Court of Appeals Rejects "adequate relevant information standard" applied by the Courts in Custody Cases

In S.L. v J.R., ___NY3d ___, 2016 NY Slip Op 04442 (2016) the Court of Appeals, in an opinion by Judge Garcia, reversed an order of the Appellate Division, which affirmed Supreme Court's decision in a custody case not to conduct an evidentiary hearing based on its determination that the court possessed "adequate relevant information to enable it to make an informed and provident determination as to the child's best interest." The Court rejected the “undefined and imprecise” adequate relevant information" standard applied by the courts below which tolerates an unacceptably-high risk of yielding custody determinations that do not conform to the best interest of a child nor adequately protect a parent whose fundamental right, the right to control the upbringing of a child, hangs in the balance. The Court observed that in rendering a final custody award without a hearing, Supreme Court appeared to rely on, among other things, hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested by either party. It pointed out that a decision regarding child custody should be based on admissible evidence, and there was no indication that a "best interest" determination was ever made based on anything more reliable than mere "information." Moreover, while Supreme Court purported to rely on allegations that were "not controverted," the affidavit filed by Mother plainly called into question or sought to explain the circumstances surrounding many of the alleged "incidents of disturbing behavior." The Court of Appeals held that these circumstances do not fit within the narrow exception to the general right to a hearing. It reaffirmed the principle that, as a general matter, custody determinations should be rendered only after a full and plenary hearing. It declined, to fashion a "one size fits all" rule mandating a hearing in every custody case statewide. However, where, as here, facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. Significantly, the Court held that “ a court opting to forego 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.” Under the circumstances of this case, a plenary hearing was necessary.

New 2016 Child Support Standards Chart Released

The 2016 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,880 and the 2016 self-support reserve is $16,038. The income cap is currently $143,000 on the combined parental income. Where the total income of both parents exceeds the combined parental income amount of $143,000 the law permits, but does not require, the use of the child support percentages in calculating the child support obligation on the income above $143,000. Click on link to download chart:https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf

New Support Forms Updated March 1, 2016 For Maintenance and Child Support Applications Available on New York Courts Website

Click on LInk to download Form

Form UD-8(1) Annual Income Worksheet

Form UD-8(2) Maintenance Guidelines Worksheet

Form UD-8(3) Child Support Worksheet

Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)

Temporary Maintenance Worksheet (for divorces started before 10/25/15)

Post-Divorce Maintenance/Child Support Worksheet

Court of Appeals Holds That Consent to Record Conversation of Child with Another Person Includes Vicarious Consent, on Behalf of a Minor Child

In People v Badalamenti, 2016 WL 1306683 (2016) the Court of Appeals held that the definition of consent, in the context of “mechanical overhearing of a conversation” pursuant to Penal Law § 250.00(2), includes vicarious consent, on behalf of a minor child. It established a “narrowly tailored” test for vicarious consent that requires a court to determine (1) that a parent or guardian had a good faith belief that the recording of a conversation to which the child was a party was necessary to serve the best interests of the child and (2) that there was an objectively reasonable basis for this belief. The Court cautioned that its holding should not be interpreted as a vehicle to attempt to avoid criminal liability for the crime of eavesdropping when a parent acts in bad faith and lacks an objectively reasonable belief that a recording is necessary in order to serve the best interests of his or her minor child. Penal Law § 250.05 and CPLR 4506 cannot be so easily circumvented. The procedural vehicles of pretrial hearings must be used to determine the admissibility of any recordings and will result in the suppression of any parent’s recording that a court determines did not meet the narrowly tailored and objective test. In making this admissibility determination, a court should consider the relevant factors, which include, but are not limited to, the parent’s motive or purpose for making the recording, the necessity of the recording to serve the child’s best interests, and the child’s age, maturity, and ability to formulate well-reasoned judgments of his or her own regarding best interests.

Second Circuit Holds that Intimate Partner Violence Is a Relevant Factor in Determining if Fees and Expenses are "Clearly Inappropriate"

In Souratgar v Fair, 2016 WL 1168733 (2d Cir., 2016) the Second Circuit reversed a judgment ordering Respondent Lee Jen Fair to pay to the prevailing petitioner-appellee, Abdollah Naghash Souratgar, $283,066.62 in expenses under the International Child Abduction Remedies Act, which directs district courts to issue such an order “unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3).  It held that the determination requires district courts to weigh relevant equitable factors, including intimate partner violence. Having reviewed all relevant equitable factors, it concluded that, because the respondent showed that the petitioner engaged in multiple, unilateral acts of intimate partner violence against her and that her removal of the child from the habitual country was related to that violence, and because there were no countervailing factors in the record in favor of the petitioner, such an award would be “clearly inappropriate.”