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Monday, October 05, 2020

Recent Decisions and Legislation October 1, 2020

 

 

 

September 16, 2020

Appellate Division, Second Department

Defendants sustained physical abuse of the plaintiff constituted egregious marital fault to be factored into equitable distribution award

 In Socci v Socci, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 5223043 (Mem), 2020 N.Y. Slip Op. 04888 (2d Dept.,2020) the parties were married on February 7, 1987. In March 2008, the defendant was convicted, upon his pleas of guilty, of assault in the second degree (two counts), kidnaping in the second degree, and aggravated criminal contempt related to incidents in which he beat the parties= two daughters with a belt and chained them to a tree overnight, and forced the plaintiff into his vehicle and tried to make her pour gasoline on herself. In October 2009, the plaintiff commenced this action for a divorce. At the trial in the divorce action, the plaintiff testified as to these events, as well as numerous other incidents of physical abuse during the marriage. Supreme Court, among other things, found that the defendant=s egregious conduct in abusing the plaintiff over the course of the marriage warranted consideration in determining equitable distribution. Based, in part, on the defendant=s egregious fault, the court awarded the plaintiff 75% of the net proceeds from the sale of the marital residence and 60% of the parties= investment and bank accounts and of the marital contributions to the defendant=s deferred compensation plan. The Appellate Division affirmed. It held that the  general rule in New York is that marital fault should not be considered in determining equitable distribution. However, egregious marital fault may be considered in rare cases involving extreme conduct which shocks the conscience of the court. The marital misconduct must be Aso egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship. It found Supreme Court providently exercised its discretion in finding that the defendant=s sustained physical abuse of the plaintiff over the course of their marriage constituted egregious marital fault to be factored into the equitable distribution award in addition to other considerations, and providently exercised its discretion in fashioning the equitable distribution award (see Havell v. Islam, 301 A.D.2d at 345, 751 N.Y.S.2d 449; Brancoveanu v. Brancoveanu, 145 A.D.2d at 398, 535 N.Y.S.2d 86).

 

Court imputing income must provide a clear record of the source of  imputed income, reasons for the imputation, and the resultant calculations.

In Pilkington v Pilkington,   185 A.D.3d 844, 127 N.Y.S.3d 523, 2020 N.Y. Slip Op. 03931 (2d Dept, 2020) the parties were married in 2003 and had two children, born in 2006 and 2007, respectively. In 2013, the plaintiff commenced the action for a divorce. After the parties stipulated to the terms of custody and parental access, they agreed to have the Supreme Court decide the Afinancial, property and employment matters@ based on their submissions in lieu of a trial. The Appellate Division held that Athe court may impute income based on the parent=s employment history, future earning capacity, educational background, or money received from friends and relatives. However, the court must provide a clear record of the source of the imputed income, the reasons for the imputation, and the resultant calculations, It  agreed with the Supreme Court’s determination to impute income of $85,000 to the plaintiff based, in part, on contributions he received from his fiancée, but the amount imputed was not supported by the record .It also agreed with the court’s determination to impute income to the plaintiff based on income he received from performing side jobs. It also held that based upon the defendant=s skills and employment experience, and contributions from her family, the court improvidently exercised its discretion in imputing to her an annual income of only $25,000. Since the documents submitted by the parties were inadequate to determine the contributions from the plaintiff=s fiancée and the average income earned by the plaintiff from performing side jobs, and the parties were not afforded the opportunity to submit further documents, the matter was remitted to the Supreme Court to hold a hearing on the issue of how much income should be imputed to each party, and the calculation of a new child support obligation thereafter.

 The Appellate Division observed that pursuant to Domestic Relations Law ' 240(1Bb)(c)(7), the court may direct a parent to contribute to a child=s education. In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice.  Supreme Court providently exercised its discretion in not requiring the plaintiff to pay a pro rata share of the parties= children=s private school tuition. The defendant failed to submit evidence to establish that the education provided by the public schools in Florida would be inferior to that provided by Hillel Day School of Boca Raton, a private religious school, or that the needs of either child would be better served by their attendance at a private religious school.


September 1, 2020

Executive Order 202.60 continues the modification and suspension of laws relating to the disaster emergency.

 

The Executive Order extends the provisions tolling the Statute of Limitations until October 4, 2020. It also modifies previous executive orders to provide that the tolling of civil statutes of limitation be lifted as it relates to any action to challenge the approval by any municipal government or public authority of a construction project that includes either affordable housing or space for use by not-for-profit organizations. The EO further states that "The suspension of Section 30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction; Criminal Procedure Law 170.70 is no longer suspended, and for any appearance which has been required to be in-person may continue to be conducted virtually with the consent of the parties."

 

Appellate Division, Second Department Amends Rules of Practice


By Administrative Order issued on July 1, 2020, the Second Department has amended its local rules of practice to omit the requirement that papers in relation to motions and original proceedings be filed in both digital and hard copy format. Rather, all such papers “shall be submitted in digital format, shall comply with the technical requirements for electronically filed documents (22 NYCRR Part 1245, Appendix A), shall be served on all parties in digital format, and shall be filed by uploading through the digital portal located on the home page of the Court’s website with proof of service” (Admin Order 2020-0701). Hard copy submissions are only required when specifically requested by the Court. This amendment, by which subdivision (d) was added to section 670.4 of the Second Department’s Rules of Practice, applies to both NYSCEF matters and matters in which electronic filing via the NYSCEF system is not mandated. Exemptions are provided for exempt attorneys and exempt litigants as those terms are defined in the Electronic Filing Rules of the Appellate Division (22 NYCRR 1245.4), who must be served and must file in hard copy.


Second Department


To find a marital contract unconscionable, two elements must be shown: procedural unconscionability, and substantive unconscionability

In Cilento v Cilento, --- N.Y.S.3d ----, 2020 WL 4661442, 2020 N.Y. Slip Op. 04453 (2d Dept.,2020) the parties were married on January 20, 1996. In April 2018, the plaintiff commenced this action for a divorce seeking, inter alia, to incorporate a stipulation of settlement that the parties had entered into in August 2017 into the judgment of divorce. The defendant  moved to vacate the stipulation on the ground that it was unconscionable. The Supreme Court denied the defendant’s motion, and the Appellate Division affirmed.  As relevant to the appeal, the attorney who the defendant retained in connection with a Family Court proceeding and who he used in the past , when he needed an accurate Italian translation and understanding of legal documents was the mediator the parties thereafter selected and each paid to assist them in formulating the terms of the stipulation after two sessions with him.

            The Appellate Division held that in order to find a marital contract unconscionable, two elements must be shown: procedural unconscionability, which requires “[a] lack of meaningful choice” on the part of one of the parties, and substantive unconscionability, which requires contract terms which are “unreasonably favorable” to the other party (Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 10–12, 537 N.Y.S.2d 787, 534 N.E.2d 824). The defendant failed to establish that the stipulation was procedurally unconscionable. The stipulation was the product of a mediation conducted by an attorney who had represented the defendant on past occasions—specifically, according to the defendant, when he needed an accurate translation and understanding of legal documents. The defendant’s contention that he signed the stipulation without fully understanding its terms was wholly inconsistent with his contention that the reason he had retained the attorney  in the past was because he had used the attorney to explain and translate legal documents. It  agreed with the Supreme Court’s determination that the stipulation at issue was not procedurally unconscionable.

