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Saturday, January 11, 2020

Recent Decisions and Legislation January 1, 2020


January 1, 2020



The October 2019 update to my 9 volume treatise, Law and The Family New York, 2d has been released and is available on the Thomson Reuters website bookstore.

​​​Law and the Family York Forms, my 5 volume legal form set, has been released in a softcover edition, and is now titled Law and the Family New York Forms, 2019 Edition. It is available on the Thomson Reuters website bookstore.


Recent Legislation

Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section 358-a


            Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089  as well as of the Social Services Law section 358-a, to require an agency with which a child has been placed, either voluntarily or as a result of an abuse or neglect finding, or to whom guardianship and custody has been transferred as a result of the child being freed for adoption, to report to the attorney for the child not later than ten days in advance of any change in the child's placement status and not later than the next business day in any case in which an emergency placement change has been made. According to the memorandum in support of the legislation, first, it requires a report within five days of the date that any report of abuse or maltreatment is found to be indicated. Indicated reports include those naming the child and, where the subjects of the reports involve the person or persons caring for the child, reports naming other children in the home.  It contains an important proviso that such reports notify the recipients that the information shall be kept confidential, shall be used only in connection with the child protective, foster care or related proceedings under the Family Court Act and may not be re-disclosed except as necessary for such proceeding or proceedings and as authorized by law. Second, recognizing that fairness also dictates that such notifications be made to the attorneys for all parties, not simply the attorneys for the children, the measure requires that, except in cases involving children freed for adoption, both notices of changes in placement and indicated child maltreatment reports be conveyed to attorneys for the birth parents. Family Court Act §1017 was amended by adding a new subdivision 5. Family Court Act, §1055 (b)(E) was repealed. Family Court Act § 1055 was amended by adding a new subdivision (j). Family Court Act 1089 (d) 2 (vii) was amended by adding a new clause (H) and Social Services Law §358-a, subd. 3 was amended by adding a new paragraph (g).

Laws of 2019, Ch 716, enacted and effective December 20, 2019, amended Domestic Relations Law and the Civil Rights Law.


            Domestic Relations Law section 15 was amended to amend the
'Notice to Applicant', which appears on every application for a marriage license, to include language that informs those seeking a license that either or both spouses may elect to change their middle name to his or her current last name, any former last name he or she has had, or the last name of the other spouse. Domestic Relations Law section 14-a was amended to include the option of changing a middle name on the marriage license. Civil Rights Law section 65 was amended to provide that any person may elect to resume the use of a former middle name upon divorce or annulment and that the state shall not impose a fee to change the middle name on a state identifying document due to a change in marital status. The purpose of the amendments is to allow one or both parties to a marriage to elect to change their middle name on their marriage license. According to the memorandum in support of the legislation, many women and men are opting to change their last name upon marriage but want to keep their former last name in some capacity.  One popular way to accomplish this is to keep the former last name as a new or second middle name. Many states allow for such a change to occur with ease on the marriage license, but New York did not.


Laws of 2019, Ch 712 enacted and effective on December 20, 2019, amended Domestic Relations Law §11-a, subd. 1 a to allow the New York City clerk to designate additional staff members as he or she deems necessary to officiate marriages.


Laws of 2019, Ch 663, enacted on December 12, 2019, effective 90 days after it becomes a law, amended Family Court Act § 812, subd. 5, and Criminal Procedure Law § 530.11.

            Family Court Act § 812 and Criminal Procedure Law § 530.11, include protections for alleged victims of domestic violence. The statutes placed responsibility upon law enforcement, prosecutors and the courts to ensure by written notice that victims are made aware of their rights, of the expectations they may have to obtain assistance from both the civil and criminal justice systems and of the remedies and resources available to them. The notice must be in writing in both English and Spanish and must recite the statutory language verbatim. The required language in the notice was overly complex. Family Court Act § 812 and Criminal Procedure Law § 530.11 were amended substantially simplify the language contained in the notice while, at the same time, expanding the breadth of information it provides. The amendment also provides that the notice be made available, at minimum, in plain English, Spanish, Russian and Chinese.

Laws of 2019, Ch 627, enacted December 12, 2019, and effective immediately amended CPLR 3215 (b) to outline the procedure for an inquest on a default judgment.

            CPLR 3215 (b), as amended provides that a party entitled to judgment may be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or affirmations as proof of damages. However, if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or, after giving reasonable notice that it will do so, by written sworn statements of the witnesses. If the party seeking judgment gives such notice and submits proof by written sworn statements, he or she must make all of those witnesses available for cross-examination. 


Appellate Division, First Department

In proceeding to establish standing to assert parental rights in seeking visitation under Domestic Relations Law § 70, the court has the discretion to direct “more monied” party to pay the other party’s counsel fee

            In Kelly G v Circe H, --- N.Y.S.3d ----, 2019 WL 6869009 (1st Dept.,2019), the Appellate Division held, as a matter of first impression for the Court, that, in a proceeding to establish standing to assert parental rights in seeking visitation and custody under Domestic Relations Law § 70, the court has the discretion to direct the “more monied” party to pay the other party’s counsel and expert fees under Domestic Relations Law § 237 before that party has been adjudicated a parent. It affirmed the order granting respondent’s cross-motion for interim counsel fees to the extent of awarding her $200,000. The Appellate Division observed that Domestic Relations Law § 237(b), provides, in relevant part, that “upon any application ... concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires....” This statute, like Domestic Relations Law § 70, does not define the term “parent.” In holding that Domestic Relations Law § 70 “permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation” (Brooke S.B., 28 NY3d at 27), the Court of Appeals stressed that it “has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term ‘parent’ ” (Brooke S.B. at 24). Consonant with that approach, it found that highly inequitable results would flow in this case from permitting the party with far greater resources to seek custody as against the child’s primary parent without allowing that parent to seek counsel fees. Without determining that she is a parent for purposes beyond the application of Domestic Relations Law § 237(b), it found that Domestic Relations Law § 237(b) must be read to permit the court to direct the petitioner to pay respondent’s counsel fees as necessary “to enable [her] to ... defend the application ... as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.”
           
           
Appellate Division, Second Department


Supreme Court has the discretion to consider the application for counsel fees, made in opposition papers without a cross-motion

            In Ospina–Cherner, v. Daniel Cherner, --- N.Y.S.3d ----, 2019 WL 7160518 (2d Dept.,2019) the Appellate Division held that  Supreme Court had the discretion to consider the defendant’s application for an award of attorney’s fees, made in his opposition papers to the subject motion, even though he did not make a cross-motion under CPLR 2215 (see Fried v. Jacob Holding, Inc., 110 AD3d 56, 65).



Appellate Division, Fourth Department


22 NYCRR part 202 provisions do not apply to proceedings in the Family Court

            In Lopez v Lopez, --- N.Y.S.3d ----, 2019 WL 7044566 (4th Dept., 2019) the Appellate Division rejected the father’s challenges to the order of reference in this visitation proceeding. The father’s “ ‘argument that the court erred when it referred this matter to a referee( to hear and report ) in the absence of exceptional circumstances (see CPLR 4212) was waived, since the record established that [he] participated in the proceeding before the [R]eferee without objection. Contrary to the father’s further contention, the alleged failure of the order of reference to comply with 22 NYCRR 202.43(d) and 22 NYCRR 202.44(a) did not affect its validity because, with one exception not applicable here (see 22 NYCRR 202.16), “the provisions of 22 NYCRR part 202 apply only to ‘civil actions and proceedings in the Supreme Court and the County Court,’ not to proceedings in the Family Court” (McDuffie, 154 AD3d at 1309, quoting 22 NYCRR 202.1[a]; see Matter of McDermott v. Berolzheimer, 210 A.D.2d 559, 559–560 [3d Dept 1994] ). It also rejected the father’s contention that the order on appeal must be reversed because the court confirmed the Referee’s report before the expiration of the 15–day period set forth in CPLR 4403.

