September 16, 2018
Recent Legislation
Laws of 2018, Chapter 218,
Amended CPLR 2305
Chapter 218 amended CPLR 2305,
effective August 24, 2018 to add a new subdivision (d) which gives counsel the
option of having trial material delivered to the attorney or self-represented
party at the return address set forth in the subpoena, rather than to the clerk
of the court. Existing subdivision 2 provides: “Any person may comply with a
subpoena duces tecum for a trial, hearing or examination by having the
requisite books, documents or things produced by a person able to identify them
and testify respecting their origin, purpose and custody.”
CPLR
2305(d) provides as follows:
(d) Subpoena
duces tecum for a trial; service of subpoena and delivery for records. Where a trial subpoena directs service of the
subpoenaed documents to the attorney or self-represented party at the return
address set forth in the subpoena, a copy of the subpoena shall be served upon
all parties simultaneously and the party receiving such subpoenaed records, in
any format, shall deliver a complete copy of such records
in the same format to all opposing counsel and self-represented parties where
applicable, forthwith.
The
amendment was effective immediately and applies to all actions
pending on or after
such effective date.
Laws of 2018, Chapter 217
added CPLR 4540-a
Chapter 217 added CPLR 4540-a effective January 1, 2019
to eliminate the authentication burden often encountered by litigants who seek
to introduce into evidence documents or other items authored or otherwise
created by an adverse party who produced those materials in the course of
pretrial disclosure.
According to the Legislative memorandum in support of the
legislation the genuineness of a document or other physical object must be
established as a prerequisite to its admissibility when the relevance of the
item depends upon its source or origin. But evidence of such authenticity
should not be required if the party who purportedly authored or otherwise created
the documents at issue has already admitted their authenticity. And if a party
has responded to a pretrial litigation demand for its documents by producing
those documents, the party has implicitly acknowledged their authenticity.
Thus, in such cases, the presentation of evidence of authenticity is a waste of
the court's time and an unnecessary burden on the proponent of the evidence.
New CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant
to article thirty- one of this chapter for material authored or otherwise
created by such party shall be presumed authentic when offered into evidence by
an adverse party. The presumption
recognized by the statute applies only to the issue of authenticity or
genuineness of the item. A party is free to assert any and all other objections
that might be pertinent in the case, such as lack of relevance or violation of
the best evidence rule. The Legislative memorandum noted that the adoption of
the proposed new CPLR 4540-a would not preclude establishing authenticity by
any other statutory or common law means. See CPLR 4543 ("Nothing in this
article prevents the proof of a fact or a writing by any method authorized by
any applicable statute or by the
rules of evidence at common
law.").
CPLR
4540-a, effective January 1, 2019 reads as follows:
Rule 4540-a.
Presumption of authenticity based on a party's production of material authored
or otherwise created by the party.
Material produced by a party in response to a demand pursuant to article
thirty-one of this chapter for material authored or otherwise created by such party
shall be presumed authentic when offered into evidence by an
adverse party. Such presumption may be rebutted by a
preponderance of evidence proving such material is not authentic, and shall not
preclude any other objection to admissibility.
Laws of 2018, Chapter 235
adds new privileged communications
Chapter 235 amended judiciary law section 498, effective
August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new
subdivision 2 that deems communications between a consumer of legal services
and a legal or lawyer referral service to be privileged, similar to the
attorney-client privilege.
Judiciary Law §498, new subdivision 2 reads as follows:
2. The communications between a member or
authorized agent of an association or society of attorneys or counselors at law
and any person, persons or
entity communicating with such member or authorized agent for the purpose of seeking or obtaining a
professional referral shall be deemed to be privileged on the same basis as the
privilege provided by law for communications between attorney and client. Such
privilege may be waived only by the person, persons or entity who has furnished
information to the association or society, its members or authorized agents.
Appellate Division, First Department
Adoption Subsidy
Should Be Considered as A Resource of The Child When Determining Child Support
In
Barbara T v Acquinetta T, --- N.Y.S.3d ----, 2018 WL 3789133, 2018 N.Y. Slip
Op. 05736 (1st Dept., 2018), a support proceeding, the Appellate
Division held that Family Court erred in determining that the Children’s Law
Center (CLC) which had been appointed as attorney for the child with no
limitations on the scope of its representation did not have standing to file
objections in Family Court. It rejected the argument that Family Court Act §
439(e) restricts the filing of objections to a “party or parties.” That section
does not prohibit children’s attorneys, where appointed, from filing or rebutting
objections to a Support Magistrate’s order. It found that the child’s attorney
had standing to file objections to the Support Magistrate’s order. CLC also had
standing to bring the appeal. The final order of a Support Magistrate is
appealable after objections have been reviewed by a judge (FCA § 439[e]). In
addition, the Court has discretion to entertain an appeal of any Family Court
order other than an order of disposition (FCA § 1112).
The child was born on December 21, 2000. In or about
2010, he was removed from his birth mother’s home and placed in non-kinship
foster care with respondent Acquinetta M. (mother or Ms. M), who thereafter
adopted him. When the adoption became final she began to receive a monthly
adoption subsidy for him, which was administered by the Administration for
Children’s Services (ACS). On December 2, 2015, the petitioner in the
proceeding, the child’s godmother, Barbara T. (guardian or Ms. T), filed a
petition for guardianship and in or about February 2016, the child began living
with her full-time. Ms. M did not contest the petition, and it was granted on
March 28, 2016. In March 2016, Ms. M advised ACS that the child was no longer
living with her and that she wished to stop receiving the subsidy. Based solely
on her request, ACS issued a notice to the mother stating that the subsidy had
been “suspended” effective April 14, 2016 at her request. On March 31, 2016,
the child’s guardian filed a petition seeking child support from Ms. M.
The Appellate Division held, inter alia, that Family
Court properly determined that an adoption subsidy should be considered as a
resource of the child when determining child support. The Court observed that
foster parents apply for the subsidy prior to adoption (18 NYCRR 421.24 [b],
[c][1]), and sign a contract with ACS (18 NYCRR 421.24[c][3]). The minimum
provisions of such contracts are set by regulation (18 NYCRR 421.24[c][3]). The
applicable regulations further provide that the written agreement “will remain
in effect until the child’s 21st birthday. No payments may be made if [ACS]
determines that the adoptive parents are no longer legally responsible for the
support of the child or the child is no longer receiving any support from such
parents. Such written agreement must state that it will be the responsibility
of the adoptive parent(s) to inform the appropriate State or local official
when they are no longer legally responsible for the child or no longer
providing any support to the child” (18 NYCRR 421.24[c][5]). Similarly, the
Social Services Law provides that, once approved, subsidy payments “shall be
made until the child’s twenty first birthday” (SSL § 453 [1][a] ) and that
payment of the subsidy may only be suspended if ACS “determines that the
adoptive parents are no longer legally responsible for the support of the child
or the child is no longer receiving any support from such parents” (SSL §
453[1][c]; see also 42 USC § 673[a][4][A][ii], [iii] ). The Appellate Division
held that Family Court erred in determining that receipt of the subsidy, once
the contract is entered into, is at the adoptive parent’s election or that the
subsidy terminates when the adoptive parent “opts” not to receive it. The mother’s claim that she was no longer
eligible to receive the subsidy once the child no longer resided with her was
contrary to the applicable statutes and regulations and the required language
of the adoption subsidy agreement.