             The defendant also failed to show that the stipulation was substantively unconscionable. Each party relinquished significant rights under the terms of the stipulation.

 

Third Department


Only penalty Family Court may impose for willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or imprisonment

           

In Matter of Gerard P. v Paula P. --- N.Y.S.3d ----, 2020 WL 4678335, 2020 N.Y. Slip Op. 04515(3d Dept.,2020) the Appellate Division held that Family Court erred in dismissing the mother’s  modification petitions without conducting a hearing. In any modification proceeding, the threshold issue is whether there has been a change in circumstances since entry of the prior custody order that warrants a review of the issue of custody to ensure the continued best interests of the children. An evidentiary hearing is generally necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the Court has sufficient information to undertake a comprehensive independent review of the children’s best interests.

 

            The Appellate Division found that Family Court did not, as required on a motion to dismiss,  liberally construe the mother’s pro se petitions, accept her allegations as true, afford her the benefit of every possible inference or resolve credibility issues in her favor when determining the motions to dismiss. Family Court improperly made factual findings and credibility determinations, inappropriately resolving the conflicting versions of events, as set forth in the mother’s petitions and the father’s supporting affidavits, against the mother and in favor of the father. Such factual findings and credibility assessments have no place in an order resolving a motion to dismiss for failure to state a claim.

             In reversing the orders it pointed out that generally, the only available penalty that Family Court may impose for a willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or a period of imprisonment (see Judiciary Law § 753[A]; Family Ct. Act § 156). Family Court sanctioned the mother by modifying the joint legal order of custody and granting the father sole legal custody of the children without determining whether there had been a change in circumstances. In addition, Family Court failed to engage in any discernible analysis of whether a modification was in the best interests of the children.

 

Supreme Court

 

Permission to serve defendant by an alternative method (see CPLR 308(5)) FedEx International Economy mail granted

 

            In Sweet-Martinez v Martinez, --- N.Y.S.3d ----, 2020 WL 4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion for permission to serve defendant via an alternative method (see CPLR 308 [5]), namely FedEx International Economy mail to his last known address in Mexico was granted. The parties were married on November 17, 2007. Defendant was  deported to Mexico on March 8, 2011. Plaintiff commenced this action for a no-fault divorce on December 28, 2019 (see Domestic Relations Law § 170 [7]). Plaintiff argued that  service upon defendant by mail was permissible under article 10 (a) of the Hague Convention on Service Abroad, which provides: “Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.” The Court observed that although there is no case law on this precise issue in New York, other courts have found that Mexico has not outright objected to article 10 (a) of the Hague Convention permitting service of process by mail (see e.g. Intl. Transactions, Ltd v Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX 2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct App 2014]). To that end, the Court found that service upon defendant via FedEx International Economy mail to his last known address in Mexico was permissible — under both CPLR 308 (5) and article 10 (a) of the Hague Convention.


August 16, 2020


Appellate Division, Second Department

Children failed to receive meaningful assistance of counsel where AFC substituted judgment and took position contrary to wishes of children.

 In Silverman v Silverman,‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4342466, 2020 N.Y. Slip Op. 04338 (2d Dept.,2020) the Appellate Division found that the AFC improperly substituted judgment and took a position that was contrary to the wishes of her clients, the parties= children, to such a degree that the custody order should be reversed and the matter remitted to the Supreme Court,  for the appointment of a new AFC, a de novo hearing and new determination

The parties entered into a so ordered stipulation of settlement dated October 17, 2016  where they agreed to joint legal custody of the children, with residential custody to the defendant and parental access to the plaintiff. In April 2017, prior to the entry of a judgment of divorce, the plaintiff moved, inter alia, to modify the stipulation so as to award him residential custody of the children. While the plaintiff=s motion was pending, the defendant filed a family offense petition dated November 21, 2017, in the Family Court, alleging that the plaintiff strangled the youngest child. The Family Court issued a temporary order of protection against the plaintiff, which, inter alia, directed him to stay away from the children. The plaintiff successfully moved to transfer the family offense proceeding to the Supreme Court. After an in camera interview with the children, the Supreme Court dismissed the family offense petition, vacated the temporary order of protection, and directed overnight parental access with the plaintiff. After a hearing, the Supreme Court granted the plaintiff=s motion to modify the stipulation to award him residential custody of the children.

The Appellate Division observed that an AFC is required to Azealously advocate the child=s position. The Rules of the Chief Jude state that Athe [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child=s best interests= and that the [AFC] should explain fully the options available to the child, and may recommend to the child a course of action that in the [AFC]>s view would best promote the child=s interests=@ (22 NYCRR 7.2[d][2]). An AFC would be justified in substituting judgment and advocating a position that is contrary to the child=s wishes only if the AFC is Aconvinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child=s wishes is likely to result in a substantial risk of imminent serious harm to the child@ (22 NYCRR 7.2[d][3]. AIn those situations the attorney must still inform the court of the child=s articulated wishes if the child wants the attorney to do so=@( 22 NYCRR 7.2[d][3]). The Appellate Division  observed that the role of the attorney for the child is to represent the child=s wishes, not to give the opinion as the child=s attorney as to his [or her] best interests.  It found that the AFC advised the Supreme Court that the children wanted to spend daytime with the plaintiff but they wanted to spend overnights with the defendant. They wanted residential custody to remain with the defendant. The AFC informed the court of her clients= position at the beginning of the hearing. Nevertheless, the AFC=s representation was in direct contravention of her clients= stated parameters. Throughout the course of the proceedings, she failed to advocate on behalf of her clients, who were 13 and 11 years old at the time of the hearing, and who were both on the high honor roll and involved in extracurricular activities. The AFC actively pursued a course of litigation aimed at opposing their stated positions. She joined the plaintiff in opposing the introduction of evidence and witnesses in support of the defendant=s case. When the defendant sought to introduce evidence in defense of the plaintiff=s allegations that the defendant provided the children with unnecessary medical care, the AFC joined the plaintiff in opposing the introduction of the defendant=s evidence. The AFC also opposed the introduction of evidence that may have supported one child=s claim that the plaintiff attempted to strangle her. The AFC objected to the testimony of school personnel for the purpose of explaining the children=s seemingly excessive school absences. The AFC=s questions of the plaintiff during cross-examination were designed to elicit testimony in support of the plaintiff=s case, in opposition to her clients= wishes. Her questions of the psychologist chosen by the parties to provide therapeutic parental access, were aimed at supporting the plaintiff in his quest for residential custody. The AFC objected to the introduction of witnesses and evidence favorable to the defendant=s case, but she did not make similar objections to the plaintiff=s evidence. Upon successfully arguing to preclude the defendant=s proffered evidence, the AFC proceeded to use the defendant=s lack of evidence to support the plaintiff=s positions. She also failed to object to the Supreme Court’s decision to limit the amount of time for the defendant to present her case. She also failed to take an active role in the proceedings by presenting evidence and witnesses on behalf of her clients.

The Appellate Division held that AFC=s failure to support her clients= position was particularly troubling due to the allegations of domestic violence made by both the defendant and the children.  Nevertheless, she continued to argue in support of residential custody to the plaintiff, in opposition to the wishes of her clients. The record established that neither of the exceptions to the rules regarding the AFC=s duty were  present here. There was no finding that the children lacked the capacity for knowing, voluntary, and considered judgment (see 22 NYCRR 7.2[d][3]). Hence, the children failed to receive meaningful assistance of counsel. Under these circumstances, it was improper for the AFC to substitute judgment and take a position that was contrary to the wishes of the children.