           
Although PAS is not routinely accepted as a scientific theory by New York courts the Court recognizes the effects of alienating behaviors by a parent

            In Matter of Krier v Krier, --- N.Y.S.3d ----, 2019 WL 7043498, 2019 N.Y. Slip Op. 09129 (4th Dept.,2019) the Appellate Division affirmed an order which granted the father sole legal and physical custody of the child. It concluded that the father established a sufficient “change in circumstances to warrant an inquiry into the best interests of the child” based on both the expert testimony that the child was demonstrating elements of parental alienation and “‘the continued deterioration of the parties’ relationship’. It concluded that there was a sound and substantial basis for the determination that an award of sole custody to the father was in the child’s best interests. The court properly weighed the relevant factors and found that all weighed in favor of placement with the father except the child’s wishes. Although the child was 15 years old at the time of the hearing, the court properly determined that his wishes were not entitled to great weight since the child was so profoundly influenced by his mother “that he cannot perceive a difference between” the father’s abandonment of the marriage and the father’s abandonment of him and that it was in the child’s best interests to reside with the father despite his wishes to the contrary.  Contrary to the contention of the mother and the AFC, the court did not improperly rely on the presence of “parental alienation syndrome” (PAS) in making its custody determination. The father’s expert did not conclude that PAS, as a diagnosis, existed in this case and rather testified that the type of conduct in which the mother engaged resulted in the child becoming alienated from the father. Although PAS is not routinely accepted as a scientific theory by New York courts (see Matter of Montoya v. Davis, 156 AD3d 132, 135 n 5 [3d Dept 2017]), the Court has repeatedly recognized the effects of alienating behaviors by a parent on children in custody and visitation determinations.

            The Appellate Division agreed with the mother and the AFC that the court exceeded its jurisdiction in suspending maintenance payments to the mother since the parties’ separation agreement setting forth that obligation is an independent contract. Family Court is a court of limited jurisdiction and cannot exercise powers beyond those granted to it by statute, and “[i]t generally has no subject matter jurisdiction to reform, set aside or modify the terms of a valid separation agreement” (Johna M.S., 10 NY3d at 366).


Fourth Department allows attorneys fees by affidavit holding “attorney’s fees should not be awarded without a hearing or requiring proof by affidavit substantiating the attorney’s fees requested”.    


            In Brinson v Brinson, --- N.Y.S.3d ----, 2019 WL 7043519 (4th Dept., 2019) the Appellate Division held that the court should have conducted an evidentiary hearing before granting respondent’s application for an award of his attorney’s fees since respondent failed to furnish sufficient documentation of the value of the services performed by the attorney. This issue was preserved since petitioner contested previous requests for attorney’s fees, at the final appearance respondent first requested the $3,000 in attorney’s fees but submitted no supporting documentation, and the petitioner was not afforded an adequate opportunity to dispute the same. It held that attorney’s fees should not be awarded without conducting a hearing or requiring proof by affidavit substantiating the attorney’s fees requested. (Moses v. Moses, 231 A.D.2d 850, 850 [4th Dept 1996]; see Matthews v. Matthews, 238 A.D.2d 926, 927 [4th Dept 1997]). An award for attorney’s fees is improper absent documentation of the submitted value of the services performed (see Johnston v. Johnston, 63 AD3d 1555, 1556 [4th Dept 2009]; Marshall v. Marshall, 1 AD3d 323, 324 [2d Dept 2003]; cf. Ackerman v. Midura, 145 AD3d 647, 648 [2d Dept 2016] ). Thus, it concluded that “it was an abuse of discretion to award the amount of counsel fees requested, without affording [petitioner] the opportunity to elicit further information on the reasonable value of those services” (Matter of Kobel v. Martelli, 112 A.D.2d 756, 757 [4th Dept 1985]). It modified the order and judgment by vacating the award of attorney’s fees and remitted the matter to Supreme Court for a determination regarding attorney’s fees based upon proper proof (see Matthews, 238 A.D.2d at 926; Moses, 231 A.D.2d at 850).





December 16, 2019

Announcement
I am pleased  to announce that commencing with the January 2, 2020 issue of the New York Law Journal I will resume writing my  "Law and the Family" column, which I wrote for the Law Journal for many years. The column will be a regular feature in the the Law Journal, appearing every other month.

Position Wanted

We are looking to establish an “of counsel” relationship with a Manhattan law firm.

Recent Legislation
          Laws of 2019, Ch 623, enacted December 12, 2019 amended the Family Court Act § 657(c) to include non-parents with lawful orders of custody as persons who may make medical decisions for minors in their care.

Laws of 2019, Ch 623, amended the Family Court Act § 657(c) to add persons possessing a lawful order of custody as persons who have the right and responsibility, alongside the current provision of those possessing a lawful order of guardianship, to make medical decisions and necessary consents regarding the child in their care. It also amended Public Health Law Section 2504(4) to include non-parents with lawful orders of custody along with parents and guardians as persons whose consent is not needed for the provision of medical, dental, health and hospital services when in the

            Family Court Act § 657 (c) provides:
                           

     (c) Notwithstanding any other provision of law to the contrary,
   persons possessing a lawful order of guardianship or custody of a child
   shall have the right and responsibility to make decisions, including
   issuing any necessary consents, regarding the child's protection, educa-
   tion, care and control, health and medical needs, and the physical
   custody of the person of the child. Provided, however, that nothing in
   this subdivision shall be construed to limit the ability of a child to
   consent to his or her own medical care as may be otherwise provided by
   law.



      Laws of 2019, Ch 62, enacted December 12, 2019 and effective immediately amended CPLR 3215 (b) to outline the procedure for an inquest on a default judgment.

            A defendant who defaults in appearing concedes only liability. Therefore, the defaulting defendant may still contest damages at an inquest.      In Rokina Opt. Co. v Camera King, , 63 N.Y.2d 728, 730 supra, the Court of Appeals held that "judgment against a defaulting party may be entered only upon application to the court along with notice to the defaulting party and 'a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages'."

            As amended, CPLR 3215 (b) provides that a party entitled to judgment may be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or affirmations as proof of damages. However, if the defaulting party gives reasonable notice that it will appear  at  the  inquest, the party seeking damages may submit any  proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or, after  giving  reasonable  notice  that  it  will  do  so, by written sworn statements of the witnesses. If the party seeking judgment gives such notice and submits proof by written sworn statements, he or she must make all of those witnesses available for cross-examination. 


            CRPL 3215(b) was amended to read as follows:

     (b)  Procedure before court.  The court, with or without a jury, may
   make an assessment or take an account or proof, or may direct a refer-
   ence.  The party entitled to judgment may be permitted to submit, in
   addition to the proof required by subdivision (f) of this section, prop-
   erly executed affidavits or affirmations as proof of damages, provided
   that if the defaulting party gives reasonable notice that it will appear
   at the inquest, the party seeking damages may submit any such proof by
   oral testimony of the witnesses in open court or, after giving reason-
   able notice that it will do so, by written sworn statements of the
   witnesses, but shall make all such witnesses available for cross-exami-
   nation.  When a reference is directed, the court may direct that the
   report be returned to it for further action or, except where otherwise
   prescribed by law, that judgment be entered by the clerk in accordance
   with the report without any further application. Except in a matrimonial
   action, no finding of fact in writing shall be necessary to the entry of
   a judgment on default. The judgment shall not exceed in amount or differ
   in type from that demanded in the complaint or stated in the notice
   served pursuant to subdivision (b) of rule 305 of this chapter.
  

Appellate Division, Second Department


Motion to modify parties’ apportionment of responsibility for AFC’s fees should not have been decided without evidentiary hearing

           In Lee v Rogers, 2019 WL 6334018 (2d Dept.,2019) after the Court of Appeals reversed the Appellate Divisions order, rejecting the adequate relevant information standard, and determined that an evidentiary hearing was required (see S.L. v. J.R., 27 N.Y.3d 558, 36 N.Y.S.3d 411, 56 N.E.3d 193) the AFC moved, in effect, for an award of attorney’s fees. The plaintiff opposed the motion and moved to modify the parties’ apportionment of responsibility for the fees for the AFC. Supreme Court denied the plaintiff’s motion for modification, and directed an evidentiary hearing on the reasonableness of the AFC’s fees. Following the hearing, the court found that the fees were reasonable, and entered an order awarding the AFC compensation of $34,624.65, payable in equal shares by the parties.