The Appellate Division held that although the statute
does not presently permit anyone other than an adoptive parent to receive the
subsidy on the child’s behalf, there is no statutory or regulatory requirement
that the child continue to reside with the adoptive parent in order for the
subsidy to continue. Accordingly, Family Court erred when it determined that it
is “inappropriate, if not illegal, for a person to apply for and receive
adoption subsidies for a minor who is not in said person’s care.” The subsidy
may be considered in determining whether the non-custodial parent’s statutory
child support obligation is “unjust or inappropriate” (FCA § 413 [1][f]).
Adoptive parents, just like biological parents, remain legally responsible for
the support of their children until they are 21 (FCA § 413[1][a]). The adoption
subsidy (see 18 NYCRR 421.24) is not income that can be imputed to the adoptive
parent (see A.E. v. J.I.E., 179 Misc. 2d 663, 686 N.Y.S.2d 613).
However, Family Court erred in determining that a
deviation based on the subsidy would be improper because it would “force” the
mother to take steps to undo the subsidy’s suspension. Awarding child support
in the amount of the subsidy is not unlike awarding support based on a parent’s
historic earning potential, which similarly requires the parent to do what the
court has determined he or she is capable of doing based on past performance.
Family Court further erred in failing to properly consider the 10 factors set
forth in FCA § 413(1)(f) to determine whether the mother’s basic child support
obligation is unjust or inappropriate.” Considering these factors, it found
that awarding child support in at least the amount of the subsidy for so long
as the mother was eligible to receive it on the child’s behalf was an
appropriate deviation from the basic child support obligation (see Smith, 75
A.D.3d 802, 903 N.Y.S.2d 758). However,
it was not clear from the record whether the mother may obtain the subsidy
retroactive to the date on which it was suspended and remanded for further
proceedings.
To Extent Defendant Promised Plaintiff, In
Contemplation of Marriage, That She Would Raise Any Children They Had as
Vegetarians, The Promise Is Not Binding
In Kesavan v Kesavan, 162 A.D.3d 445, 78 N.Y.S.3d 345,
2018 N.Y. Slip Op. 04088 (1st Dept., 2018) in the parties parenting
agreement, the parties agreed to jointly determine all major matters with
respect to the child, including “religious choices.” The 24–page agreement did
not otherwise mention the child’s religious upbringing and made no reference at
all to dietary requirements. Although the parenting coordinator found that the
child’s diet was a day-to-day choice within the discretion of each party, the
trial court explicitly determined that the child’s diet was a religious choice,
and dictated the child’s diet by effectively prohibiting the parties from
feeding her meat, poultry or fish. The Appellate Division held that this was an
abuse of discretion (see De Arakie v. De Arakie, 172 A.D.2d 398, 399, 568
N.Y.S.2d 778 [1st Dept. 1991]). To the extent defendant promised plaintiff, in
contemplation of marriage, that she would raise any children they had as
vegetarians, the promise is not binding (Stevenot v. Stevenot, 133 A.D.2d 820,
520 N.Y.S.2d 197 [2d Dept. 1987]), particularly in view of the parenting
agreement, which omits any such understanding. Nor was there support in the
record for a finding that a vegetarian diet is in the child’s best interests.
Appellate Division, Second Department
In proceeding
pursuant to FCA § 661(a) there is no express statutory fingerprinting
requirement, or express requirement to submit documentation to OCFS.
In
Matter of A v P , 161 A.D.3d 1068, 78 N.Y.S.3d 189, 2018 N.Y. Slip Op. 03674
(2d Dept., 2018) the mother commenced a
proceeding pursuant to Family Court Act article 6 to be appointed guardian of
the child for the purpose of obtaining an order declaring that the child is
dependent on the Family Court and 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). The
mother also moved for the issuance of an order making the requisite declaration
and specific findings so as to enable the child to petition for SIJS. Family
Court denied the mother’s motion without a hearing and dismissed the
guardianship petition for “failure to prosecute,” respectively.
The Appellate Division reversed. It held that in a
proceeding such as this pursuant to Family Court Act § 661(a) for
“[g]uardianship of the person of a minor or infant,” there is no express
statutory fingerprinting requirement, or any express requirement to submit
documentation pertaining to the Office of Children and Family Services.
Further, under the circumstances of this case, the court erred in dismissing
the petition and denying the motion for “failure to prosecute” based upon the
mother’s failure to submit documentation regarding, inter alia, the child’s
enrollment in school. Since the Family Court dismissed the guardianship
petition and denied the mother’s motion without conducting a hearing or
considering the child’s best interests, it remitted the matter to the Family
Court for a hearing and a new determination thereafter of the petition and the
motion.
Second
Department Holds that cases such as Matter of Angelo O., 41 A.D.3d 605, 836
N.Y.S.2d 421 should no longer be followed. Family Court’s Determinations
Following A Permanency Hearing Must Be Made ‘In Accordance with The Best
Interests and Safety of The Child
In Matter of Victoria B, --- N.Y.S.3d ----, 2018 WL
3748220, 2018 N.Y. Slip Op. 05675 (2d Dept., 2018) after issuing the order of
fact-finding of neglect and disposition, the Family Court held a permanency
hearing. In a permanency hearing order dated August 30, 2017, the court changed
the permanency goal from reunification to placement for adoption and continued
the child’s placement in the custody of the Commissioner until the completion
of the next permanency hearing or pending further order of the court. The order
also directed the filing of a petition to terminate the father’s parental
rights.
The Appellate Division held that the father’s appeal was
academic insofar as the permanency hearing order dated August 30, 2017,
continued the child’s placement with the Commissioner. This portion of the
order had already expired. However, it concluded that the portions of the
August 30, 2017, permanency hearing order which changed the permanency goal
from reunification to placement for adoption and directed the filing of a petition
to terminate the father’s parental rights was not academic. It agreed with the
First and Third Departments that since the permanency goal was changed so as to
alter the objectives to be sought by the petitioner in the course of future
permanency proceedings from working toward reunification to working toward
permanent placement and termination of parental rights, any new orders would be
the direct result of the order appealed from, and the issue of whether the
order appealed from was proper will continue to affect the father’s rights (see
Matter of Jacelyn TT. [Tonia TT. —Carlton TT.], 80 A.D.3d 1119, 1120, 915
N.Y.S.2d 732; see also Matter of Justyce HH. [Andrew II.] 136 A.D.3d 1181, 26
N.Y.S.3d 376; accord Matter of Alexander L. [Andrea L.], 109 A.D.3d 767, 972
N.Y.S.2d 229). To the extent that cases such as Matter of Angelo O., 41 A.D.3d
605, 836 N.Y.S.2d 421 are to the contrary, they should no longer be followed.