 

Supreme Court

Service of summons authorized under Hague Convention on Service Abroad by FedEx International Economy mail to last known address in Mexico.

 

In Sweet‑Martinez v Martinez, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion for permission to serve defendant via an alternative method (see CPLR 308 [5]), namely FedEx International Economy mail to his last known address in Mexico was granted. The parties were married on November 17, 2007. Defendant was  deported to Mexico on March 8, 2011. Plaintiff commenced this action for a no‑fault divorce on December 28, 2019 (see Domestic Relations Law ' 170 [7]). Plaintiff argued that  service upon defendant by mail was permissible under article 10 (a) of the Hague Convention on Service Abroad, which provides: AProvided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.@ The Court observed that although there is no case law on this precise issue in New York, other courts have found that Mexico has not outright objected to article 10 (a) of the Hague Convention permitting service of process by mail (see e.g. Intl. Transactions, Ltd v Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX 2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct App 2014]). To that end, the Court found that service upon defendant via FedEx International Economy mail to his last known address in Mexico was permissible C under both CPLR 308 (5) and article 10 (a) of the Hague Convention.

 

Family Court 

Family Offense Proceeding Dismissed on grounds of Diplomatic Immunity where Respondent and Petitioner were immune from the civil process


In Matter of F.G.O.v. B.G.,.‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4379526, 2020 N.Y. Slip Op. 20184 (Fam Ct, 2020) Petitioner, who was the spouse of the Respondent sought a final order of protection. Family Court granted Respondents motion to dismiss on the  basis of Respondent=s immunity pursuant to the Vienna Convention on Diplomatic Relations (1961). Respondent stated that he was a diplomatic agent of the Permanent Mission of the Republic of Congo to the United Nations. He submitted to the Court copy of a document issued by the Permanent Mission of the Republic of Congo to the United Nations, dated October 9, 2019, which identified Respondent as a diplomatic agent; a document from the United States Mission to the United Nations which stated that the official records of the United States Mission indicated that Respondent was Anotified by the Permanent Mission of the Republic of the Congo to the United Nations in New York as First Secretary on June 20, 2016 and continues to serve in that capacity; and a United Nations Diplomatic Identification Card with his name, personal information and photograph, issued by the U.S. Department of State, which expired on June 30, 2022. The back of the card explicitly stated that the bearer of the card Aenjoys immunity from criminal jurisdiction.@ The Court held that the documentary evidence submitted, particularly the Diplomatic Identification Card, unlike an affidavit or deposition testimony, is Aessentially undeniable@ and may conclusively establish a defense to the proceeding as a matter of law.

Turning to the substance of the defense, the Court observed that the  Vienna Convention states that a Adiplomatic agent shall enjoy immunity from the civil and administrative jurisdiction [of the receiving State]@ (Vienna Convention at art. 31.1). Although there are exceptions to this immunity involving, inter alia, property in the receiving state and professional or commercial activity outside the scope of diplomatic functions, none of the exceptions are applicable here. In other words, apart from inapplicable exceptions, a diplomatic agent has absolute immunity from civil jurisdiction. The court noted that in Matter of Terrence K. (Lydia K.), 135 A.D.2d 857, 522 N.Y.S.2d 949 [2d Dept. 1987], where the Second Department found that Family Court had properly dismissed the child abuse proceeding because the respondent parents were entitled to diplomatic immunity pursuant to the Vienna Convention. The father was an attaché of the Mission of the Republic of Zimbabwe to the United Nations. The Court noted the record included a certificate stating the father was accepted by the United States Government for inclusion on the list of Members of Permanent Missions Entitled to Diplomatic Privileges and Immunities, and that the mother and child were registered as members of the household and thus share in the privileges and immunities of the father. The Court ultimately found that this evidence Aconclusively establishes that the father and his family, including the child, are immune from the civil process of the courts of this State.@ Family Court held that once diplomatic status is sufficiently established, as here, and no exceptions apply, the Court was is bound to follow the Vienna Convention and controlling precedent (see Reinoso v. Bragg, 28 Misc. 3d 1235(A), 2010 WL 3607482 [Sup. Ct., New York County 2010]). The proceeding was dismissed as the Respondent and Petitioner were immune from the civil process of the courts of this State.

Saturday, August 15, 2020

Recent Decisions and Legislation - August 1, 2020

 

August 1, 2020

 

 

An article titled “Is there a Domestic Relations Exception to Diversity Jurisdiction", by Judge George B. Daniels of the United States District Court (SDNY), and Joel R. Brandes, appears in the “Outside Counsel” column of the August 5, 2020 issue of the New York Law Journal, at page 4. Click here to read the article.  

 

 

Latest Executive Order

 

Executive Order 202.55, signed on August 5, 2020  extends the provisions tolling the Statute of Limitations until September 4, 2020.

 

 

 Appellate Division, Second Department

 

 

Court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap

 

In Matter of Glick v Ruland, 2020 WL 4197090 (2d Dept.,2020) the Appellate Division held that where combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the ceiling, the court has the discretion to apply the factors set forth in Family Court Act ' 413(1)(f), or to apply the statutory percentages, or to apply both. The Family Court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. This articulation should reflect a careful consideration of the stated basis for its exercise of discretion, the parties= circumstances, and its reasoning why there should or should not be a departure from the prescribed percentage. In addition to providing a record explanation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the factors set forth in Family Court Act ' 413(1)(f).

 

 

Respondents failed to demonstrate the existence of an operative parent‑child relationship between the child and Joseph T. only evidence was that the child called Joseph T. Adaddy@ during weekly supervised visits, and that they were affectionate with each other

 

In Matter of Luis V v Laisha PT, 184 A.D.3d 648, 125 N.Y.S.3d 133 (2d Dept.,2020) in 2017 the petitioner, filed a petition for a declaration that he was the father of the child, who was born in 2016, and an order for genetic testing. The attorney for the child and the respondent mother did not dispute that the petitioner was the biological father, but opposed the petition on equitable estoppel grounds. Family Court denied the petition, finding that he was equitably estopped from asserting paternity because it would not be in the child=s best interests, as the child had an established parent‑child relationship with the mother=s husband, the respondent Joseph T. The Appellate Division reversed. It held that the doctrine of equitable estoppel may Apreclude a man who claims to be a child=s biological father from asserting his paternity when he acquiesced in the establishment of a strong parent‑child bond between the child and another man. The doctrine protects the status interests of a child in an already recognized and operative parent‑child relationship (Matter of Juanita A. v. Kenneth Mark N., 15 N.Y.3d 1, 5, 904 N.Y.S.2d 293, 930 N.E.2d 214) and has been applied in situations where an individual has assumed the role of a father and where the petitioner putative father has neglected to assume such a role.  It found that the respondents failed to demonstrate the existence of an operative parent‑child relationship between the child and Joseph T. The only evidence of such a relationship came from the child=s foster mother, with whom he had lived since he was one year old. The foster mother testified that the child called Joseph T. Adaddy@ during weekly supervised visits, and that they were affectionate with each other at the visits, Joseph T. never appeared in court on the petition and did not testify at the hearing. Joseph T. and the child were not in a recognized and operative parent‑child relationship. It held that the court should have dismissed the equitable estoppel defense.