            The Appellate Division held that contrary to the plaintiff’s contention, the difference in opinion between it (see Matter of Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360) and the Appellate Division, Third Judicial Department (see Redder v. Redder, 17 A.D.3d 10, 792 N.Y.S.2d 201), as to whether attorneys for children may be compensated directly by the children’s parents, rather than by the State, did not give rise to a constitutional claim under the equal protection clauses of the state and federal constitutions.

            The Appellate Division held that  contrary to the plaintiff’s contention, it was appropriate for the AFC to make reasonable use of associates and support staff to conduct legal research and other work, under the AFC’s direct supervision, in connection with the appeal of the prior custody determination before the Court and the Court of Appeals (see 22 NYCRR 36.4[c][5] ). It agreed with the Supreme Court’s hearing determination finding that the fees requested by the AFC were reasonable.

            It held that plaintiff’s motion to modify the parties’ apportionment of responsibility for the AFC’s fees should not have been decided without an evidentiary hearing. Because the affidavits submitted by the parties provided sharply conflicting reports on the parties’ finances (see Anjam v. Anjam, 191 A.D.2d 531, 532, 594 N.Y.S.2d 822) and there was “no evidence in the record that the financial circumstances of the parties [had] ever been considered, an evidentiary hearing should have been conducted before the motion was decided.

            It remitted the matter to the Supreme Court for an evidentiary hearing on the parties’ respective finances, and a new determination thereafter of the plaintiff’s motion.


Not error for the Support Magistrate to impute to father the income of the father’s current spouse

            In Matter of Fanelli v Orticelli, 2019 WL 6519694 (2d Dept.,2019) the Appellate Division observed, that a support magistrate may impute income to a party based on resources available to the party, including “money, goods, or services provided by relatives and friends” (Family Ct. Act § 413[1][b][5][iv][D]). In affirming an order which increased the fathers child support obligation it held that it was not error for the Support Magistrate to impute to the father the income of the father’s current spouse in the support calculation (see Matter of Ladd v. Suffolk County Dept. of Social Servs., 199 A.D.2d 393, 394, 605 N.Y.S.2d 318; see also LiGreci v. LiGreci, 87 A.D.3d 722, 726, 929 N.Y.S.2d 253; Matter of Collins v. Collins, 241 A.D.2d 725, 727, 659 N.Y.S.2d 955).


Appellate Division, Third Department


Custody order reversed despite Family Court’s order being supported by the current record, where the lack of an AFC prejudiced the child’s interests

            In Matter of Marina C, v Dario D., --- N.Y.S.3d ----, 2019 WL 6331446, 2019 N.Y. Slip Op. 53953 (3d Dept.,2019) despite Family Court’s order being supported by the current record, the Appellate Division reversed and remitted for further proceedings conducted with the involvement of an AFC. The Court pointed out that it had  previously noted that the “appointment of an [AFC] in a contested custody matter remains the strongly preferred practice,” while acknowledging that “such appointment is discretionary, not mandatory” (Matter of Keen v. Stephens, 114 A.D.3d 1029, 1031, 981 N.Y.S.2d 174 [2014]. It has also “emphasized] the contributions competent [AFCs] routinely make in contested matters; they not only protect the interests of the children they represent; they can be valuable resources to the trial court”. While advocating for the child, an AFC may provide a different perspective than the parents’ attorneys, including through the presentation of evidence on the child’s behalf, and may “recommend alternatives for the court’s consideration.” Even absent a request, a court may appoint an AFC on its own motion (see Family Ct Act § 249[a]). It noted that Family Court had appointed an AFC for this child in connection with a previous proceeding that resulted in a stipulated order made less than two months before the commencement of this modification proceeding yet Family Court inexplicably did not appoint the same or another AFC to protect the child’s interests. The Court found that the lack of an AFC prejudiced the child’s interests. For example, the mother called the child’s therapist as a witness and no objection was raised when the therapist testified regarding information that the child had disclosed in therapy. Had an AFC been appointed, that attorney presumably would have sought to protect the private and confidential nature of the child’s discussions in therapy, rather than let the parents use the child’s statements and therapist as weapons to support their own goals. The father also testified regarding statements made by the child; an AFC could have objected to those hearsay comments. Further, an AFC could have called additional witnesses, asked questions of the witnesses called by the parties or presented other evidence to elicit information that would support the child’s position. It held that under the circumstances Family Court improvidently exercised its discretion by failing to appoint an AFC, and such failure prejudiced the child. It remitted for a new fact-finding hearing on the mother’s modification petition, with the appointment and participation of an AFC.


Modified stay-away order of protection pursuant to Family Ct Act § 1061 must reflect a resolution consistent with best interests of the child and must be supported by a sound and substantial basis in the record.

            In Matter of Andreija N, --- N.Y.S.3d ----, 2019 WL 6331396, 2019 N.Y. Slip Op. 53957 (3d Dept.,2019) petitioner, inter alia, commenced an abuse proceeding alleging that respondent sexually abused the child. On July 20, 2018, Family Court) issued a temporary stay-away order of protection against respondent prohibiting any contact with the child (see Family Ct Act § 1029). This order of protection was extended several times. In August 2018, the mother filed a petition seeking sole legal and physical custody of the child. Thereafter, by consent of the parties, a forensic psychologist was ordered to conduct a forensic interview of the child in November 2018, and her report was submitted to the court. The psychologist then completed a second report in May 2019. In both reports, the psychologist concluded that there was no credible evidence that the father sexually abused the child and recommended implementing the custody order. On the first day of a combined fact-finding hearing on both petitions, both of the psychologist’s reports were received into evidence on consent. Without any testimony being taken, respondent, joined by the attorney for the child, then moved to vacate the stay-away order of protection. Both petitioner and the mother objected, and, after taking a brief recess, Family Court issued a ruling from the bench vacating the stay-away order of protection, without explanation. The court then issued a new temporary order of protection in May 2019 allowing respondent to exercise unsupervised visitation pursuant to a parenting schedule comparable to the custody order. The Appellate Division held that Family Court abused its discretion by modifying the stay-away order of protection pursuant to Family Ct Act § 1061. The modified order must reflect a resolution consistent with the best interests of the child after consideration of all relevant facts and circumstances and must be supported by a sound and substantial basis in the record” (Matter of Yosepha K. [Chana D.], 165 A.D.3d 932, 933, 85 N.Y.S.3d 583 [2018] Although Family Court failed to articulate its reasoning for vacating the stay-away order of protection, there were  several factors that led it  to conclude that the court did not have good cause to do so. The decision to vacate the stay-away order of protection was made on the first day of trial and, the record should have been further developed before a determination was made as to whether it was in the child’s best interests to allow respondent unsupervised, overnight parenting time. This was particularly so given respondent’s ongoing, threatening behavior towards the mother and others via text message and on social media. In a footnote the Court pointed out that during the course of this dispute, respondent threatened multiple judges, posted on social media prior to an appearance that he was “getting ready to f*** up some justice and go to jail tomorrow,” posted a photo of himself pointing a rifle equipped with a scope – in violation of the terms of the stay-away order of protection – and posted, the night before the child’s interview with the psychologist, “I know where and when so I’m packed up and ready to take back what’s mine tomorrow. Thoughts and prayers.” Then, on the day of the interview, respondent posted that he was “waiting at [the psychologist’s location]. Started at 11:00 got about 45 minutes to an hour until the sh** hits the fan. You all deserve what you get.”

            In her reports, the psychologist confirmed that she reviewed a series of emails and text messages between the parents and certain Facebook postings of respondent. The psychologist noted that the mother perceived respondent “as dangerous and threatening,” but did not produce any documentary proof of violence. The psychologist characterized respondent’s “behavior and statements [as] unconventional” and noted that “he has never been violent or caused harm to [the child] or [the mother].” The Courts concern with these observations was that domestic violence is not limited to physical violence. In its view, respondent’s behavior and threats were alarming and demonstrated a concerted effort to control and coerce the mother and others who were associated with this custody case. As such, it believed that respondent’s unabashed behavior evinced the hallmarks of domestic violence and should not have been diminished as simply “unconventional” (see e.g. www.opdv.gov/domestic-violence/what-is-domestic-violence.html; www.opdv.gov.publications/stalking-info guide). Given the need to further develop this record, it concluded that Family Court’s determination was premature and that good cause had not been shown to vacate the stay-away order of protection.