In affirming the order upon its review, the Appellate
Division observed that Article 10–A “establishes a system of ‘permanency
hearings’ for children who have been removed from parental custody”. The
hearings are “scheduled at six-month intervals” (see Family Ct Act §
1089[a][3]). “At the conclusion of each 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”. Permissible permanency
goals include returning the child to a parent or placing the child for adoption
(Family Ct Act § 1089[d][2][i]). “At a permanency hearing, the petitioner bears
the burden of establishing the appropriateness of a permanency goal, or a goal
change, by a preponderance of the evidence” The Family Court’s determinations
following a permanency hearing “must be 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’”
Appellate Division, Fourth Department
Family Court
Does Not Have Authority to Compel Child to Participate in Permanency Hearing
When Child Has Waived Right to Participate Following Consultation with Attorney
In
Matter of Shawn S, 163 A.D.3d 31, 77 N.Y.S.3d 824, 2018 N.Y. Slip Op.
042081(4th Dept., 2018), the Family Court, directed 14-year-old child to be
present for any permanency hearing, despite the child’s waiver of right to
participate in hearing. The Appellate Division reversed. It held that the
Family Court does not have the authority to compel a child to participate in a
permanency hearing when that child has waived his or her right to participate
following consultation with his or her attorney (see Family Ct Act § 1090–a
[a][2]). The question was one of statutory interpretation. Here, the statutory
language was clear and unambiguous. Although the permanency hearing must
include “an age appropriate consultation with the child” (Family Ct Act §
1090–a [a][1]), that requirement may not “be construed to compel a child who
does not wish to participate in his or her permanency hearing to do so” (Family
Court act§ 1090–a [g]). The choice belongs to the child. “A child age fourteen and older shall be
permitted to participate in person in all or any portion of his or her permanency
hearing in which he or she chooses to participate” (§ 1090–a [b][1]). Moreover,
“a child who has chosen to participate in his or her permanency hearing shall
choose the manner in which he or she shall participate, which may include
participation in person, by telephone or available electronic means, or the
issuance of a written statement to the court” (§ 1090–a [c]). Although the
court may limit the participation of a child under the age of 14 based on the
best interests of the child (see § 1090–a [a][3]; [b][2] ), the court lacks the
authority to compel the participation of a child who has waived his or her
right to participate in a permanency hearing after consultation with his or her
attorney (see § 1090–a [a][2]; [g] ).
September 1, 2018
Recent Legislation
Laws
of 2018, Chapter 218, Amended CPLR 2305
Chapter 218 amended CPLR 2305, effective August 24, 2018 to add a new
subdivision (d) which gives counsel the option of having trial material
delivered to the attorney or self-represented party at the return address set forth
in the subpoena, rather than to the clerk of the court. Existing subdivision 2
provides: “Any person may comply with a subpoena duces tecum for a trial,
hearing or examination by having the requisite books, documents or things
produced by a person able to identify them and testify respecting their origin,
purpose and custody.”
CPLR 2305(d) provides as follows:
(d) Subpoena duces tecum for a trial; service of subpoena
and delivery for records. Where a trial
subpoena directs service of the subpoenaed documents to the attorney or
self-represented party at the return address set forth in the subpoena, a copy
of the subpoena shall be served upon all parties simultaneously and the party
receiving such subpoenaed records, in any format, shall deliver a complete copy
of such records in the same format to all
opposing counsel and self-represented parties where applicable, forthwith.
The amendment was effective immediately and
applies to all actions
pending on or after such effective date.
Laws
of 2018, Chapter 217 added CPLR 4540-a
Chapter 217 added CPLR 4540-a effective January 1, 2019
to eliminate the authentication burden often encountered by litigants who seek
to introduce into evidence documents or other items authored or otherwise
created by an adverse party who produced those materials in the course of
pretrial disclosure.
According to the Legislative memorandum in support of the
legislation the genuineness of a document or other physical object must be established
as a prerequisite to its admissibility when the relevance of the item depends
upon its source or origin. But evidence of such authenticity should not be
required if the party who purportedly authored or otherwise created the
documents at issue has already admitted their authenticity. And if a party has
responded to a pretrial litigation demand for its documents by producing those
documents, the party has implicitly acknowledged their authenticity. Thus, in
such cases, the presentation of evidence of authenticity is a waste of the
court's time and an unnecessary burden on the proponent of the evidence.
New CPLR 4540-a creates a rebuttable presumption that
material produced by a party in response to a demand pursuant to article
thirty- one of this chapter for material authored or otherwise created by such
party shall be presumed authentic when offered into evidence by an adverse
party. The presumption recognized by the statute applies only to the issue of
authenticity or genuineness of the item. A party is free to assert any and all
other objections that might be pertinent in the case, such as lack of relevance
or violation of the best evidence rule. The Legislative memorandum noted that
the adoption of the proposed new CPLR 4540-a would not preclude establishing
authenticity by any other statutory or common law means. See CPLR 4543
("Nothing in this article prevents the proof of a fact or a writing by any
method authorized by any applicable statute or by the
rules of evidence at common
law.").
CPLR 4540-a, effective January 1, 2019 reads as follows:
Rule 4540-a. Presumption of authenticity based
on a party's production of material authored or otherwise created by the
party. Material produced by a party in
response to a demand pursuant to article thirty-one of this chapter for
material authored or otherwise created by such party shall be presumed
authentic when offered into evidence by an
adverse party. Such
presumption may be rebutted by a preponderance of evidence proving such
material is not authentic, and shall not preclude any other objection to
admissibility.
Laws
of 2018, Chapter 235 adds new privileged communications
Chapter 235 amended judiciary law section 498, effective
August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new
subdivision 2 that deems communications between a
consumer of legal services and a legal or lawyer referral service to be
privileged, similar to the attorney-client privilege.
Judiciary Law §498, new subdivision 2 reads as follows:
2. The communications between a member or
authorized agent of an association or society of attorneys or counselors at law
and any person, persons or
entity communicating with such member or authorized agent for the purpose of seeking or obtaining a
professional referral shall be deemed to be privileged on the same basis as the
privilege provided by law for communications between attorney and client. Such
privilege may be waived only by the person, persons or entity who has furnished
information to the association or society, its members or authorized agents.
Appellate Division,
First Department
Adoption Subsidy Should Be Considered as A Resource of The Child When
Determining Child Support
In Barbara T v Acquinetta T, ---
N.Y.S.3d ----, 2018 WL 3789133, 2018 N.Y. Slip Op. 05736 (1st Dept.,
2018), a support proceeding, the Appellate Division held that Family Court
erred in determining that the Children’s Law Center (CLC) which had been
appointed as attorney for the child with no limitations on the scope of its
representation did not have standing to file objections in Family Court. It
rejected the argument that Family Court Act § 439(e) restricts the filing of
objections to a “party or parties.” That section does not prohibit children’s
attorneys, where appointed, from filing or rebutting objections to a Support
Magistrate’s order. It found that the child’s attorney had standing to file
objections to the Support Magistrate’s order. CLC also had standing to bring
the appeal. The final order of a Support Magistrate is appealable after
objections have been reviewed by a judge (FCA § 439[e]). In addition, the Court
has discretion to entertain an appeal of any Family Court order other than an
order of disposition (FCA § 1112).