 

 

Family Court 

 

 

The purpose of a forensic evaluation is not to evaluate the child=s mental health

 

In  R.M. v. C.C., 2020 WL 4187263 (Table), 2020 N.Y. Slip Op. 50825(U)(Fam Ct.,2020) the Court observed that the purpose of a forensic evaluation in court for purposes of therapeutic interventions C that is the parents= responsibility. The purposes of a forensic evaluation is solely to aid the court in making a best interests determination. See Salamone‑Finchum v. McDevitt, 28 AD3d 670, 671 (2d Dept. 2006) (AThe decision whether to direct a psychological or social evaluation in a child custody dispute [to assist the court in addressing this issue] is within the sound discretion of the [Family Court]@ (quoting Matter of Paul C. v. Tracy C., 209 AD2d 955, 955 (4th Dept. 1994))); Pacheco v. Morales, 5 AD3d 387 (2d Dept. 2004)(APursuant to Family Court Act '' 251 and 252, one of the tools that a court may use in determining what is in the best interests of a child is a forensic evaluation of any person within its jurisdiction or the parent of any child within its jurisdiction.@).

 

 

July 16, 2020

 

 

Covid19 Update

 

On July 6th, the Governor signed Executive Order 202.48 to continue the modification and suspension of laws relating to the disaster emergency. The Executive Order extends the provisions tolling the Statute of Limitations until August 5, 2020 and ends the suspension of several laws related to criminal matters. 

 

Appellate Division, First Department

 

 

Former boyfriend who voluntarily provided Sperm without any restriction or agreement not permitted to raise defense to paternity of equitable estopped

 

 

            In Matter of Claudia B v Darrin M, --- N.Y.S.3d ----, 2020 WL 3848213, 2020 N.Y. Slip Op. 03861(1st Dept.,2020) after the parties relationship ended, petitioner asked respondent to donate sperm so that she could conceive a child. In October 2009, petitioner sent respondent a draft written agreement which stated that respondent would have no parental rights or responsibilities as to the child and would not be named as the father on the birth certificate, and that petitioner would not seek child support from respondent. While they were still negotiating terms, respondent donated 17 vials of semen to a fertility center. Respondent contended that he stopped participating in the endeavor, but took no further actions because he was purportedly told by the fertility center that petitioner could not use his semen samples. In March 2013, petitioner gave birth to a child. In April 2017, petitioner filed a paternity petition seeking to have respondent declared the father of her child. Respondent argued that petitioner was equitably estopped from bringing the paternity claim because the parties intended that he be a sperm donor only, without any legal rights or obligations to the child. The motion court found that respondent’s estoppel claim was inconsistent with New York law, and directed that he submit to DNA testing. After testing revealed respondent to be the father of the child, the court entered an order of filiation. On appeal, respondent argued that petitioner should be equitably estopped from seeking to have him declared the father of the child. The Appellate Division held that it need not decide whether, under New York law, estoppel is available to foreclose a mother from asserting paternity as to a known sperm donor, because even if it were, respondent’s claim would fail. To prevail on estoppel grounds, the moving party bears the burden of proving, by clear and convincing evidence, a right to the relief sought. Even assuming the truth of respondent’s factual assertions, he failed to meet his burden. Contrary to respondent’s contention, there was no binding enforceable oral or written agreement between the parties, either before or after respondent donated his sperm. It rejected Respondent’s reliance on Matter of Joseph O. v. Danielle B., 158 A.D.3d 767, 71 N.Y.S.3d 549 [2d Dept. 2018] and Matter of Christopher YY. v. Jessica ZZ., 159 A.D.3d 18, 69 N.Y.S.3d 887 [3d Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2924972 [2018]. These cases involved preconception agreements with reciprocal waivers of paternity and child support claims between a same-sex married female couple, on the one hand, and a known sperm donor on the other. The courts in those cases applied equitable estoppel to thwart the donor’s paternity claims because they threatened to harm the parent/child bonds that had developed, a fact pattern not presented here. Neither case supported respondent’s claim that an unsigned, non-final preconception agreement can be used to equitably estop a mother from asserting paternity as to a known sperm donor.

 

 

First Department holds it is proper to impute income based on access to parents vacation homes

 

 

             In DeNiro v DeNiro, --- N.Y.S.3d ----, 2020 WL 3848156 (1st Dept.,2020) the Appellate Division held that Supreme Court providently exercised its discretion in imputing income to the parties based on its credibility determinations and evidence adduced at trial. The court could consider defendants access to her father’s vacation homes, payment of travel and entertainment expenses through work, and employment at her father’s businesses in imputing income to her.

 

 

Appellate Division, Second Department

 

 

Appellate Division awards counsel fees for services rendered in pursuing counsel fee application in light of the defendant’s persistent refusal to tender a meaningful contribution to the plaintiff’s counsel fee obligations and his retaliatory cross motion.  

 

            In Marchese v Marchese, --- N.Y.S.3d ----, 2020 WL 3551814, 2020 N.Y. Slip Op. 03655 (2d Dept.,2020) a settlement was reached on the morning of the first day of trial. The overall value of plaintiff’s agreed-upon equitable distribution was over $4.6 million, inclusive of the value of the former marital residence, valued at $500,000, The defendant’s equitable distribution was approximately $10 million. The defendant agreed to pay taxable maintenance to the plaintiff of $10,000 per month through February 2020, $15,000 per month thereafter through February 2024, and $20,000 per month thereafter through February 28, 2027, at which time all maintenance would terminate.  As of the time of the execution of the agreement, the plaintiff had incurred counsel fees of approximately $516,000, of which the defendant had paid $65,000 by court order. In contrast, the defendant incurred counsel fees of more than $900,000, nearly doubling the fees incurred by the plaintiff. The defendant had also paid more than $100,000 to a court-appointed expert valuation firm. The plaintiff had retained her own expert valuation firm and the defendant had paid that firm $25,000. Supreme Court granted the plaintiff’s motion to the extent of awarding her counsel fees in the sum of only $100,000 and failed to award her any expert fees.

 

            The Appellate Division held that denial of the plaintiff’s motion to compel the defendant to pay for the entirety of her valuation expert (FRA)  fees was not a sound exercise of discretion. The defendant’s business interests were complicated and it was the plaintiff’s burden, as the non-titled spouse, to establish the extent to which these business interests constituted marital property and their value. While the Supreme Court appointed a qualified expert firm to value the defendant’s business interests, the record reflected that the plaintiff had valid reasons to question aspects of the court-appointed expert’s report as well as to obtain a lifestyle analysis. Given the complexity of the issues, the burden of proof which was upon the plaintiff, and the relative financial positions of the parties, and the quality and result of the work undertaken by FRA, the plaintiff’s submissions warranted an award to her in the sum of $71,473.60 to pay for the balance of the fees attributable to FRA’s services. In reaching this determination, it was undisputed that FRA’s work at the eve of trial led to significant increases in the valuation of the marital estate and facilitated the settlement of the matter.