            In a footnote the Appellate Division stated that it recognized that the record on appeal included petitioner’s order to show cause submission to it seeking a stay pending appeal, which included respondent’s text messages and Facebook postings. Respondent maintained that these documents were not presented to Family Court and should not be considered as outside the proper record on appeal (see CPLR 5526). The record was unclear as to whether these submissions were before Family Court. The Court pointed out that the general rule is that the Court may not consider matters outside the record, i.e., materials not presented to the trial court (see Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298, 361 N.Y.S.2d 140, 319 N.E.2d 408 [1974]). Respondent, however, acknowledged in his brief that “all the submissions ... were reviewed and considered by [the psychologist].” Correspondingly, the psychologist included a list of documents considered, including text messages and Facebook posts, and comments on certain of these items. Given this context, and the paramount issue of the child’s best interests, it held that it would consider this submission (see Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d at 298–299, 361 N.Y.S.2d 140, 319 N.E.2d 408; Callahan v. Cortland Mem. Hosp., 127 A.D.2d 921, 922, 512 N.Y.S.2d 281 [1987]).

Family Court


In dismissing Adult Adoption Petition, Family Court points out apparent inadequacy of the official forms promulgated for adult adoptions

In Matter of the Adoption of Jalyssa L.-J., 2019 WL 6711559 (Family Ct., 2019)
a proceeding for the adoption of an adult child by her aunt, the prospective adoptive parent submitted a “Petition for Adult Adoption” (Adoption Form 29a) and a “Consent to Adult Adoption by Adoptee” (Adoption Form 29b). The only other papers submitted in support of the adoption were  purported copies of the birth certificates for both the proposed adoptive parent and the adult adoptive child and a proposed Report of Adoption (Form DOH-1928) promulgated by the Department of Health to notify it of a completed adoption for the purpose of making a new birth certificate. See Public Health Law § 4138. Family Court dismissed the petition for failure to seek and obtain pre-certification as a qualified adoptive parent in accordance with Domestic Relations Law § 115-d, see DRL § 115(1)(b), and for failure to make any showing that the proposed adoption would be in the best interests of the child. Id. § 116(2). In dismissing the petition, the Court pointed out the apparent inadequacy of the official forms promulgated for adult adoptions. See Family Ct. Act § 214; Uniform Rules for the Fam Ct (22 NYCRR) § 205.7(a). It explained that while adult adoptions may be dealt with more liberally than child adoptions, they are subject to the same statutory law as other adoptions. Matter of Mazzeo, 95 AD2d 91, 92 (3d Dept 1983). The Court of Appeals has observed, “an adult adoption must still be in the best interests of the adoptive child and the familial, social, religious, emotional and financial circumstances of the adoptive parents which may be relevant must still be investigated. The Court explained that the only simplified statutory procedure for adult adoptions is the elimination of the requirement for the consent of the adoptive child’s legal parents and custodians. Matter of Anonymous, 106 Misc 2d 792, 797 (Fam Ct, Kings County 1981); see DRL § 111(4).  However, the adult adoption petition form does more than simply remove the references to parental consent that are found in the standard form petition. The form also removes references to (1) the religious faith and income of the adoptive parent(s); (2) the religious faith of the adoptive child; (3) the heritage, religious faith, education and general physical appearance of the birth parents; (4) the adoptive child’s medical history; (5) the child protective history of the adoptive child and the adoptive parent(s); and (6) the criminal history of the adoptive child and the adoptive parent(s). All of this information is required either directly or indirectly by statute and is necessary to determine the best interests of the adult adoptive child. See DRL § 115, 115-d; 116; see also DRL § 112(3); 115(11).

Monday, December 02, 2019

Recent Decisions and Legislation December 1, 2019

December 1, 2019

New Website for Lawyers

Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net)  deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.

Recent Legislation

Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended Family Court Act § 412(2)(d), Domestic Relations Law § 236[B](5-a) (b)(5) and Domestic Relations Law § 236[B](6)(b)(4) 

Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended the Family Court Act and the Domestic Relations Law to change the biennial date of adjustment of the "income cap" under the maintenance guidelines law to coincide with the biennial adjustment date of the "income cap" under the Child Support Standards Act. Family Court Act § 412(2)(d), Domestic Relations Law § 236B(5-a)(b)(5) and § 236B(6)(b)(4) were amended to fix the date of the biennial adjustment of the temporary, post-divorce and spousal maintenance "income caps" at March 1" rather than January 31', as currently provided. By making the date March 1st rather than January 31st, the adjustment of the maintenance income cap would coincide with the date of adjustment of the child support combined parental income cap, as well as the date of adjustment of the federal poverty income level and self-support reserve.

The maintenance guidelines law which was enacted in 2015 provided that the maintenance income cap would be set initially at $175,000 and would increase pursuant to an adjustment formula keyed to increases in the CPI on January 31, 2016 and every two years thereafter. January 31' was the date set for adjustment of the temporary maintenance income cap under the temporary maintenance law, enacted in 2010, in effect prior to enactment of the maintenance guidelines law. It also was the date that the child support combined income cap pursuant to the Child Support Standards Act would have been adjusted. 

However, effective January 31, 2016, the date of adjustment of the Child Support Combined Income Cap was changed to March 1" rather than January 31' to conform with the date of adjustment of the self-support reserve pursuant
to Social Services Law § 111-I (2)(b). 

The adjustment date of the maintenance income cap was changed so that 
the adjustments in the maintenance and child support income caps all occur at the same time. 

Family Court Act § 412(2)(d) was amended to read as follows: 
(d) "income cap" shall mean up to and including one hundred  eighty-four  thousand  dollars  of  the  payor's  annual  income; provided, however, beginning March  first,  two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes  in  the  consumer  price  index  for  all urban consumers (CPI-U) as published by the United States  department  of  labor  bureau  of  labor statistics for the prior two years multiplied by the then income cap and then  rounded  to  the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 1, effective November 20, 2019)
Domestic Relations Law § 236[B](5-a) (b)(5) was amended to read as follows:
(5) "Income cap" shall mean up to and including one hundred eighty-four  thousand  dollars  of  the  payor's  annual  income; provided, however, beginning March  first,  two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes  in  the  consumer  price  index  for  all urban consumers (CPI-U) as published by the United States  department  of  labor  bureau  of  labor  statistics for the prior two years multiplied by the then income cap and then  rounded  to  the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 2, effective November 20, 2019)
  Domestic Relations Law § 236[B](6)(b)(4) was amended to read as follows:
     (4)  "Income cap" shall mean up to and including one hundred eighty-four  thousand  dollars  of  the  payor's  annual  income;  provided,  however,  beginning  March first, two thousand twenty and every two years thereafter, the income cap  amount shall increase by the sum of the average annual percentage changes in the consumer price  index  for  all  urban  consumers  (CPI-U)  as published  by  the  United  States  department  of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap.  (Laws of 2019, Ch 523, § 3, effective November 20, 2019)

Laws of 2019, Ch 434 enacted October 29, 2019, amended Family Court Act § 
1028-a (i), effective October 29, 2019.
 
  Family Court Act § 1028-a(a)(i) defines who may apply to become a foster parent under the circumstances described in that section. Applicants had been limited to relatives who were related within the third degree of consanguinity to either parent. This class of applicants excluded non-blood relatives, such as step-grandparents and "fictive" kin, who are included in the class of kinship foster parents who may exit foster care and become kinship guardianship with subsidies pursuant to social services law section 458-a thru 458-f. Family Court Act § 1028-a was amended to include to include, as eligible to apply to become foster parents,  all persons who are related to children as described in social services law §458-a (3) (a), (b), or (c)   who meet Family Court Act § 1028-a requirements.
 