The child was born on
December 21, 2000. In or about 2010, he was removed from his birth mother’s
home and placed in non-kinship foster care with respondent Acquinetta M.
(mother or Ms. M), who thereafter adopted him. When the adoption became final
she began to receive a monthly adoption subsidy for him, which was administered
by the Administration for Children’s Services (ACS). On December 2, 2015, the
petitioner in the proceeding, the child’s godmother, Barbara T. (guardian or
Ms. T), filed a petition for guardianship and in or about February 2016, the
child began living with her full-time. Ms. M did not contest the petition, and
it was granted on March 28, 2016. In March 2016, Ms. M advised ACS that the
child was no longer living with her and that she wished to stop receiving the
subsidy. Based solely on her request, ACS issued a notice to the mother stating
that the subsidy had been “suspended” effective April 14, 2016 at her request.
On March 31, 2016, the child’s guardian filed a petition seeking child support
from Ms. M.
The Appellate Division
held, inter alia, that Family Court properly determined that an adoption
subsidy should be considered as a resource of the child when determining child
support. The Court observed that foster parents apply for the subsidy prior to
adoption (18 NYCRR 421.24 [b], [c][1]), and sign a contract with ACS (18 NYCRR
421.24[c][3]). The minimum provisions of such contracts are set by regulation
(18 NYCRR 421.24[c][3]). The applicable regulations further provide that the
written agreement “will remain in effect until the child’s 21st birthday. No
payments may be made if [ACS] determines that the adoptive parents are no
longer legally responsible for the support of the child or the child is no
longer receiving any support from such parents. Such written agreement must
state that it will be the responsibility of the adoptive parent(s) to inform
the appropriate State or local official when they are no longer legally
responsible for the child or no longer providing any support to the child” (18
NYCRR 421.24[c][5]). Similarly, the Social Services Law provides that, once
approved, subsidy payments “shall be made until the child’s twenty first
birthday” (SSL § 453 [1][a] ) and that payment of the subsidy may only be suspended
if ACS “determines that the adoptive parents are no longer legally responsible
for the support of the child or the child is no longer receiving any support
from such parents” (SSL § 453[1][c]; see also 42 USC § 673[a][4][A][ii], [iii]
). The Appellate Division held that Family Court erred in determining that
receipt of the subsidy, once the contract is entered into, is at the adoptive
parent’s election or that the subsidy terminates when the adoptive parent
“opts” not to receive it. The mother’s claim
that she was no longer eligible to receive the subsidy once the child no longer
resided with her was contrary to the applicable statutes and regulations and
the required language of the adoption subsidy agreement.
The Appellate Division
held that although the statute does not presently permit anyone other than an
adoptive parent to receive the subsidy on the child’s behalf, there is no
statutory or regulatory requirement that the child continue to reside with the
adoptive parent in order for the subsidy to continue. Accordingly, Family Court
erred when it determined that it is “inappropriate, if not illegal, for a
person to apply for and receive adoption subsidies for a minor who is not in
said person’s care.” The subsidy may be considered in determining whether the
non-custodial parent’s statutory child support obligation is “unjust or
inappropriate” (FCA § 413 [1][f]). Adoptive parents, just like biological
parents, remain legally responsible for the support of their children until
they are 21 (FCA § 413[1][a]). The adoption subsidy (see 18 NYCRR 421.24) is
not income that can be imputed to the adoptive parent (see A.E. v. J.I.E., 179
Misc. 2d 663, 686 N.Y.S.2d 613).
However, Family Court
erred in determining that a deviation based on the subsidy would be improper
because it would “force” the mother to take steps to undo the subsidy’s
suspension. Awarding child support in the amount of the subsidy is not unlike
awarding support based on a parent’s historic earning potential, which
similarly requires the parent to do what the court has determined he or she is
capable of doing based on past performance. Family Court further erred in
failing to properly consider the 10 factors set forth in FCA § 413(1)(f) to
determine whether the mother’s basic child support obligation is unjust or
inappropriate.” Considering these factors, it found that awarding child support
in at least the amount of the subsidy for so long as the mother was eligible to
receive it on the child’s behalf was an appropriate deviation from the basic
child support obligation (see Smith, 75 A.D.3d 802, 903 N.Y.S.2d 758). However, it was not clear from the record
whether the mother may obtain the subsidy retroactive to the date on which it
was suspended and remanded for further proceedings.
To Extent Defendant
Promised Plaintiff, In Contemplation of Marriage, That She Would Raise Any
Children They Had as Vegetarians, The Promise Is Not Binding
In
Kesavan v Kesavan, 162 A.D.3d 445, 78 N.Y.S.3d 345, 2018 N.Y. Slip Op. 04088 (1st
Dept., 2018) in the parties parenting agreement, the parties agreed to jointly
determine all major matters with respect to the child, including “religious
choices.” The 24–page agreement did not otherwise mention the child’s religious
upbringing and made no reference at all to dietary requirements. Although the
parenting coordinator found that the child’s diet was a day-to-day choice
within the discretion of each party, the trial court explicitly determined that
the child’s diet was a religious choice, and dictated the child’s diet by
effectively prohibiting the parties from feeding her meat, poultry or fish. The
Appellate Division held that this was an abuse of discretion (see De Arakie v.
De Arakie, 172 A.D.2d 398, 399, 568 N.Y.S.2d 778 [1st Dept. 1991]). To the
extent defendant promised plaintiff, in contemplation of marriage, that she
would raise any children they had as vegetarians, the promise is not binding
(Stevenot v. Stevenot, 133 A.D.2d 820, 520 N.Y.S.2d 197 [2d Dept. 1987]), particularly
in view of the parenting agreement, which omits any such understanding. Nor was
there support in the record for a finding that a vegetarian diet is in the
child’s best interests.
Appellate Division,
Second Department
In proceeding pursuant to FCA § 661(a) there is no express statutory
fingerprinting requirement, or express requirement to submit documentation to
OCFS.
In Matter of A v P , 161 A.D.3d
1068, 78 N.Y.S.3d 189, 2018 N.Y. Slip Op. 03674 (2d Dept., 2018) the mother commenced a proceeding pursuant
to Family Court Act article 6 to be appointed guardian of the child for the
purpose of obtaining an order declaring that the child is dependent on the
Family Court and 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). The mother also
moved for the issuance of an order making the requisite declaration and
specific findings so as to enable the child to petition for SIJS. Family Court
denied the mother’s motion without a hearing and dismissed the guardianship
petition for “failure to prosecute,” respectively.