 

            In awarding the plaintiff only a portion of the fees requested, the Supreme Court considered that the defendant was the monied spouse. The defendant did not rebut the presumption in favor of an award of counsel fees to the plaintiff. The Appellate Division held that the counsel fee award was inadequate. It found that Supreme Court gave undue weight to the financial resources available to the plaintiff. A less-monied spouse should not be expected to exhaust all, or a large portion, of available finite resources available, particularly where the more affluent spouse is able to pay his or her own legal fees without any substantial lifestyle impact. The plaintiff was approximately 63 years old at the time of the proceedings below, had a debilitating medical condition, and was unable to work. In contrast, the defendant was 48 years old, in good health, and had a proven track record of average annual earnings in excess of $2 million. Of the plaintiff’s equitable distribution, only approximately ½ was in the form of liquid assets, and her overall share of the distributed assets was significantly less than that of the defendant. The plaintiff’s taxable maintenance was modest in comparison with the defendant’s earnings. Given the significant disparity between the parties’ assets and incomes, as well as the significant disparity in their ages and health conditions, the defendant was in the superior position to bear the expenses of this litigation. The Court concluded that the defendant should be responsible for the balance of the plaintiff’s counsel fees and expenses, net of his prior payments, in connection with the underlying litigation, which amounted to $451,188.15.

 

            In addition, the Appellate Division awarded $30,000 counsel fees for services rendered in pursuing the  counsel fee application. In the context of this case, an award was appropriate in light of the defendant’s persistent refusal to tender a meaningful contribution to the plaintiff’s counsel fee obligations. It also considered the defendant’s making of a cross motion that sought to impose on the plaintiff responsibility for 50% of the fees of the court-appointed valuation firm and 100% of her own fees. The cross motion could only be viewed as retaliatory.

 

 

Court should not consider change in custody in the absence of an application for that relief with notice to the parent

 

In Matter of Ross v Ross, --- N.Y.S.3d ----, 2020 WL 3551747, 2020 N.Y. Slip Op. 03668 (2d Dept.,2020) mother filed a petition for custody of the child, and the father cross-petitioned for custody. The hearing on the petitions concluded on June 12, 2018, and the Family Court reserved decision. On that same day, the Family Court issued a temporary order of parental access. The father filed a violation petition alleging that the mother had violated the June 12, 2018, temporary order of parental access in that when the father attempted to exercise parental access he discovered that the mother and the child were gone. He suspected that the mother had moved with the child to Sweden. The Appellate Division held the subsequent conditional directive of the Court  that sole legal and physical custody of the child shall be transferred to the father if the mother did not return the child to New York City within 30 days was meant to punish the mother and was not based on the court’s determination of the best interests of the child. The court should not have considered a change in custody in the absence of an application for that relief with notice to the mother. The court’s conditional award of custody to the father was improper in light of the court’s determination otherwise that it was in the child’s best interests to remain in the custody of the mother.

 

 

Appellate Divison, Third Department

 

            Costs involved in providing vacation home for child to use occasionally does not justify a finding that Child Support Amount Calculated by the CSSA formula is unjust or inappropriate.

 

            In Donna E v Michael F, --- N.Y.S.3d ----, 2020 WL 3847492 (3d Dept.,2020) in determining child support Supreme Court chose to deviate from the CSSA formula, finding that the calculation of $1,024 as the husband’s basic child support obligation was unjust and inappropriate. As an explanation for doing so, the court stated its concern that mandating the full amount of support from the husband would likely have the effect of forcing the sale of the husband’s recreational cabin. This, the court reasoned, would result in the loss of an important part of his relationship with the child, thus effecting the physical and emotional needs of the child to spend quality outdoor time with the husband. Moreover, according to Supreme Court, the sale of the property would constitute a diminution of the standard of living that the child would have enjoyed had the marriage not dissolved. The wife asserted on appeal that Supreme Court erred, as there was no reasonable basis in law or fact to deviate. The Appellate Division agreed with her. The parties each testified that they struggled financially, living “paycheck to paycheck.” However, the husband did not testify that he would be forced to sell his cabin. Furthermore, this Court had “consistently held that the costs of providing suitable housing, clothing and food for a child during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount” of child support. The costs involved in providing a vacation home for a child to use occasionally do not justify a deviation. Lastly, in its discretion, the court did not conduct a Lincoln hearing and, as such, the child’s wishes or desires with regard to spending time at the cabin are unknown. Nor was there any expert testimony that the child’s physical or emotional needs would suffer if she did not spend time at the cabin. Thus, that deviation was not warranted

 

 

Court cannot impose jail sentence once contempt purged by payment before imposition of the sentence

 

In Essex County Child Support Enforcement Unit, on Behalf of Quackenbush, v Crammond, -- N.Y.S.3d ----, 2020 WL 3847470 (3d Dept.,2020) the Appellate Division held that Family Court exceeded its authority by imposing a 120–day jail sentence for violation of the prior support order and vacated the sentence where the contempt was purged before imposition of the sentence. Upon a finding of a willful violation, Family Court is authorized to impose a sentence of commitment up to six months (see Family Ct Act § 454[3][a]). “Such a sentence is in the nature of a civil contempt, which ‘may only continue until such time as the offender, if it is within his or her power, complies with the support order’”.

 

 

2010 amendment to Domestic Relations Law § 236[B][9] applies where pre-2010 child support agreement modified after effective date of amendment

 

 

            In Matter of Henry v Bell, --- N.Y.S.3d ----, 2020 WL 3847620, 2020 N.Y. Slip Op. 03829 (3d Dept.,2020) the Appellate Division held that the  2010 amendment to Domestic Relations Law § 236, under which a “court may modify an order of child support where ... three years have passed since the order was entered, last modified or adjusted” applies where a support order entered before the amendment is modified by an order made after the amendment. Accordingly, the mother’s petition for an upward modification of the father’s child support obligation was properly analyzed in the context of the 2010 amendment.

 

 

Where Court permitted mother to testify telephonically without being sworn, it was error for to rule that it would not credit the mother’s testimony given that it was not sworn

 

 

            In Matter of Burnett v Andrews-Dyke, --- N.Y.S.3d ----, 2020 WL 3847447, 2020 N.Y. Slip Op. 03838 (3d Dept.,2020) a default order was entered finding the mother in willful violation of a prior support order, a three-month period of incarceration was recommended, and the matter was referred to Family Court for confirmation. Family Court granted the mother’s application to appear telephonically at the confirmation hearing based upon her representation that she was unemployed, homeless and physically and financially unable to travel to personally appear in New York. Following the May 2019 confirmation hearing, Family Court ruled that the mother’s testimony was not competent because it was not sworn. The court issued an order confirming the finding of a willful violation and ordered that the mother be committed to jail for three months, subject to payment of a set purge amount. The Appellate Division reversed. It recognized that Family Ct. Act § 433 gives Family Court the discretion to permit a party in a child support proceeding to testify by telephone where it determines that “it would be an undue hardship for such party ... to testify ... at the [F]amily [C]ourt where the case is pending” (22 NYCRR 205.44[b]). Unsworn testimony, except in certain instances not applicable here, is generally inadmissible. Family Court’s order granting the mother’s application to appear telephonically did not condition her appearance upon testifying from a location where a notary would be available to swear her in. At the hearing, when the mother’s counsel called her to testify, Family Court noted that the mother was not in a location where a notary was present to administer an oath, but then permitted her to be questioned, without providing any indication that her answers would later be considered incompetent based upon the lack of an oath. Having permitted the mother to give unsworn testimony telephonically, it was error for Family Court to thereafter sua sponte rule, nearly 1½ months after the hearing, that it would not credit the mother’s testimony given that it was not sworn.

 

         

 

 

 

July 1, 2020

 

The “Outside Counsel” column which appears on page 5 of the July 2, 2020 edition of the New York Law Journal contains an article titled "Limiting the Scope of Representation in Family Court Proceedings, , by Joel R. Brandes and Chris McDonough, EsqClick here to read the article.