Family Court Act § 1028-a provides:

§ 1028-a. Application of a relative to become a foster parent

 (a) Upon the application of a relative to become a foster parent of a child in foster care, the court shall, subject to the provisions of this subdivision, hold a hearing to determine whether the child should be placed with a relative in foster care. Such hearing shall only be held if:
(i) the person is related to the child as described under paragraph (a), (b), or (c) of subdivision three of section four hundred fifty-eight-a of the social services law;
(ii) the child has been temporarily removed under this part, or placed pursuant to section one thousand fifty-five of this article, and placed in non-relative foster care;
(iii) the relative indicates a willingness to become the foster parent for such child and has not refused previously to be considered as a foster parent or custodian of the child, provided, however, that an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal;
(iv) the local social services district has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the office of children and family services; and
(v) the application is brought within six months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than twelve months from the date that the child was removed.
(b) The court shall give due consideration to such application and shall make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child.
(c) After such hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, pursuant to regulations of the office of children and family services, to commence an investigation of the home of the relative within twenty-four hours and thereafter expedite approval or certification of such relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of such relative as a foster parent.

(Added L.2005, c. 671, § 3, eff. March 15, 2006. Amended L.2006, c. 12, § 2, eff. March 15, 2006; L.2019, c. 434, § 1, eff. Oct. 29, 2019.)

Laws of 2019, Ch 491, effective January 15, 2020, amended Domestic Relations Law §112 and Public Health Law 

The public health law was amended by adding a new section, § 4138-e. According to the Assembly Memorandum in support of the legislation the amendment is intended to restore adult adoptees' right to access information that non-adopted persons, including those who "age-out" of foster care, have a legal right to obtain. In New York, an adopted person cannot access his or her original birth certificate unless the adopted person goes through a judicial proceeding and, even then, the outcome does not guarantee that access will be granted. This amendment  will allow adult adoptees, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person (living) or lawful representatives of such deceased adopted person's direct line descendants, to obtain a certified copy of the adopted person's original long form birth certificate. Adoptees will continue, under existing law, to be able to secure "non-identifying" information which may include, but not be limited to, their religious and ethnic heritage and medical history information that may be necessary for preventive health care and the treatment of illnesses linked to family history and genetics. To whatever extent "non-identifying" information may be unavailable, the restoration of the civil right to one's own original birth certificate will restore equal opportunity for seeking
such information.
 

Public Health Law § 4138-e  provides that an adopted person eighteen years of age, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person, or lawful representatives of such deceased adopted person's direct line descendants can obtain a certified copy of the adopted person's original long form birth certificate, from the commissioner or a local registrar, in the same manner as such certificates are available to persons born in the state of New York who were not adopted. It also requires the commissioner to provide the adopted person or other authorized person with the background information about the adopted child and the adopted child's birth parents sent to the commissioner pursuant to subdivision 1 of § 114 of the domestic relations law.
 
In addition, in the event that the commissioner does not have the
original birth certificate of an adopted person, it requires courts and other agencies that have records containing the information that would have appeared on the adopted person's original long form birth certificate to provide such information, including all identifying information about the adopted person's birth parents, to the adult
adopted person or other authorized person upon a simple written request therefor that includes proof of identity. (Section 1)

 
Public Health Law § 4138, subd 4 was amended to authorize the commissioner to make microfilm or other suitable copies of an original certificate of birth in accordance with section 4138-e and to authorize the commissioner to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 2)

Public health law § 4138 subd. 5 was amended to state that a certified copy of the original long form certificate of birth of such a person shall be issued to an adult adopted person in accordance with § 4138-e of the public health law. (Section 3)
 
Public Health Law § 4138 subd. 3 (a) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 4)
 
Public Health Law § 4138 subd. 3 (b) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 5)
 
Public Health Law § 4138 subd. 8 was added of the public health law to authorize adopted persons eighteen years of age or older, or the birth parent (s), to submit a change of name and/or address to be attached to the original birth certificate of the adopted person. (Section 6)  

Public Health Law § 4138-d was amended to remove the provision that allows an adoption agency to restrict access to non-identifying information that is not in the best interest of the adoptee, the biological sibling or the birth parent(s). (Section 7)
 
Public Health Law § 4104 was amended to include additional provisions under vital statistics that would be applicable to the city of New York. (Section 8)
 
Domestic Relations Law § 114, subd. 1 was amended to require that any order of adoption direct that the information to be provided to the adoptive parents about the child and the child's birth parents shall include the child's and birthparents' information at the time of surrender and, in addition, that the information provided to the
adoptive parents also be provided to the commissioner of health. (Section 9)
 
The effective date of the amendments is January 15, 2020. (Section 10)

Appellate Division, First Department

Appellate Division, Second Department


Second Department affirms judgment directing father to provide exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with ‘Hasidic’ religious requirements

In Cohen v Cohen, 2019 WL 6139488 (2d Dept.,2019) the parties were married in 2009 and had two children, born in 2011 and 2013. During the early years of the marriage, the parties practiced Satmar Hasidic Judaism. At a certain point, the defendant (father) became non-religious, although he continued to appear religious in his dress and customs. The parties separated in December 2016. In January 2017, the plaintiff (mother) commenced the action for a divorce. Following a nonjury trial, the Supreme Court awarded the mother sole physical and legal custody of the children, with parental access to the father. The father was directed to provide the children with exclusively kosher food and to make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The court emphasized that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.
The Appellate Division affirmed the custody award. It observed that when presented as an issue, religion may be considered as one of the factors in determining the best interests of a child, although it alone may not be the determinative factor. New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other.
The father challenged the Supreme Court’s direction that he provide the children with exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The father contended that this provision was unconstitutional and not in the children’s best interests, relying primarily on the Court’s decision in Weisberger v. Weisberger. 154 A.D.3d 41, 60 N.Y.S.3d 265. 

The Appellate Division distinguished Weisberger, where the Supreme Court enforced a religious upbringing clause in the parties’ separation agreement by ordering that, during any period of parental access or during any appearance at the children’s schools, the mother “must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy,” or be relegated to supervised therapeutic visitation. On appeal in Weisberger, the Second Department determined that it was “wholly inappropriate to use supervised [parental access] as a tool to compel the plaintiff to comport herself in a particular religious manner”. This Court held that the Supreme Court had run afoul of constitutional limitations by compelling the mother to herself practice a religion, rather than merely directing her to provide the children with a religious upbringing. Here, by contrast, the father was directed to make reasonable efforts to ensure the children’s compliance with their religious requirements. The Supreme Court expressly stated that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.
 
The Appellate Division pointed out that in the absence of a written agreement, the custodial parent may determine the religious training of the children. Since the mother was the custodial parent entitled to determine the children’s religious training, and since the children had consistently adhered to Hasidic practices throughout their lives, the Supreme Court providently exercised its discretion in directing the father to provide the children with exclusively kosher food and to make all reasonable efforts to ensure the children’s compliance with their religious requirements while they are in his physical custody. It emphasized, as did the Supreme Court, that the defendant was not required, at any time, to himself comply with any religious practices. It further emphasized that the standard was one of reasonable efforts, not perfection.


Husband who waive interest in wife’s degree, directed to contribute to wife’s student loan debt where attainment of degree did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage.

  In Santamaria v Santamaria, --- N.Y.S.3d ----, 2019 WL 5945643, 2019 N.Y. Slip Op. 08239 (2d Dept.,2019) the parties were married on December 3, 2000, and had two children. The plaintiff-husband commenced the action for a divorce on August 2, 2013. 

The Appellate Division held that Supreme Court providently exercised its discretion in awarding the plaintiff-husband a separate property credit of $332,000 related to the marital residence, and awarding the defendant a 50% share of any equity in the residence that accrued from 2002 until the date of its sale. The evidence at trial demonstrated that in 2002, the plaintiff’s mother transferred ownership of the subject property, where she resided, to the plaintiff and retained a life estate in the property. In 2010, after the death of plaintiff’s mother, the plaintiff transferred ownership of the property to himself and the defendant. At the time, the property was appraised at a value of $332,000. In 2011, after renovations were conducted, the parties and their children moved to the property, and it became the marital residence. The plaintiff’s conveyance of the home in 2010 to himself and the defendant presumptively changed the character of the home from separate property to marital property. It agreed with the court’s determination to award the plaintiff a separate property credit in the amount at which the residence was valued at the time the property was transferred to both parties. Furthermore, in light of the evidence that significant marital funds were used over the years to help preserve the plaintiff’s separate property asset, the court providently exercised its discretion in awarding the defendant 50% of any equity in the marital residence that accrued from 2002 until the date of its sale.
 