The Appellate Division
reversed. It held that in a proceeding such as this pursuant to Family Court
Act § 661(a) for “[g]uardianship of the person of a minor or infant,” there is
no express statutory fingerprinting requirement, or any express requirement to
submit documentation pertaining to the Office of Children and Family Services.
Further, under the circumstances of this case, the court erred in dismissing
the petition and denying the motion for “failure to prosecute” based upon the
mother’s failure to submit documentation regarding, inter alia, the child’s
enrollment in school. Since the Family Court dismissed the guardianship
petition and denied the mother’s motion without conducting a hearing or
considering the child’s best interests, it remitted the matter to the Family
Court for a hearing and a new determination thereafter of the petition and the
motion.
Second Department Holds that cases such as Matter of Angelo O., 41
A.D.3d 605, 836 N.Y.S.2d 421 should no longer be followed. Family Court’s
Determinations Following A Permanency Hearing Must Be Made ‘In Accordance with
The Best Interests and Safety of The Child
In Matter of Victoria
B, --- N.Y.S.3d ----, 2018 WL 3748220, 2018 N.Y. Slip Op. 05675 (2d Dept.,
2018) after issuing the order of fact-finding of neglect and disposition, the
Family Court held a permanency hearing. In a permanency hearing order dated
August 30, 2017, the court changed the permanency goal from reunification to
placement for adoption and continued the child’s placement in the custody of
the Commissioner until the completion of the next permanency hearing or pending
further order of the court. The order also directed the filing of a petition to
terminate the father’s parental rights.
The Appellate Division
held that the father’s appeal was academic insofar as the permanency hearing
order dated August 30, 2017, continued the child’s placement with the
Commissioner. This portion of the order had already expired. However, it
concluded that the portions of the August 30, 2017, permanency hearing order
which changed the permanency goal from reunification to placement for adoption
and directed the filing of a petition to terminate the father’s parental rights
was not academic. It agreed with the First and Third Departments that since the
permanency goal was changed so as to alter the objectives to be sought by the
petitioner in the course of future permanency proceedings from working toward
reunification to working toward permanent placement and termination of parental
rights, any new orders would be the direct result of the order appealed from,
and the issue of whether the order appealed from was proper will continue to
affect the father’s rights (see Matter of Jacelyn TT. [Tonia TT. —Carlton TT.],
80 A.D.3d 1119, 1120, 915 N.Y.S.2d 732; see also Matter of Justyce HH. [Andrew
II.] 136 A.D.3d 1181, 26 N.Y.S.3d 376; accord Matter of Alexander L. [Andrea
L.], 109 A.D.3d 767, 972 N.Y.S.2d 229). To the extent that cases such as Matter
of Angelo O., 41 A.D.3d 605, 836 N.Y.S.2d 421 are to the contrary, they should
no longer be followed.
In affirming the order
upon its review, the Appellate Division observed that Article 10–A “establishes
a system of ‘permanency hearings’ for children who have been removed from
parental custody”. The hearings are “scheduled at six-month intervals” (see Family
Ct Act § 1089[a][3]). “At the conclusion of each 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”. Permissible
permanency goals include returning the child to a parent or placing the child
for adoption (Family Ct Act § 1089[d][2][i]). “At a permanency hearing, the
petitioner bears the burden of establishing the appropriateness of a permanency
goal, or a goal change, by a preponderance of the evidence” The Family Court’s
determinations following a permanency hearing “must be 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’”
Appellate Division,
Fourth Department
Family Court Does Not Have Authority to Compel Child to Participate in
Permanency Hearing When Child Has Waived Right to Participate Following
Consultation with Attorney
In Matter of Shawn S, 163 A.D.3d 31,
77 N.Y.S.3d 824, 2018 N.Y. Slip Op. 042081(4th Dept., 2018), the Family Court,
directed 14-year-old child to be present for any permanency hearing, despite
the child’s waiver of right to participate in hearing. The Appellate Division
reversed. It held that the Family Court does not have the authority to compel a
child to participate in a permanency hearing when that child has waived his or
her right to participate following consultation with his or her attorney (see
Family Ct Act § 1090–a [a][2]). The question was one of statutory
interpretation. Here, the statutory language was clear and unambiguous.
Although the permanency hearing must include “an age appropriate consultation
with the child” (Family Ct Act § 1090–a [a][1]), that requirement may not “be
construed to compel a child who does not wish to participate in his or her
permanency hearing to do so” (Family Court act§ 1090–a [g]). The choice belongs
to the child. “A child age fourteen and
older shall be permitted to participate in person in all or any portion of his
or her permanency hearing in which he or she chooses to participate” (§ 1090–a
[b][1]). Moreover, “a child who has chosen to participate in his or her
permanency hearing shall choose the manner in which he or she shall participate,
which may include participation in person, by telephone or available electronic
means, or the issuance of a written statement to the court” (§ 1090–a [c]).
Although the court may limit the participation of a child under the age of 14
based on the best interests of the child (see § 1090–a [a][3]; [b][2] ), the
court lacks the authority to compel the participation of a child who has waived
his or her right to participate in a permanency hearing after consultation with
his or her attorney (see § 1090–a [a][2]; [g] ).
August 16, 2018
Appellate Division,
Second Department
Second Department
Holds That Request at Trial for Judgment for Arrears of Temporary Maintenance
Must Be Made on Notice
In
Cravo v Diegel, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3559159, 2018 N.Y. Slip Op. 05447
(2d Dept., 2018) in affirming the judgment of divorce, the Appellate Division
held, inter alia, that Supreme Court did not improvidently exercise its
discretion in failing to the husband him maintenance arrears accruing under a
pendente lite order dated December 29, 2014, because he failed to make an
application for such an award. A party to a matrimonial action may make an
application for a judgment directing payment of maintenance 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 maintenance arrears must be made Aupon such notice to the spouse or other person as the
court may direct@ (Domestic Relations Law ' 244). Here, the defendant made no such application (see
Domestic Relations Law ' 244; Matter of Fixman v. Fixman, 31 A.D.3d 637, 637B638,
819 N.Y.S.2d 770).
Appellate Division,
Fourth Department
Fourth Department
Holds That Comity Requires Recognition of Property Rights Arising from Civil
Union in Vermont
In O=Reilly- Morshead v O=Reilly-Morshead, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3567116, 2018
N.Y. Slip Op. 05419 (4th Dept., 2018) Plaintiff and defendant were
residents of New York who, on June 9, 2003, traveled to Vermont and entered
into a civil union under the laws of that state. On June 9, 2006, they were
married in Canada. In 2014, plaintiff commenced this action seeking dissolution
of the marriage and defendant counterclaimed for, inter alia, dissolution of
the civil union and the equitable distribution of property acquired during the
civil union. The Appellate Division held that Supreme Court properly declined to
treat the civil union as equivalent to a marriage for the purposes of the
equitable distribution of property under the Domestic Relations Law. It
observed that when the New York State Legislature enacted the Marriage Equality
Act, it granted same‑sex couples the right to marry, but it did not grant those
couples who had entered into civil unions the same rights as those who marry.
