. Thereafter, in January 2012, the mother married Jacob D. (respondent). In May 2012, the respondent, with the mother’s consent, filed a petition for adoption of the child. The birth father voluntarily relinquished his parental rights to the child during the adoption proceeding. On May 15, 2013, the Family Court issued an order of adoption, approving the adoption of the then three-year-old child by the respondent. On May 5, 2017, the respondent commenced an action for a divorce against the mother. In April 2018, while the divorce action was pending, the mother moved in the Family Court, in effect, pursuant to Domestic Relations Law § 114(3) to vacate the order of adoption in favor of the respondent on the ground that the child was an Indian child and the adoption proceeding was not held in compliance with sections 1911, 1912, and 1913 of the Indian Child Welfare Act of 1978 (25 USC § 1901 et seq.;  ICWA) or, in the alternative, on the ground that the adoption was effectuated through fraud, misrepresentation, and other misconduct. Family Court, inter alia, denied the mother’s motion.

            The Appellate Division affirmed. It agreed with the Family Court’s determination that the mother lacked standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA. The ICWA provides that “[a]ny Indian Child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title” (25 USC § 1914; see 25 CFR 23.137[a] ). Although the adoption proceeding involved the voluntary termination of the birth father’s parental rights to the subject child, the plain language of both 25 USC § 1914 and 25 CFR 23.137(a) was clear that only the child, the parent or Indian custodian from whose custody the child has been removed, and the Indian child’s tribe have standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA (see 25 USC § 1914; 25 CFR 23.137[a] ). Since the mother did not fall into any of those categories, she lacked standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA (see 25 USC § 1914; 25 CFR 23.137[a]). “[T]he language of [section] 1914 itself ... limits standing to challenge state-law terminations of parental right to parents ‘from whose custody such child was removed’ ” (Matter of Adoption of Child of Indian Heritage, 111 N.J. 155, 179, 543 A.2d 925, 937, quoting 25 USC § 1914; see Matter of S.C., 1992 OK 98, ¶ 23, 833 P.2d 1249, 1254, overruled on other grounds Matter of Baby Boy L., 2004 OK 93, 103 P.3d 1099).

            The Appellate Division also agreed with the Family Court’s determination that the order of adoption should not be vacated on any of the other grounds asserted by the mother. Domestic Relations Law § 114(3) permits a court in which an order of adoption was made to “open, vacate or set aside such order of adoption for fraud, newly discovered evidence or other sufficient cause.” “[T]he fraud which will suffice to vacate an order or judgment must be fraud in the very means by which the judgment was procured”. The mother’s allegations of domestic violence during her marriage to the respondent, and that the respondent “never intended to be a decent and loving parent to [the child] as promised,” did not amount to fraud or otherwise provide a legal ground upon which the order of adoption may be vacated.

Appellate Division, Third Department

Third Department Joins Fourth Department holding child in a custody matter does not have full party status

In Matter of Kanya J v. Christopher K, 2019 WL 3475277 (3d Dept.,2019)

Family Court issued an order in February 2018, which, among other things, granted the father joint legal custody of the child. The Appellate Division, inter alia, denied the mother’s motion to strike the attorney for the child’s brief on the basis that the attorney for the child failed to indicate in her brief whether she had met with the child, what the child’s preferences were and why she was substituting her judgment. In her responding affirmation, and again during oral argument, the appellate attorney for the child confirmed that she had interviewed the child and had determined that the arguments made by the trial attorney for the child were still appropriate arguments on the appeal. The Court found that the foregoing demonstrated that the appellate attorney for the child has complied with the requirements of 22 NYCRR 7.2(d)(3) and, therefore, the mother’s motion was denied. In a footnote the court observed that contrary to the father’s contention, the mother had standing to bring this motion inasmuch as a child in a custody matter does not have full party status (see Matter of Lawrence v. Lawrence, 151 A.D.3d 1879, 1279 [2017]; Matter of Kessler v. Fancher, 112 A.D.3d 1323, 1324, 978 N.Y.S.2d 501 [2013]).