  The Appellate Division held that considering the relevant factors, the Supreme Court should have awarded the defendant-wife maintenance of $750 per month, commencing December 15, 2015, for a period of four years or until she remarries. Thus, it modified the judgment of divorce accordingly.

The defendant contended that the Supreme Court improvidently exercised its discretion in awarding the plaintiff child support retroactive to the date of the commencement of the action, rather than the date of the judgment of divorce. She argued that during the litigation, the parties and their children resided together in the marital residence, and the children’s needs were provided for by both parties.
Under the particular facts and circumstances of this case, the Appellate Division disagreed with the Supreme Court’s determination to award the plaintiff child support retroactive to the date of the commencement of the action. While the action was commenced on August 2, 2013, the plaintiff was not awarded residential custody of the children until the court issued an order dated November 18, 2015. The plaintiff failed to establish that he had de facto residential custody of the children at any earlier point in time. Thus, under these particular facts and circumstances, it found that the court should have awarded child support retroactive to November 18, 2015, the date of the custody order. In light of the financial circumstances of the parties, it agreed with the court’s determination directing the defendant to pay retroactive child support arrears at a rate of $150 per month, and not awarding the plaintiff statutory interest on the unpaid balance.
 
The Appellate Division agreed with the Supreme Courts direction to the plaintiff to pay $20,000 of defendant’s student loan debt. The plaintiff contended that the court should not have directed him to pay any portion of the defendant’s student loan debt, because he waived any interest in the defendant’s Bachelor’s degree, and the evidence failed to establish what portion of the loans was incurred during the marriage. It observed that a  spouse is generally required to bear the obligation of repayment of the balance of a student loan taken out by that spouse during the course of the marriage where “no benefit inured to the marriage” (Heydt–Benjamin v. Heydt–Benjamin, 127 A.D.3d 814, 815, 6 N.Y.S.3d 582). Here, however, there was evidence that the defendant’s attainment of her Bachelor’s degree in business administration did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage. The testimony established that prior to obtaining her Bachelor’s degree, the defendant was only able to work in restaurants and a hotel as a waitress, earning a very limited salary. At the time of the trial, however, the defendant had been employed with Winston Staffing Services as a headhunter, earning a salary of $50,000 annually plus commissions. Although the plaintiff waived any interest in the defendant’s degree, the defendant’s enhanced earning ability did benefit the marriage, and it was not unreasonable for the Supreme Court to direct the plaintiff to pay a portion of the defendant’s student loans, which were incurred during the marriage and were owed since 2005. The evidence at trial demonstrated that the outstanding student loan balance was approximately $52,000, and that the majority of the student loans were incurred during the marriage. Thus, it agreed with the court’s determination to direct the plaintiff to pay $20,000 of the outstanding student loan debt.


Appellate Division, Fourth Department

Family Court erred when it determined that father’s alleged violation of the child support order was willful because it did not afford the father opportunity to be heard and present witnesses
 
In Matter of Green v Lafler, --- N.Y.S.3d ----, 2019 WL 6042451, 2019 N.Y. Slip Op. 08306 (4th Dept.,2019) the Appellate Division agree with the father that the court erred when it determined that the father’s alleged violation of the child support order was willful because it did not afford the father with the opportunity to be heard and present witnesses. Although “[n]o specific form of a hearing is required, ... at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” (Thompson, 59 A.D.3d at 1105, 873 N.Y.S.2d 786. Moreover, “[i]t is well settled that neither a colloquy between a respondent and [the] [c]ourt nor between a respondent’s counsel and the court is sufficient to constitute the required hearing” (Davis, 104 A.D.3d at 1228, 960 N.Y.S.2d 806). None of the parties’ appearances on the violation petition consisted of an adducement of proof coupled with an opportunity to rebut it. At most, there was merely “a colloquy” between the father and Support Magistrate, which is insufficient to constitute the required hearing. Moreover, there was nothing in the record to establish that petitioner mother provided admissible evidence with respect to the father’s alleged willful failure to pay child support, nor was there any admissible evidence submitted by the Support Collection Unit. Also, the father was never given the opportunity to present evidence rebutting the allegations in the petition. It reversed the order and remitted the matter to Family Court for a hearing on the petition in compliance with Family Court Act § 433.
 


November 16, 2019


New Website for Lawyers
Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net)  deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.


New York Court Rules
By Joint orders, effective February 15, 2019, and June 1, 2019, the Judicial Departments of the Appellate Division amended the rule regarding the Statement of Client’s Rights and Responsibilities set forth in section 1400.2 of Part 1400 of Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York. 

The amended Rule provides as follows: 

Section 1400.2. Statement of client's rights and responsibilities

An attorney shall provide a prospective client with a statement of client's rights and responsibilities in a form prescribed by the Appellate Divisions, at the initial conference and prior to the signing of a written retainer agreement. If the attorney is not being paid a fee from the client for the work to be performed on the particular case, the attorney may delete from the statement those provisions dealing with fees. The attorney shall obtain a signed acknowledgment of receipt from the client. The statement shall contain the following:
STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully.
If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case.
An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability.
You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship, to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney.
If you are hiring an attorney you and your attorney are required to sign a written retainer agreement which must set forth, in plain language, the nature of the relationship and the details of the fee arrangement. Before you sign the retainer agreement, you are responsible to read it and ask the attorney any questions you have before you sign it. At your request, and before you sign the agreement, you are entitled to have your attorney clarify in writing any of its terms, or include additional provisions.
You are entitled to fully understand the proposed rates and retainer fee before you sign a retainer agreement, as in any other contract. The retainer fee you pay to the attorney, as is written in the retainer agreement, may not be enough money to pay for all the time that the attorney works on your case.
You may refuse to enter into any fee arrangement that you find unsatisfactory.
An attorney may not request a fee that is contingent on the securing of a divorce or on the amount of money or property that may be obtained.
An attorney may not request a retainer fee that is nonrefundable. That is, should you discharge the attorney, or should the attorney withdraw from the case with Court permission, before the retainer has been used up, the attorney is entitled to be paid commensurate with the work performed on your case and any expenses. The attorney must return to you any balance of the retainer that has not been used. However, the attorney may enter into a minimum fee arrangement with you that provides for the payment of a specific amount below which the fee will not fall based upon the attorney's handling of the case to its conclusion.
You are entitled to know the approximate number of attorneys and other legal staff members who will be working on your case at any given time and what you will be charged for the services of each.
You are entitled to know in advance how you will be asked to pay legal fees and expenses, and how the retainer, if any, will be spent.
You may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so.
The other party may be responsible to contribute to or to pay your attorney's fees, if the Court orders the other party to do so. However, if the other party fails to pay the Court ordered fee, you are still responsible for the fees owed to your attorney and experts in your case.
You are required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party.
If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees.
At your request, and after your attorney has had a reasonable opportunity to investigate your case, you are entitled to be given an estimate of approximate future costs of your case. That estimate shall be made in good faith but may be subject to change due to facts and circumstances that develop during your case. There are no guarantees that the cost of your case will be as originally estimated.
You are entitled to receive a written, itemized bill on a regular basis, at least every 60 days.
You are expected to review the itemized bills sent to you by your attorney, and to raise any objections or errors in a timely manner in writing. Time spent in discussion or explanation of bills will not be charged to you.
You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him.
You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary.
Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute.
You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge.
You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled.
Your attorney's written retainer agreement must specify under what circumstances he or she might seek to withdraw as your attorney for nonpayment of legal fees. If an action or proceeding is pending, the court may give your attorney a “charging lien,” which entitles your attorney to payment for services already rendered at the end of the case out of the proceeds of the final order or judgment. In some cases your attorney may exercise a “retaining lien” which, subject to Court proceedings, may allow them to keep your file as security.
You are under no legal obligation to sign a confession of judgment or promissory note, or to agree to a lien or mortgage on your home to pay for legal fees. Your attorney's written retainer agreement must specify whether, and under what circumstances, such security may be requested. In no event may such security interest be obtained by your attorney without prior court approval and notice to your adversary. An attorney's security interest in the marital residence cannot be foreclosed against you.
You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed.
If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it.
Once your Judgment of Divorce is signed, if you are re-retaining an attorney you must sign a new retainer agreement.
If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, that must be specified in the retainer agreement. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed.
In the event of a fee dispute, you may have the right to seek arbitration pursuant to Part 137 of the Rules of the Chief Administrative Judge where the dispute involves a sum of more than $1,000.00 or less than $50,000.00 unless you agree otherwise. Your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.
Receipt Acknowledged:
___________________________________ Attorney's signature
___________________________________ Client's signature
___________________________________ Date Form 1400.2-1(2/19)