The Domestic Relations Law provides that A[a] marriage that is otherwise valid shall be valid
regardless of whether the parties to the marriage are of the same or different
sex@ (DRL' 10Ba [1]). While the word Amarriage@ is not defined in the Domestic Relations Law, the
disposition of property in a matrimonial action is dependent on whether that
property is A[m]arital property@ (DRL' 236[B][5][c]). The Domestic Relations Law defines A >marital
property= @ as property acquired Aduring the marriage@ (DRL' 236[B][1][c]) and, as relevant here, Aseparate
property@ is defined as Aproperty acquired before marriage@ ('
236[B][1][d][1]). The parties were married on June 9, 2006, and thus the
property at issue was acquired prior to the parties=
marriage.
However,
the Appellate Division concluded that the court erred in denying defendant=s
request to apply principles of comity to the civil union and recognize that
both parties have rights with respect to property acquired during the civil
union. In Debra H. v. Janice R., 14 N.Y.3d 576, 904 N.Y.S.2d 263, 930 N.E.2d
184 (2010) the Court of Appeals left open the question whether New York should
extend comity to the civil union for purposes other than parentage. The
Appellate Division concluded that comity does require the recognition of
property rights arising from a civil union in Vermont. One of the consequences
of the parties= civil union in Vermont was that they would receive Aall the
same benefits, protections, and responsibilities under law ... as are granted
to spouses in a civil marriage@ (Vt. Stat. Ann, tit. 15, ' 1204[a]), including rights with respect to Adivorce
... and property division@ (' 1204 [d]; see DeLeonardis v. Page, 188 Vt. 94, 101, 998
A.2d 1072, 1076 [2010]). That rule is consistent with the public policy of New
York, inasmuch as the laws of Vermont and New York both Apredicate
[] [property rights] on the objective evidence of a formal legal relationship,@ i.e.,
legal union between the parties. In other words, under the laws of both Vermont
and New York, property acquired during a legal union of two people‑in Vermont a
civil union or marriage, and in New York, a marriage‑is subject to equitable
distribution under the governing statutes of the state. The relevant New York
and Vermont statutes both provide similar factors for the court to consider
when determining the equitable distribution of the property. It concluded that,
under the principles of comity, the property acquired during the civil union
and prior to the marriage is subject to equitable distribution, and such
property will therefore be equitably distributed after trial, along with the
property acquired during the marriage.
Terms of agreement
are to be interpreted consistently corresponding statutory scheme
In
Burns v Burns, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3569023, 2018 N.Y. Slip Op. 05411
(4th
Dept., 2018) the parties settlement agreement pursuant to Domestic Relations
Law ' 236(B)(3) which was incorporated into their judgment of
divorce provided that A[a]ll
matters affecting interpretation of this [a]greement and the rights of the
parties [t]hereto shall be governed by the laws of the State of New York.@ The
agreement obligated the husband to pay Arehabilitative maintenance@ to the wife pursuant to a schedule, until November 30,
2010 but was silent regarding the
effect, if any, of the wife=s remarriage upon the husband=s
maintenance obligation. The wife remarried in December 2015. In April 2016, the
husband emailed the wife to inform her that he would stop paying maintenance as
a result of her remarriage. The wife
then moved to, inter alia, recover a monetary judgment for the amount
outstanding and hold the husband in contempt for ending the maintenance
payments. The Appellate Division rejected the wiles=
argument that Aa plain
reading of ... the agreement [] leads to only one conclusion: [the husband=s]
rehabilitative maintenance obligation survives [her] remarriage.@because
A[o]ther
than November 30, 2020, no termination events are identified in the agreement.
The
Appellate Division held that when parties enter into an agreement authorized by
or related to a particular statutory scheme, the courts will presumeCabsent
something to the contraryCthat the terms of the agreement are to be interpreted
consistently with the corresponding statutory scheme (Dolman v. United States
Trust Co. of N.Y., 2 N.Y.2d 110, 116, 157 N.Y.S.2d 537, 138 N.E.2d 784 [1956]).
The statutory scheme corresponding to the agreement in this case is Domestic
Relations Law ' 236, which includes the following caveat: any
maintenance award Ashall terminate upon the death of either party or upon
the payee=s valid or invalid marriage@. As
thus defined, the concept of maintenance is unequivocally limited to payments
made to an unmarried ex‑spouse. And unless the parties contract otherwise, the
statutory limitation is incorporated directly into a divorce settlement
agreement Aas though it were expressed or referred to therein@. It
rejected the wife=s argument that the statutory definition of maintenance
embodied in Domestic Relations Law ' 236(B)(1)(a) is irrelevant simply because the parties
chose to settle the terms of their divorce in a written agreement. The concept of Amaintenance,@, is
explicitly limited by statute to payments made to an unmarried payee.
August 1, 2018
Appellate Division,
Second Department
Party Moving for
Attorney=s Fees Must Make Prima Facie Showing of Substantial
Compliance With 22 NYCRR 1400.2 And 1400.3
In
Matter of Tarpey v Tarpey, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3371501, 2018 N.Y. Slip
Op. 05178 (2d Dept., 2018) the Appellate Division reversed an order which granted
the mother=s petition for an upward modification of child support
and attorneys fees. It pointed out that an attorney may recover fees from a
client or the client=s spouse only if the attorney has substantially complied
with 22 NYCRR 1400.2 and 1400.3, which, inter alia, require counsel to provide
the client with Awritten, itemized bills at least every 60 days@
(Gahagan v. Gahagan, 51 A.D.3d 863, 864, 859 N.Y.S.2d 218). The party moving
for attorney=s fees must make a prima facie showing of substantial compliance
with 22 NYCRR 1400.2 and 1400.3 (see Gottlieb v. Gottlieb, 101 A.D.3d 678, 679,
957 N.Y.S.2d 132). It held that the Support Magistrate erred in awarding the
mother attorney=s fees, as the mother did not demonstrate, prima facie,
substantial compliance with 22 NYCRR 1400.2 or 1400.3. The mother failed to
submit appropriate evidence in support of her application for attorney=s fees
Recording Call Placed
on Speaker at Request of Party to Conversation Is Not Eavesdropping
In
Perlman v Perlman, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3371321, 2018 N.Y. Slip Op. 05212
(2d Dept., 2018) the Appellate Division, inter alai, affirmed an order denying
defendant=s motion to preclude the plaintiff from offering a tape
recording of a telephone call into evidence at trial. Generally, A[t]he
contents of any overheard or recorded communication, conversation or
discussion, or evidence derived therefrom, which has been obtained by conduct
constituting the crime of eavesdropping, as defined by section 250.05 of the
penal law, may not be received in evidence in any trial, hearing or proceeding
before any court or grand jury@ (CPLR 4506[1]). AA person is guilty of eavesdropping when he unlawfully
engages in wiretapping, mechanical overhearing of a conversation, or
intercepting or accessing of an electronic communication@ (Penal
Law ' 250.05). It found
that the plaintiff=s actions in recording a telephone call, which apparently
took place between the defendant and the children after the defendant requested
that the children place the call on speaker so that the plaintiff could hear
what he had to say, did not constitute the crime of eavesdropping. The
plaintiff=s actions did not amount to Amechanical
overhearing of a conversation [,]@ as she was present at, and a party to, the conversation
at issue (Penal Law ' 250.00[2]; cf. People v. Badalamenti, 27 N.Y.3d 423,
432, 34 N.Y.S.3d 360, 54 N.E.3d 32). Thus, the recordings of that conversation
were admissible pursuant to CPLR 4506(1) (see CPLR 4506[1]; Penal Law ''
250.05, 250.00[1], [2]).
