Second Department Holds That it Is Only Appropriate for an Attorney for a Child to Form an Opinion as to What Would Be in the Child's Best Interest, after Gathering Evidence and Making a Complete Investigation.

In Matter of Brown v Simon,--- N.Y.S.2d ----, 2014 WL 7392499 (N.Y.A.D. 2 Dept.),
the parties entered into an agreement to share joint custody of the child, with the mother to have residential custody, which was  embodied in an order entered on consent of the parties. Shortly after the agreement was entered into, the child's day care provider reported to the father that the child was not allowing herself to be cleaned when her diaper was being changed, and her resistance had gotten worse. Although an examination of the child by her pediatrician revealed no physical evidence of sexual abuse, the day care provider reported her concerns to the Office of Child Protective Services (CPS). The father and mother each filed a petition seeking sole custody of the child.   Before a hearing on the petitions was held, the attorney for the  child, based on the out-of-court statements of the day care provider, made an application for the father to be awarded temporary custody of the child. The Family Court granted that application. The Appellate Division pointed out that such an award was improper, as it was based on the disputed hearsay allegations ( Matter of  Swinson v. Brewington, 84 AD3d 1251).  

The Appellate Division held that during the hearing on the petitions, the Family Court erred in permitting the father to testify that the child told him that the mother's other daughter "did it." The father's testimony was intended to show that the mother's other daughter might have sexually abused the subject child. The statement was inadmissible hearsay, and did not qualify as either prompt outcry evidence, or as a spontaneous declaration. The admission of this hearsay statement could not be deemed to be harmless, as this hearsay statement was the only evidence presented to support the allegations that the child had been sexually assaulted and that the sexual assault was committed by the child's older sibling.  Both CPS and the Administration for Children's Services investigated the allegations and concluded that the allegations were unfounded, and an expert in the area of child abuse concluded that there was no evidence that the child had been physically or sexually abused. 

The Appellate Division held that Family Court also erred in overruling the mother's objection to the testimony of her other daughter's treating physician about his treatment of that child on the ground that the Privacy Rule standard of the Health Insurance Portability and Accountability Act of 1996 ( HIPAA) for disclosure of her other daughter's medical information was not met (45 CFR 164.512 [e][1][i], [ii] ). The mother's other daughter was not a party to the proceeding, and permitting her treating physician to testify in violation of HIPAA directly impaired the interest protected by the HIPAA Privacy Rule of keeping one's own medical records private. As such, the Family Court should have sustained the mother's objection to this testimony, This error could not be deemed harmless, as the physician's testimony was used by the father and the attorney for the subject child to portray the mother's other daughter as seriously disturbed.

  Significantly, the Second Department held that an attorney for the child should not have a particular position or decision in mind at the outset of the case before the gathering of evidence (citing Matter of  Carballeira v. Shumway, 273 A.D.2d 753, 756 where the Third Department said that: “A Law Guardian should not have a particular position or decision in mind at the outset of the case before the gathering of evidence.”) It is only appropriate for an attorney for a child to form an opinion as to what would be in the child's best interest, after such inquiry. Here, it was inappropriate for the attorney for the child to have advocated for a temporary change in custody without having conducted a complete investigation. The attorney for the child acknowledged that his application was based solely on his discussion with the father and the child's day care provider, which was located near the father's residence, and that he did not speak to the mother or the child's other day care provider closer to the mother's residence.

It remitted the matter to the Family Court for a de novo hearing and directed  the Family Court to appoint a new attorney for the child.

Omission or Redaction of Confidential Personal Information

 The Uniform Civil Rules of the Supreme and County Courts were amended to require the omission or redaction of Confidential Personal Information from papers filed with the court. See 22 NYCRR 202.5(e), relating to the omission or redaction of confidential personal information, effective January 1, 2015. Compliance with this rule is voluntary from January 1 through February 28, 2015, and mandatory thereafter. See 2014 New York Court Order (C.O. 00290), NY Order 14-0029. The rules do not apply to a matrimonial action. 22 NYCRR 202.5(e)(1). In addition, the rules do not apply in a proceeding in surrogate's court, or a proceeding pursuant to article 81 of the mental hygiene law, or as otherwise provided by rule or law or court order.