UNIFIED COURT SYSTEM OF THE STATE OF NEW YORK
STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
(To be used only when representation is without fee)

An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully.
If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case.
An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability.
You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney.
Even though you are being represented by an attorney without fee, you may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so.
Even though you are being represented by an attorney without fee, the other party may be responsible to contribute to or to pay your attorney's or expert fees in your case, if the Court orders the other party to do so.
You may be required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party. The attorney will discuss this with you.
If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees.
You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him.
You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary.
Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute.
You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge.
You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled.
You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed.
If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it.
If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, you may have to make arrangements with another attorney to do so, and if the attorney charges you a fee, you must sign a retainer agreement with the other attorney. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed.
Receipt Acknowledged:
___________________________________ Attorney's signature
___________________________________ Client's signature
___________________________________ Date Form 1400.2-2(6/19)


Appellate Division, First Department

Appellants argument that he “simply forgot the date,” does not constitute a reasonable excuse for vacating a default.

In Krystal R. V Kriston L, 2019 WL 5876030 (1st Dept.,2019) the Appellate Divison held that, in refusing to vacate Respondents default, that he failed to demonstrate a reasonable excuse for his failure to appear at the hearing on the family offense petition (see CPLR 5015[a][1]). Although respondent contended that he was evicted a month before the hearing and subsequently lost his phone, he also admitted that he “simply forgot the date,” which does not constitute a reasonable excuse (see Matter of Jenny F. v. Felix C., 121 AD3d 413 [1st Dept 2014]). He was present during the scheduling of the hearing, and it was his responsibility to verify the date with his attorney or the Family Court itself (see e.g. Matter of Yadori Marie F. [Osvaldo F.], 111 AD3d 418, 419 [1st Dept 2013]).


Whether respondent eventually satisfied his arrears has no bearing on the court’s finding of willfulness. Support Magistrate not required to address probation as an additional enforcement remedy where raised by Support Magistrate

In Matter of Eve S.P., v. Steven N.S., --- N.Y.S.3d ----, 2019 WL 5876171, 2019 N.Y. Slip Op. 08130 (1st Dept.,2019) an enforcement proceeding, the Appellate Division found that by submitting evidence that respondent was delinquent in his support payments (see Family Court Act § 454[3][a]), petitioner established prima facie that respondent willfully violated his child support obligations. It held that whether respondent eventually satisfied his arrears had no bearing on the court’s finding of willfulness (see Matter of Shkaf v. Shkaf, 162 AD3d 1152, 1155 [3d Dept 2018]), particularly in light of his previous violations of his support obligations.
 
The Appellate Division rejected Petitioners argument that, in addition to entering a money judgment against respondent for the arrears, the support magistrate was required to address probation as an additional enforcement remedy, and that the support magistrate’s failure to set forth the “facts and circumstances” on which the decision not to place respondent on probation was based violated FCA § 454(4). Section 454(4) provides, “The court shall not deny any request for relief pursuant to this section unless the facts and circumstances constituting the reasons for its determination are set forth in a written memorandum of decision.” The Court held that probation is a matter within the sound discretion of Family Court (Matter of Delaware County Dept. of Social Servs. v. Brooker, 272 A.D.2d 835, 836 [3d Dept 2000], citing FCA § 454[3][a]). The record showed that the possibility of placing respondent on probation was first raised by the support magistrate. Petitioner cited no authority in support of her contention that the support magistrate’s aforementioned omission amounted to a statutory violation requiring remand for further proceedings.
 

“Very high burden” necessary for challenging prenuptial agreement

In DiPietro v Vatsky, --- N.Y.S.3d ----, 2019 WL 5791626, 2019 N.Y. Slip Op. 07989 (1st Dept.,2019) the Appellate Division held that Defendant husband’s efforts to meet his “very high burden” for challenging the parties’ prenuptial agreement failed (Anonymous v. Anonymous, 123 A.D.3d 581, 582, 999 N.Y.S.2d 386 [1st Dept. 2014]). The parties, both educated and savvy professionals with significant assets of their own, were each represented by independent counsel, and entered into the prenuptial agreement after a period of negotiations several months before the marriage. Plaintiff’s alleged failure to disclose did not provide a ground to set aside the prenuptial agreement particularly, here, where defendant proceeded to execute the prenuptial agreement despite his claim that plaintiff refused to supply him with financial documents. It agreed with the motion court that the prenuptial agreement and its amendments were not the product of overreaching. The prenuptial agreement, which included joint waivers of maintenance, the right to equitable distribution, and the right to election, was not so “manifestly unfair” as to warrant equity’s intervention. Although the transfer of defendant’s house to plaintiff may not have been in his best financial interest, defendant’s attorney made his objection to this provision abundantly clear. Defendant proceeded to execute the prenuptial agreement over his attorney’s objection. Thus, even if, in retrospect, this specific provision was improvident or one-sided, it did not provide a ground to vitiate the prenuptial agreement.

Appellate Division, Second Department


An award of counsel fees under Family Ct Act ' 438 should be based upon the totality of the circumstances, including the equities and circumstances of each particular case

In Roberts v Roberts,     N.Y.S.3d     , 2019 WL 5581904, 2019 N.Y. Slip Op. 07787 (2d Dept.,2019) the father filed a petition for a downward modification of his maintenance and child support obligations. Following a hearing, the court dismissed the father=s petition, granted the mother=s attorney counsel fees, and directed the entry of a money judgment in favor of the mother=s attorney and against the father in the sum of $9,221.25. The Appellate Division affirmed. It observed that a court may allow counsel fees at any stage of a proceeding under Family Court Act article 4 (see Family Ct Act ' 438). In determining an appropriate award of counsel fees, the court must consider factors such as the parties= ability to pay, the merits of the parties= positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel=s performance and the fees under the circumstances. Ultimately, the award should be based upon the totality of the circumstances, including the equities and circumstances of each particular case. Under the totality of the circumstances of this case, the mother was entitled to an award of counsel fees, and the Support Magistrate did not improvidently exercise her discretion in directing the entry of a money judgment in favor of the mother=s attorney.
 

Unless it can be shown that the trial court improvidently exercised that discretion, its equitable distribution determination should not be disturbed

  In Ambrose v Ambrose,     N.Y.S.3d     , 2019 WL 5582047, 2019 N.Y. Slip Op. 077577 (2d Dept.,2019) the parties were married in January 2012, and were the parents of one child, born in 2013. In October 2015, the plaintiff commenced the action for a divorce. The Appellate Division held, inter alai, that Supreme Court did not improvidently exercise its discretion in denying the defendant a distributive share of the plaintiff=s retirement assets. The trial court is vested with broad discretion in making an equitable distribution of marital property and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed.  Upon consideration of the relevant statutory factors and all of the attendant circumstances, including, inter alia, the short duration of the parties= marriage, the age and health of the parties, and that the defendant was awarded full title to her nonvested retirement assets, which were also subject to equitable distribution, there was no basis upon which to disturb the court=s determination.