 

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Law and The Family New York Forms, 2020 Edition (New York Practice Library, 5 Volumes, July 2020) ​By Joel R. Brandes is now available from  Thomson Reuters
(For information click on this link to go to Thomson Reuters).

​​

 

 

 

Court of Appeals amends Rules of Practice effective May 27, 2020

 

The Court of Appeals has amended its Rules of Practice to require, for motions and responses to Rule 500.10 jurisdictional inquiries, submissions in digital format as companions to the printed papers filed and served in accordance with the Court’s Rules of Practice. The Court has also amended its Rules of Practice to reduce the number of printed copies that must be filed for civil motions for leave to appeal, reargument motions, and papers in opposition to those motions. The amended Rules were  effective May 27, 2020. Any responses to Rule 500.10 jurisdictional inquiries requested on or after May 27, 2020 and any motions returnable on or after June 1, 2020 must comply with the amended Rules. A full copy of the notice to the bar, and relevant portions of the proposed amended Rules, can be accessed at  http://www.nycourts.gov/ctapps/news/nottobar/nottobar05112020.pdf.

 

Pursuant to Rule 500.2(b), the Court of Appeals requires the submission of motion and opposition papers and Rule 500.10 Jurisdictional Responses in digital format. Parties who have received a motion instruction letter or Jurisdictional Inquiry letter from the Clerk’s Office should use this Companion Filing Upload Portal to submit motion and opposing papers and Rule 500.10 Jurisdictional Responses. The portal can be accessed at https://www.nycourts.gov/ctapps/courtpass/MotionUpload.aspx

          Uploading digital submissions to this Portal does not satisfy the service or filing due dates by operation of the CPLR or the Court’s Rules of Practice. The filer is responsible for meeting any applicable CPLR time limit by serving and filing as provided by the CPLR. The filer is responsible for meeting the Court’s applicable due dates by filing the required number of paper documents with the Clerk’s Office.

          Technical specifications and instructions for submission in the Court of Appeals  can be 
accessed at https://www.nycourts.gov/ctapps/courtpass/TechSpecsCFUP.htm

          This Portal is for uploading companion digital submissions of motions and Rule 500.10 Jurisdictional Responses only. Those wishing to upload companion digital submissions of briefs and record materials on pending appeals on the normal course or sua sponte merits (SSM) track (Rule 500.11) must do so through the 
Court-PASS system at  https://www.nycourts.gov/ctapps/courtpass/

 

          Court pass digital filing frequently asked questions  are posted on the Courts website at https://www.nycourts.gov/ctapps/digfilingfaq.htm

 

 

Appellate Division, Third Department

 

 

New York court may modify an out‑of‑state custody order that is valid under other state’s law but not in conformance with New York law

 

             In Matter of Paul JJ., v. Heather JJ., Respondent, 2020 WL 3271765 (3rd Dept.,2020) the Appellate Division held that  a New York court may, as a matter of law, modify an out‑of‑state custody order that is valid under the other state’s law but is not in conformance with New York law, and that the party seeking a modification of such an order must adhere to the typical standard and demonstrate a change in circumstances before the court can modify the prior order.

Under the UCCJEA, (Domestic Relations Law ' 77Bb [1]; and subject to exceptions not relevant here, a New York court must recognize and enforce a registered child custody order issued in another state, but may only modify such an order in accordance with title II of the UCCJEA, which includes Domestic Relations Law ' 76Bb (see Domestic Relations Law ' 77Be [2]; 28 USC ' 1738A). Thus, New York is required to recognize and enforce the 2007 judgment even though its visitation provision would have been improper if issued by a New York court. The U.S. Constitution=s Full Faith and Credit Clause requires all courts to give full faith and credit to the judicial proceedings in every other state (see U.S. Const, art IV, ' 1).4 When courts of this state uphold the validity of a foreign divorce decree, they must recognize all provisions of the decree, with exceptions for, among other things, the rare instance where a provision of the original decree violates the public policy of this state; in this context, public policy is not determined by reference to laws and court decisions alone, and Aforeign judgments generally should be upheld unless enforcement would result in the recognition of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense@ (Greschler v. Greschler, 51 N.Y.2d 368, 377, 434 N.Y.S.2d 194, 414 N.E.2d 694 [1980]. Although the UCCJEA provides jurisdiction for New York courts to modify an out‑of‑state order, it does not prescribe the standard to be used in a modification proceeding. Instead, we must look to the substantive law of New York and adhere to the ordinary standard for modification of a custody and visitation order. Thus, to modify the 2007 judgment, the father was first required to demonstrate a change in circumstances since the entry of that judgment that would warrant undertaking a best interests analysis.

 

 

Appellate Divison, Fourth Department

 

 

Supreme Court cannot properly find  party in criminal contempt for perjury based on  testimony in Family Court

 

In Ritchie v Ritchie, 2020 WL 3160969 (4th Dept.,2020) the Appellate Division agreed with the mother that the court erred in sua sponte directing her to Apay a $2,500 fine to the [f]ather for her perjury in this matter ... and if the fine is not permitted by law, [directing that] ... the fine [be converted] into an award of damages.@ The court did not state whether it was sanctioning the mother for frivolous conduct or for civil or criminal contempt. The court summarily punished the mother by sanctioning her after it determined that she committed perjury during her testimony before a Judicial Hearing Officer in Family Court with respect to the temporary order of protection and during her testimony at the hearing on the petition before Supreme Court. Assuming, arguendo, that perjury would support a finding of contempt, the court could not properly find the mother in criminal contempt based on her testimony in Family Court, nor could the court summarily punish the mother for civil or criminal contempt based on that testimony, inasmuch as it occurred out of the court’s Aimmediate view and presence@. Insofar as the order may be deemed to sanction the mother for civil or criminal contempt that occurred in the presence of Supreme Court, because Adue process requires that ... the contemnor be afforded >an opportunity to be heard at a meaningful time and in a meaningful manner= @, and the court failed to provide notice that it was considering finding the mother in contempt or an opportunity to be heard thereon, the court erred in imposing such sanction. The court had no authority to sanction the mother on the ground that she engaged in frivolous conduct. Assuming, arguendo, that sanctions for frivolous conduct may be based on a party=s perjury, it held that the regulation permitting the imposition of such sanctions specifically provides that it Ashall not apply to ... proceedings in the Family Court commenced under article ... 8 of the Family Court Act@ (22 NYCRR 130‑1.1 [a]. This matter was commenced in Family Court under article 8 of the Family Court Act, and thus no such sanction was authorized.

 

 

 

June 16, 2020

 

Covid19 Executive Order

Executive order 202.38 extended for another 30 days the executive order that temporarily tolls all statutes of limitations during the coronavirus public health crisis The latest order extends through July 6. It  tolls “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the Family Court act, the civil practice law and rules, the Court of Claims act, the Surrogate’s Court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof.” It also extended his previous order pertaining to remote witnessing, which clarifies the requirements needed to allow the remote signings of such documents as deeds, wills, power of attorney forms and healthcare proxies. It also extended an earlier executive order pertaining to the criminal procedure law.