Provision of
Postnuptial Agreement Waiving Right to Seek Attorney=s Fee
Held Unenforceable
In
Maddaloni v Maddaloni, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3450169, 2018 N.Y. Slip Op.
05295 (2d Dept., 2018) the Appellate Division affirmed an order which, among
other things, granted the plaintiffs motion for post judgment and interim
appellate counsel fees. The parties= 1988 postnuptial agreement provided that in the event
that either of the parties was unable or unwilling to continue the marriage
arrangement, neither of the parties would be entitled to counsel fees. It
observed that A[t]he
determination as to whether or not a provision waiving the right to seek an
award of an attorney=s fee is enforceable must be made on a case‑by‑case basis
after weighing the competing public policy interests in light of all relevant
facts and circumstances both at the time the agreement was entered and at the
time it is to be enforced@ (Kessler v. Kessler, 33 A.D.3d 42, 48, 818 N.Y.S.2d 571;
see Abramson v. Gavares, 109 A.D.3d 849, 851, 971 N.Y.S.2d 538). Here, based on the disparity between the
financial positions of the parties, and all of the circumstances of this matter,
the provision of the parties= postnuptial
agreement waiving the right to seek an award of an attorney=s fee was
unenforceable.
Appellate Division,
Third Department
Net Loss on Rental
Property Excluded from Income for Child Support Calculation
In
DeSouza v DeSouza, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3383635, 2018 N.Y. Slip Op. 05237
(3d Dept., 2018) the Appellate Division held that where a net loss is sustained
on rental property for a given year, such rental income is properly excluded from
the calculation of the parties= total gross income for child support purposes (see
Domestic Relations Law ' 240[1Bb] [b][5][ii]).
July 16, 2018
Rules of Professional
Conduct amended effective June 1. 2018
The
Judicial Departments of the Appellate Division of the New York Slate Supreme
Court, amended Title 22 of the Official Compilation of Code, Rules, and
Regulations of the State of New York Part 1200 (Rules of Professional Conduct,
Rule 8.4[g) and Part 1210 (Statement of Client's Rights) to prohibit
discrimination in the practice of law on the basis. of, gender identity. or gender expression, as follows:
Part 1200. Attorney
Rules of Professional Conduct
•••
Rule 8.4. Misconduct
A lawyer or law firm shall
not:
•••
(g) unlawfully
discriminate in the practice of law, including in hiring, promoting or
otherwise determining conditions of employment on the basis. of age, race,
creed, color, national origin, sex, disability, marital status, sexual
orientation, gender identity. or
gender
expression. Where there is a
tribunal with jurisdiction to hear a complaint, if timely brought, other than a Departmental Disciplinary Committee, a
complaint based on unlawful discrimination shall be brought before such tribunal
in the first instance. A certified copy of a determination by such a tribunal,
which has become final and enforceable and as to which the right to judicial or
appellate review has been exhausted, finding that the lawyer has engaged in an
unlawful discriminatory practice shall constitute prima facie evidence of
professional misconduct in a disciplinary proceeding.
Part 1210. Statement
of Client’s Rights
§ 1210.1. Posting
Every attorney with
an office located in! he State of New York shall insure that there is posted in
that office, in a manner visible to clients of the attorney, a statement of
client's rights in the form set forth below. Attorneys in offices that provide
legal services without fee may delete from the statement those provisions
dealing with fees. The statement
shall contain the
following:
STATEMENT Of CLIENT'
S RIGHTS •••
10. You may not be
refused representation on the basis of race. creed. color. religion, sex,
sexual orientation, gender identity,
gender expression, age, national origin, or disability.
Statewide Practice
Rules of the Appellate Division Amended and Local Rules Adopted
22 NYCRR Part 1250,
Statewide Practice
Rules of the Appellate Division were adopted by the four Judicial Departments of the Appellate
Division on December 12, 2017 and revised by joint order on June 29, 2018, to
take effect on September
17, 2018. See: Joint Order of the Departments of the New York State
Supreme Court, Appellate Division
22 NYCRR Part 1250
applies to all matters that are commenced in the Appellate Division, or in
which a notice of appeal to the Appellate Division is filed, on or after September
17, 2018. Unless otherwise ordered by the Court upon a showing that application
of part 1250 to the matter would result in substantial prejudice to a party or
would be manifestly unjust or impracticable under the circumstances, part 1250
applies to each matter pending in the Appellate Division on September 17, 2018.
Due to
the differences inherent in practice among the four departments of the
Appellate Division, each department has also adopted a set of local rules.
The Appellate Divison, First Judicial Department rescinded 22
NYCRR Part 600 and adopted a new 22 NYCRR Part 600 to supplement the statewide
Practice Rules of the Appellate Division, effective on September 17, 2018.
The Appellate Division, Second Judicial Department rescinded 22 NYCRR
Part 670 and adopted a new 22
NYCRR Part 670, effective September 17, 2018.
The Appellate Division,
Third Department rescinded 22 NYCRR Part 850 and adopted a new 22
NYCRR Part 850 effective September 17, 2018.
The Appellate Division,
Fourth Department repealed in its entirety 22 NYCRR Part 1000, governing
practice before the Court and enacted a new 22 NYCRR Part 1000, effective
September 17, 2018.
Appellate Division, Second Department
Mother Did Not
Consent to Reference Merely by Participating in The Proceeding Without
Requesting Judge to Hear Case
In
Matter of Rose v Simon, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3131427, 2018 N.Y. Slip Op.
04736 (2d Dept.., 2018) the father filed a petition for sole physical custody
of the child. During the pendency of the custody proceeding, the mother filed a
family offense petition against the father. The matters were heard before a
Court Attorney Referee, who, after a consolidated hearing, granted the father=s
petition and dismissed the mother=s family offense petition. The Appellate Division
observed that a referee derives authority from an order of reference by the
court (see CPLR 4311, 4317). The order of reference did not authorize the Court
Attorney Referee to hear and report or to hear and determine a contested family
offense petition. The Court Attorney Referee therefore lacked jurisdiction to
dismiss the mother=s family offense petition.
With
respect to the determination of custody, the order of reference recited that,
upon the parties= stipulation, a court attorney referee is authorized to
hear and determine the parties= rights to custody of and visitation with the child,
including the determination of motions and temporary orders of custody. A
review of the record revealed that the parties had not stipulated to the
reference in the manner prescribed by CPLR 2104, and, absent such stipulation,
the Court Attorney Referee had the power only to hear and report her findings.