Appellate Division, Fourth Department


Written notice of counsel’s motion to withdraw is required. Purported withdrawal without proof that reasonable notice was given is ineffective

In Matter of Gonzalez v Bebee, --- N.Y.S.3d ----, 2019 WL 5850893 (Mem), 2019 N.Y. Slip Op. 08027 (4th Dept.,2019) the Appellate Division reversed an order which  inter alia, sentenced respondent to jail for contempt of court and an order , in effect, confirmed the determination of the Support Magistrate, upon the father’s purported default, that he willfully violated a prior child support order and directed that he be incarcerated. It held that the Support Magistrate erred in allowing the father’s attorney to withdraw as counsel and in proceeding with the hearing in the father’s absence. “An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client ... [, and a] purported withdrawal without proof that reasonable notice was given is ineffective” (Matter of Williams v. Lewis, 258 A.D.2d 974, 974, 685 N.Y.S.2d 382 [4th Dept. 1999]; see CPLR 321[b][2]; Matter of La’Derrick W., 63 A.D.3d 1538, 1539, 880 N.Y.S.2d 805 [4th Dept. 2009]). The father’s attorney did not make a written motion to withdraw. Counsel merely agreed when the Support Magistrate, after noting the father’s failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel’s decision to withdraw in accordance with CPLR 321(b)(2) rendered the Support Magistrate’s finding of default improper, and Family Court thus erred in confirming those findings. It remitted the matter to Family Court for the assignment of new counsel and a new hearing on the violation petition of petitioner mother.

Monday, November 04, 2019

Recent Decisions and Legislation November 1, 2019


Appellate Division, Second Department

Forensic Report property admitted in custody case pursuant to 22 NYCRR 202.16(g)

            Comment: The Court of Appeals has held that forensic reports are not admissible in custody cases unless they are admitted pursuant to stipulation or upon consent of the parties. Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962). However, 22 NYCRR 202.16(g)(2) provides that in the discretion of the court, written expert reports may be used to substitute for direct testimony at the trial. The reports must be submitted by the expert under oath, and the expert must be present and available for cross-examination.  To be admissible the forensic report can not rely upon information other than that upon which an expert may properly base an opinion. see Jemmott v. Lazofsky, 5 A.D.3d 558, 772 N.Y.S.2d 840; Wagman v. Bradshaw, 292 A.D.2d 84, 86–87, 739 N.Y.S.2d 421).Matter of D'Esposito v Kepler, 14 AD3d 509, 788 N.Y.S.2d 169 (A.D. 2 Dept.2005)

            In Matter of Raymond v Raymond, 174 A.D.3d 625, 107 N.Y.S.3d 433, 2019 N.Y. Slip Op. 05546  (2d Dept., 2019) the mother filed a petition seeking sole custody of the parties’ only child, who resided with her. The father initially was awarded parental access every weekend. He subsequently filed a petition seeking increased parental access. Family Court granted the mother’s petition and denied the father’s petition. The Appellate Division agreed  with the Family Court’s determination to  admit the forensic report into evidence. The parties received access to the report well in advance of the scheduled hearing, the forensic evaluator testified and was cross-examined by the parties at the hearing, the parties had  the opportunity to rebut the forensic evaluator’s findings, and the conclusions in the report were based primarily on the forensic evaluator’s firsthand interviews rather than on hearsay statements made by nontestifying declarants.


Appellate Divison holds that test generally applied for setting combined parental income cap is whether child is receiving enough to meet his or her actual needs and the amount required to live an appropriate lifestyle

In Pandis v Lapas, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057564, 2019 N.Y. Slip Op. 07267(2d Dept.,2019) the parties were married in 1992. There were  two children of the marriage, S.P., born in 1999, and N.P., born in 2005. The plaintiff commenced this action for divorce on January 9, 2012. Supreme Court awarded the defendant sole custody of the children, and declined to direct any parental access between the plaintiff and the children. In terms of child support, the court set the combined parental income cap at $250,000. The court directed the plaintiff to pay child support of $3,593.75 per month, which was 69% of the basic child support for the two children. The court also directed the plaintiff to pay 69% of the children=s add‑on expenses, including private school tuition and college tuition.  The Appellate Division held, among other things, that Supreme Court did not err in setting the combined parental income cap for child support purposes at $250,000.  Where Athe combined parental income exceeds the [statutory cap], the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in [Domestic Relations Law ' 240(1Bb)(f)] and/or the child support percentage@ (Domestic Relations Law ' 240[1Bb][c][3]. The test generally applied is whether the child is receiving enough to meet his or her >actual needs and the amount required ... to live an appropriate lifestyle= @


Party must demonstrate Aexigent or compelling circumstances@ supporting request for an adjournment to obtain counsel at late stage in the hearing

            In Matter of Eckstein v Young, 2019 WL 5057835 (2d Dept., 2019) the Appellate Division affirmed an order which granted the mother custody and permission to relocate to Connecticut. The Appellate Division, inter alia,  rejected the fathers argument that he was denied the right to counsel. The right to be represented by counsel of one=s own choosing is qualified in the sense that a party may not employ such right as a means to delay judicial proceedings. Absent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a party=s request to substitute counsel made on the eve of or during trial if the party has been accorded a reasonable opportunity to retain counsel of his [or her] own choosing before that time. Family Court providently exercised its discretion in denying the father=s request for an adjournment to obtain new counsel When the father requested this adjournment, the hearing had been ongoing for three years; the father had finished presenting his case, including testifying on his own behalf and calling two witnesses, and the mother had completed most of her case, including testifying on her own behalf on six dates and calling two witnesses. The father failed to demonstrate that there were Aexigent or compelling circumstances@ supporting his request for an adjournment at this late stage in the hearing, and given that the father was represented for the first several years of the proceedings, there is no indication that he lacked Aa reasonable opportunity to retain counsel@ before the date on which he requested the adjournment.


Mothers willful interference with fathers right to parental access] so inconsistent with the best interests of the child as to, warrant custody award to father, despite forensic evaluator recommending custody to mother

In Matter of Nieves v Nieves, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057657, 2019 N.Y. Slip Op. 07261 (2d Dept.,2019) Family Court, denied the mother=s petition for sole legal and physical custody of the parties= child and granted the father=s petition for sole legal and physical custody of the child. The Appellate Division affirmed.  In September 2016, a court‑appointed forensic evaluator prepared a forensic evaluation, noting extensive evidence that the mother and the stepfather had engaged in behavior intended to alienate the child from the father. Despite this evidence, as well as other concerns regarding the mother=s parenting, the forensic evaluator recommended against awarding custody to the father on the ground that it would be Adevastat[ing]@ to the child. Family Court concluded that despite the forensic evaluator=s recommendation, subsequent events warranted awarding sole custody to the father on the ground, among others, that he was better able to foster the child=s relationship with the noncustodial parent. The Appellate Division observed that >[w]illful interference with a noncustodial parent=s right to [parental access] is so inconsistent with the best interests of the child[ ] as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent=. The record was replete with evidence of the efforts of the mother and the stepfather to thwart the father=s parental access and alienate the child from the father. The mother and the stepfather appeared to be Apunish[ing the child] for having a relationship with [him]@ by, inter alia, forcing the child to take telephone and video calls with the father outdoors, even in inclement weather, taking a tablet that had been provided by the father to facilitate the video calls and that the stepfather claimed was Agarbage,@ and confiscating gifts from the father. The mother and the stepfather also repeatedly refused to cooperate with travel plans, and the father, among other things, had to seek a writ of habeas corpus to bring the child to the airport for a planned visit. Moreover, the mother and the stepfather disparaged the father and his family to the child and caused the child to worry that the mother would not permit him to continue a relationship with the father. This conduct was so inconsistent with the child=s best interests as to warrant awarding sole legal and physical custody to the father, notwithstanding the fact that the mother had been the primary custodian. Further, as the court observed, at the time the forensic evaluator made his recommendation that a change of custody would be detrimental to the child, the relationship between the father and the child was Aextremely tenuous,@ whereas, due to Athe extended visits,@ they subsequently developed a Asolid relationship.@