 Appellate Divison, Third Department

 

New York court may  modify an out‑of‑state custody order that is valid under another state’s law but not in conformance with New York law

 

             In Matter of Paul JJ., v. Heather JJ., Respondent, 2020 WL 3271765 (3rd Dept.,2020) the Appellate Division held that  a New York court may, as a matter of law, modify an out‑of‑state custody order that is valid under the other state’s law but is not in conformance with New York law, and that the party seeking a modification of such an order must adhere to the typical standard and demonstrate a change in circumstances before the court can modify the prior order.  Under the UCCJEA, (Domestic Relations Law ' 77Bb [1]; and subject to exceptions not relevant here, a New York court must recognize and enforce a registered child custody order issued in another state, but may only modify such an order in accordance with title II of the UCCJEA, which includes Domestic Relations Law ' 76Bb (see Domestic Relations Law ' 77Be [2]; 28 USC ' 1738A). Thus, New York is required to recognize and enforce the 2007 judgment even though its visitation provision would have been improper if issued by a New York court. The U.S. Constitution=s Full Faith and Credit Clause requires all courts to give full faith and credit to the judicial proceedings in every other state (see U.S. Const, art IV, ' 1).4 When courts of this state uphold the validity of a foreign divorce decree, they must recognize all provisions of the decree, with exceptions for, among other things, the rare instance where a provision of the original decree violates the public policy of this state; in this context, public policy is not determined by reference to laws and court decisions alone, and Aforeign judgments generally should be upheld unless enforcement would result in the recognition of a transaction which is inherently vicious, wicked or immoral, and shocking to the prevailing moral sense@ (Greschler v. Greschler, 51 N.Y.2d 368, 377, 434 N.Y.S.2d 194, 414 N.E.2d 694 [1980]. Although the UCCJEA provides jurisdiction for New York courts to modify an out‑of‑state order, it does not prescribe the standard to be used in a modification proceeding. Instead, we must look to the substantive law of New York and adhere to the ordinary standard for modification of a custody and visitation order. Thus, to modify the 2007 judgment, the father was first required to demonstrate a change in circumstances since the entry of that judgment that would warrant undertaking a best interests analysis.

 

 

If  parent demonstrates that the default in neglect proceeding resulted from a deprivation of Afundamental due process rights,@ the default is a nullity and no showing of a meritorious defense is required

 

 

In Matter of Arra L..183 A.D.3d 1027, 123 N.Y.S.3d 294, 2020 N.Y. Slip Op. 02829  (3d Dept.,2020) petitioner commenced a neglect proceeding alleging that respondent had neglected her children. Respondent attended several court conferences without the benefit of counsel until, in April 2018, she was absent without explanation for a conference. Upon petitioner=s application, Family Court declared respondent in default and issued an order adjudicating her to have neglected the children. Respondent=s motion to vacate the default order was denied and the Appellate Division reversed. It held that a parent has a right Ato be present at every stage of@ a Family Ct Act article 10 proceeding as a matter of due process, but that right Ais not absolute@. Family Ct Act ' 1042 provides that Aa court may proceed with a hearing ... in a parent=s absence, so long as the subject child is represented by counsel, and the absent parent may thereafter move to vacate the resulting order and schedule a rehearing@ Vacatur of that order would ordinarily be warranted if, upon motion, the parent demonstrated Aa meritorious defense to the petition, unless ... [he or she] willfully refused to appear at the hearing@. If the parent demonstrates that the default itself resulted from a deprivation of his or her Afundamental due process rights,@ however, the default is a nullity and no showing of a meritorious defense is required. In respondent=s motion to vacate the default order of fact‑finding, she explained her absence from the conference, but failed to set forth a meritorious defense. Although respondent was arguably on notice of the April 2018 conference, she did not receive notice that a potential fact‑finding hearing might be conducted at it so as to satisfy due process. Despite the references in the order of fact‑finding to an inquest, there was no dispute that Family Court departed from Athe proper course@ of conducting a hearing in respondent=s absence by accepting the allegations in the petition as proven by virtue of respondent=s default. It would offend due process to hold that respondent Adefault[ed] in attending a hearing that she did not know was going to happen and did not, in fact, happen. @Notwithstanding the failure of respondent to articulate a meritorious defense, Family Court abused its discretion in denying respondent=s motion.

 

 

Supreme Court

 

Supreme Court Sanctions Litigant for  vexatious/abusive litigation, also known as Apaper@ or Aseparation@ abuse, by denying credit for 6 years of pendente lite payments

 

In Jessica T v Kieth T, 2020 WL 3163793 (Sup Court, 2020) the Supreme Court observed that sanctions may be awarded if conduct is frivolous or if it  "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (22 NYCRR 130‑1.1 [c] [2] ) or if such conduct "asserts material factual statements that are false". In light of the fact that the defendant abused the Plaintiff throughout the litigation with his manipulation of the court process by his blatant disregard of the truth, pressing frivolous claims, wasting court time with witnesses that had at best merely uninformed opinions, causing drawn out conferences and examinations of witnesses that were not probative, making specious arguments and accusations including parent alienation, refusing to pay timely support payments until threatened with incarceration, refusing to help save the marital home from foreclosure, harassing and annoying the Plaintiff and J., refusing to pay his share of the court‑ordered business evaluation which precluded the Plaintiff from demonstrating any potential increase in business' value during the marriage, and by prolonging this case by creating unnecessary litigation, the court sanctioned the defendant by awarding financial compensation to the Plaintiff. In order to do justice in compensate the Plaintiff for some of the injuries that the Plaintiff  suffered as a result of the Defendant's malicious, vexatious/abusive litigation, and as a sanction for the Defendant's completely frivolous conduct throughout the case and  during the trial, the Court awarded the Plaintiff ten years of maintenance payments. Furthermore, it held that  while normally the years and amounts paid during the pendente lite period are accounted for in formulating post‑divorce maintenance,  because of the Defendant's own actions and vexatious litigation which purposefully attenuated the proceeding, and the need to compensate the Plaintiff, the Defendant would receive no credit for the approximately last 6 years of pendente lite payments. In a footnote the Court described vexatious/abusive litigation, also known as Apaper@ or Aseparation@ abuse, as involving the perpetrator=s filing of frivolous motions and lawsuits to maintain a hold over his or her victim=s life after the separation and the commencement of the divorce proceeding. Litigation is the only tool left for the abuser to use to keep the victim face to face with him or her. This tool further traumatizes the victims of intimate/partner domestic violence even after the victim has managed to leave the relationship.

 

 

Appellate Divison, Fourth Department


Supreme Court cannot find litigant in criminal contempt based on testimony in Family Court, nor can court summarily punish litigant for civil or criminal contempt based on that testimony.