It further found that the mother did not consent to the reference merely by
participating in the proceeding without expressing her desire to have the
matter tried before a judge. The order of reference was therefore deemed an
order to hear and report. Thus, the Court Attorney Referee had no jurisdiction
to determine, but only to hear and report, with respect to the parties=
respective rights of custody and visitation. The portion of the order, which
determined custody and visitation, was deemed a report (see CPLR 4320[b]), and
the custody matter was remitted for further proceedings pursuant to CPLR 4403
before a judge of the Family Court.
Attorney Sanctioned
for Submissions Filled with Half Truths, Distortions of Facts, Facts Taken Out
of Context, And Omissions of Material Facts and Relevant Decisions
In
Matter of Ermini v Vittori, --- N.Y.S.3d ----, 2018 WL 3295635, 2018 N.Y. Slip
Op. 05038 (2d Dept., 2018) after Family Court, issued a final order of
protection in favor of the mother and the children and against the father, the
attorney for the children moved pursuant to Family Court Act § 842 to extend
that order of protection. The father cross-moved, in effect, to enforce certain
purported orders of an Italian Court pertaining to visitation, and to remove
the attorney for the children. The attorney for the children cross-moved, inter
alia, pursuant to 22 NYCRR 130–1.1 for an award of an attorney’s fee. The
mother’s attorney made an application pursuant to 22 NYCRR 130–1.1 for an award
of an attorney’s fee. Family Court, inter alia, granted the cross motion of the
attorney for the children, and the separate application of the mother’s
attorney, pursuant to 22 NYCRR 130–1.1 for an award of attorneys’ fees to the
extent of directing the father’s attorney, to pay the sum of $2,000 to each
attorney. On the issue of attorney’s fees pursuant to 22 NYCRR 130–1.1, the
court concluded, in part, that the father’s “submissions are filled with half
truths, distortions of facts, facts taken out of context, and most
distressingly, omissions of material facts and relevant decisions” and that
most of the father’s “submissions were an attempt to revise and re-litigate
facts that were already decided.” The father and his attorney appealed from
those portions of the order. The Appellate Division affirmed.
Appellate Division, Third Department
Procedures mandated by FCA § 1017 must be strictly
followed. Placement order must be set aside if a failure to comply with statute
prejudiced either the rights of a relative to seek placement or the child’s
right to be placed with a suitable relative
In
Matter of Richard HH v Saratoga County of Social Services, --- N.Y.S.3d ----,
2018 WL 3276162, 2018 N.Y. Slip Op. 04990 2018 WL 3276162 (3d Dept., 2018) in
September 2014, the children were removed from the mother’s care and placed in
the custody of respondent (DSS) after neglect petitions were filed against the
mother and the children’s father. In February 2015, Family Court issued an
order finding the children to be neglected and continuing their placement in
the custody of DSS. In October 2015, petitioner, the children’s maternal uncle,
filed two petitions seeking custody of the children and for permission to
intervene in the neglect proceedings pursuant to Family Ct. Act § 1035 (f).
Family Court’s denial of the uncle’s motion to intervene was reversed on appeal
and upon remittal, the uncle was joined and two permanency hearings were
conducted with respect to the younger child. Following a trial on the uncle’s
custody petition and a Lincoln hearing, Family Court dismissed the uncle’s
petition. The Appellate Division reversed.
The Appellate Division held that the
uncle was prejudiced by DSS’s failure to
comply with Family Ct. Act § 1017, which provides, as relevant here, that when
a court determines that a child must be removed from his or her home based on
neglect, the court shall direct the local commissioner of social services to
conduct an immediate investigation to locate relatives who may be a placement
resource and to provide any such individuals with written notice of the
pendency of the neglect proceeding and the opportunity to seek custody of the
child (see Family Ct. Act § 1017[1][a] ). After the investigation is completed,
the court must determine whether there is a relative with whom the child may
appropriately reside (see Family Ct. Act § 1017[1][c]). If a suitable relative
exists, the court is required to “either place the child with that relative or
with the local commissioner of social services with directions to allow the
child to reside with that relative pending his or her approval as a foster
parent,” and, notably, only if no suitable relative can be located should
Family Court consider another placement. The statute, in short, is intended to
guard not only the rights of relatives of a child who is removed from his or
her home, but also to protect the rights and interests of children to be placed
with their relatives”. It accomplishes this purpose by requiring that the
initial placement of children who must be removed from their homes be made,
whenever possible, with a relative, thereby allowing them to form or maintain
bonds with family members rather than with foster parents. A placement order
must be set aside if a failure to comply with [Family Ct. Act § 1017]
prejudiced either the rights of a relative to seek placement or the child’s
right to be placed with a suitable relative.
The Appellate Division found that the uncle
testified that he received a single telephone call from DSS personnel
approximately four months after the children were placed in DSS custody asking
whether he would be a custodial resource if the mother’s parental rights were
terminated, and that he responded affirmatively. He stated that DSS did not
contact him again until after he filed the instant custody petition—more than
one year after the children were first removed from the mother’s home—when it
sent him the New York State Handbook for Relatives Raising Children. In its
appellate brief, DSS admitted that it did not timely provide the uncle with the
required information but criticized him for not sooner seeking custody.
Notably, the statute did not impose a duty on the uncle to have affirmatively
sought placement based solely upon DSS’s inquiry regarding his willingness to
be a custodial resource if the mother’s parental rights were terminated and
before he was advised of the procedures by which he could do so. Rather, the
statute imposed a duty on DSS to “immediately” conduct an investigation to
locate relatives and provide the required information, in writing (Family Ct.
Act § 1017[1][a]).
The
Appellate Division found that the failure of Family Court and DSS to strictly
follow the statutory mandate to seek initial placement with a relative in this
case created the very harm the statute was intended to prevent—long-term
placement in foster care rather than with a suitable relative. Not only did DSS
fail to identify the uncle as a custodial resource and to provide him with the
mandated information, it ignored his initial expression of willingness to serve
as a custodial resource for the child. Moreover, when the uncle filed his
custody petition, he was treated as an unwelcome interloper by both DSS and
Family Court, which erroneously denied his motion to intervene in the Family Ct
Act article 10 proceeding and contemplated staying an investigation regarding
the uncle’s suitability as a custodial resource that was being conducted in
Texas pursuant to the Interstate Compact on the Placement of Children (see
Social Services Law § 374–a [hereinafter ICPC]). Family Court’s conclusion that
“[h]ad the [u]ncle requested that [the child] be placed with him in September,
2014, when she was initially placed in foster care, DSS may very well have
placed [the child] with the [u]ncle” ignored the fact that DSS failed to
fulfill its statutory duty to inform the uncle of the methods by which he could
seek placement of the child. These failures were especially egregious given
that Family Court and DSS now agreed that the uncle and his wife were able to provide
a good home for the child. The procedures mandated by Family Ct. Act § 1017 are
to be strictly followed.