 The Civil Practice Law and Rules defines the term "matrimonial action" to include actions for a separation, for an annulment or dissolution of a marriage, for a divorce, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce and for a declaration of the validity or nullity of a marriage. The definition of “matrimonial action” in the civil practice law and rules does not include an action to set aside or declare void a prenuptial agreement, separation agreement or postnuptial agreement, an action to declare the validity of such an agreement, nor an action for a declaratory judgment with regards to, specific enforcement or breach of such an agreement. Nor does it include an action to declare the legitimacy of a child commenced in the Supreme Court, a visitation proceeding commenced pursuant to Domestic Relations Law § 72, or an action for child support. Thus, parties in such actions are required to comply with this rule.

 The parties are required to omit or redact confidential personal information (“CPI”) in papers submitted to the court for filing as defined in the rules Confidential personal information ("CPI") means: 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; the date of an individual's birth, except the year thereof; the full name of an individual known to be a minor, except the minor's initials; and. a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number, except the last four digits or letters thereof. 22 NYCRR 202.5(e)(1).
  

Divorce - Grounds - Domestic Relations Law § 170 (7) - Two Appellate Divisions Hold that Statement under Oath That the Marriage Was Irretrievably Broken for a Period of Six Months Was Sufficient to Establish Cause of Action for Divorce.

In Hoffer-Adou v. Adou, --- N.Y.S.2d ----, 2014 WL 5471501 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which sustained the validity of the parties separation agreement. It also held that contrary to the husband's contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL § 170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law (citing Townes v. Coker, 35 Misc.3d 543, 547 [Sup Ct, Nassau County 2012] ). Supreme Court's granting of the divorce did not contradict DRL § 170(7)'s requirement that "[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce." The parties' separation agreement resolved the issues of child custody and support. Their subsequent commencement in the Family Court of proceedings concerning these issues did not render the court without authority to grant the divorce, since non-compliance with/or enforcement of, the separation agreement is not an element of Domestic Relations Law §170(7).

In Trbovich v Trbovich,--- N.Y.S.2d ----, 2014 WL 6497983 (N.Y.A.D. 4 Dept.) the Appellate Division affirmed an order which denied the plaintiff's motion for summary judgment seeking a divorce pursuant to Domestic Relations Law § 170(7). It agreed with plaintiff that the relationship has broken down irretrievably for a period of at least six months opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse's sworn statement (citing Palermo v. Palermo, 35 Misc.3d 1211[A], 2011 N.Y. Slip Op 52506[U], affd for reasons stated 100 AD3d 1453; see e.g. Rinzler v. Rinzler, 97 AD3d 215, 218; A.C. v. D.R., 32 Misc.3d 293, 306), and indicated that to the extent that its decision in Tuper v. Tuper (98 AD3d 55, 59 n) suggested otherwise, it declined to follow it. Nevertheless, plaintiff was not entitled to summary judgment under Domestic Relations Law § 170(7) at this juncture of the litigation because the ancillary issues had not been resolved by the parties or determined by the court. [One judge dissented]

Family Court Act §451(1) amended

          Family Court Act §451(1) , which was amended, effective December 22, 2014,  provides that an application to modify an order of child support must be accompanied by "an affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested" in order to entitle the petitioner to a hearing on any material issues of fact.  No hearing is required if an affidavit has not been submitted even if material issues are present in the case.  The amendment removed the requirement of filing an affidavit with the petition by removing word “modify” from subdivision 1 and adding  a new subdivision 2, which provides: “ A proceeding to modify an order of support shall  be  commenced  by    the filing of a petition which shall allege facts sufficient to meet one  or more of the grounds enumerated in subdivision three of this section. Former subdivision  2 has been renumbered subdivision 3. See Laws of 2014, Ch 373, effective December 22, 2014.

Court of Appeals Establishes Rule for Third Party Discovery Subpoena

In Kapon v Koch, ___NY 3d ___, 2014 WL 1315590, 2014 N.Y. Slip Op. 02327 (2014) the Court of Appeals, in an opinion by Judge Pigott, held that where a subpoena is served by a party seeking discovery from a nonparty pursuant to CPLR 3101(a)(4), (1) the subpoenaing party must first sufficiently state the "circumstances or reasons" underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), otherwise it may be challenged for facial insufficiency, and (2) the witness, in moving to quash, must establish either that the discovery sought is "utterly irrelevant" to the action or that the "futility of the process to uncover anything legitimate is inevitable or obvious." (3) Should the witness meet this burden, the subpoenaing party must then establish that the discovery sought is "material and necessary" to the prosecution or defense of an action, i.e., that it is relevant.