 

In Ritchie v Ritchie, 2020 WL 3160969 (4th Dept.,2020) the Appellate Division agreed with the mother that the court erred in sua sponte directing her to Apay a $2,500 fine to the [f]ather for her perjury in this matter ... and if the fine is not permitted by law, [directing that] ... the fine [be converted] into an award of damages.@ The court did not state whether it was sanctioning the mother for frivolous conduct or for civil or criminal contempt. The court summarily punished the mother by sanctioning her after it determined that she committed perjury during her testimony before a Judicial Hearing Officer in Family Court with respect to the temporary order of protection and during her testimony at the hearing on the petition before Supreme Court. Assuming, arguendo, that perjury would support a finding of contempt, the court could not properly find the mother in criminal contempt based on her testimony in Family Court, nor could the court summarily punish the mother for civil or criminal contempt based on that testimony, inasmuch as it occurred out of the court’s Aimmediate view and presence@. Insofar as the order may be deemed to sanction the mother for civil or criminal contempt that occurred in the presence of Supreme Court, because Adue process requires that ... the contemnor be afforded >an opportunity to be heard at a meaningful time and in a meaningful manner= @, and the court failed to provide notice that it was considering finding the mother in contempt or an opportunity to be heard thereon, the court erred in imposing such sanction. The court had no authority to sanction the mother on the ground that she engaged in frivolous conduct. Assuming, arguendo, that sanctions for frivolous conduct may be based on a party=s perjury, it held that the regulation permitting the imposition of such sanctions specifically provides that it Ashall not apply to ... proceedings in the Family Court commenced under article ... 8 of the Family Court Act@ (22 NYCRR 130‑1.1 [a]. This matter was commenced in Family Court under article 8 of the Family Court Act, and thus no such sanction was authorized.

 

 

June 1, 2020

 

Appellate Division, Second Department

 

 

It is an improvident exercise of discretion to deny a request for an adjournment where the evidence is material, the application is properly made and is not made for purposes of delay, and the need for an adjournment does not result from the failure to exercise due diligence.

 

In Markowitz v Markowitz, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 2462400 (Mem), 2020 N.Y. Slip Op. 02772 (2d Dept., 2020) prior to the trial, the Supreme Court directed a forensic evaluation, but the defendant did not consent to it being admitted into evidence at trial. The plaintiff sought to have the forensic evaluator testify at trial, and the court directed the parties to pay their respective pro rata share of the cost of the evaluator=s trial fees. The plaintiff paid her share, but the evaluator did not receive the defendant=s share and did not appear to testify at trial in the absence of full compensation. The plaintiff requested a two‑week adjournment in order to secure the evaluator=s fee and produce him as a witness, but the court denied the application. After the trial, the court awarded the defendant sole legal and physical custody of the child, with specified parental access to the plaintiff. The Appellate Divison reversed and remitted for a new trial. It held that the court should not have denied the plaintiff=s request for an adjournment in order to secure the testimony of the evaluator. Although an application for an adjournment is addressed to the sound discretion of the trial court, it is an improvident exercise of discretion to deny such a request where the evidence is material, the application is properly made and is not made for purposes of delay, and the need for an adjournment does not result from the failure to exercise due diligence. The plaintiff was not at fault for the delay since the forensic evaluator was an expert who could not be compelled to testify without appropriate compensation, and the plaintiff=s inability to produce the witness was a result of the defendant=s failure to pay.

 

 

An order denying an application to sign an order to show cause is not appealable

 

            In Curcio v Curcio, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 2462338 (Mem), 2020 N.Y. Slip Op. 02780 (2d Dept.,2020) the mother moved, by order to show cause, inter alia, in effect, to modify an order of protection. By order dated March 8, 2019, the court, declined to sign the order to show cause. The mother noticed and perfected an appeal. The Appellate Division held that an order denying an application to sign an order to show cause is not appealable (see CPLR 5704[a]). However, it deemed it appropriate to treat the notice of appeal as an application for review pursuant to CPLR 5704(a).

 

 

A child support obligation is owed to the child, not to the payee spouse       

 

            In Matter of Sultan v Khan, --- N.Y.S.3d ----, 2020 WL 2545265 (Mem), 2020 N.Y. Slip Op. 02929 (2d Dept.,2020) the Appellate Division affirmed an order which directed the father to pay child support to the maternal grandfather, who was awarded custody of the child after the mothers death, retroactive to the date of the mother’s death. It held that since a child support obligation is owed to the child, not to the payee spouse, he death of the payee spouse does not terminate the obligation. The death of the mother did not terminate the father’s continuing obligation under the order of support dated December 4, 2014, to support the children. It would be contrary to the statutory scheme of the Family Court Act and the important public policies it embodies for the father to no longer be liable for unpaid child support payments accrued after the mother’s death where, as here, “he neither had custody of the child[ren] nor sought to otherwise modify his child support obligation during the relevant period”.

 

 

Supreme Court

           

Appearance by Video Conference permitted pursuant to CPLR 3117  

 

            In Mannino v Caroso, --- N.Y.S.3d ----, 2020 WL 2545265 (Mem), 2020 N.Y. Slip Op. 02929, Unreported Disposition, Sup Ct, 2020) Supreme Court granted the plaintiff’s motion an order granting plaintiff permission to appear in this matter by video conferencing. On January 2, 1977, the parties were married in Italy. Thereafter, the parties resided together in their marital residence located at 8635 14th Avenue in Brooklyn, New York. Three children were born of the marriage, all of whom were emancipated prior to the commencement of this action. In 1984, plaintiff was convicted of various crimes in the United States and sentenced to 44 months in prison. On April 30, 1992, plaintiff, who is an Italian citizen, was deported to Italy and has remained there to the present day. According to plaintiff, given his prior criminal conviction and deportation, he is precluded from returning to the United States. The motion was granted to the extent that, pursuant to CPLR 3103 (a), plaintiff’s deposition is to be conducted via video. Further, pursuant to CPLR 3117 (a) (3), plaintiff was granted leave to employ a video transcription of his deposition testimony at trial in lieu of appearing at trial. Testimony at the trial in chief may also be via video as long as the Plaintiff makes arrangements for the video link, via skype for business or any other approved platform by the Court System in accordance with protocols in effect at that time including but not limited to a prohibition on recordings or coaching of a witness from a remote location. The motion was granted on condition he submit proof that he as actually attempted to obtain permission to enter the United States.

 

 

Children are not parties to the litigation

 

            In Clarence M v Martina M, 2020 WL 2499625 (Sup Ct 2020) Plaintiff moved for an order determining that the children were not parties to the litigation with fundamental rights to automatically review copies of the pleadings, motion papers, forensic reports, other mental reports or status reports, affidavits, affirmations, statements of net worth and/or other litigation documents without leave of court. Supreme Court agreed and held that it was not appropriate for a 14‑year‑old child to see a report prepared by a forensic evaluator related to therapeutic visitation. It held that when Rule 7.2 was enacted it was not the intent to abrogate the role of the Court.

 

 

May 16, 2020

 

The May 18, 2020 edition of the New York Law Journal contains Mr. Brandes “Law and the Family” column which is a regular feature in the New York Law Journal. The May 18, 2020 edition of his column contains an article he wrote titled “The Resurrection of Marital Fault” It appears on page 3 and in the online edition. Click here for our copy of the article.

 

Summary of Relevant Executive and Administrative Orders Related to Covid19

 

Executive Order 202.8, March 20, 2020

 

 In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020

 

Essential Proceedings Administrative Order AO/78/20 March 22, 2020

 

A. Criminal matters 1. arraignments 2. bail applications, reviews and writs 3. temporary orders of protection 4. resentencing of retained and incarcerated defendants 5. essential sex offender registration act (SORA) matters

 

B. Family Court 1. child protection intake cases involving removal applications 2. newly filed juvenile delinquency intake cases involving remand placement applications, or modification thereof 3. emergency family offense petitions/temporary orders of protection 4. orders to show cause 5. stipulations on submission

 

C. Supreme Court 1. Mental Hygiene Law (MHL) applications and hearings addressing patient retention or release 2. MHL hearings addressing the involuntary administration of medication and other medical care 3. newly filed MHL applications for an assisted outpatient treatment (AOT) plan 4. emergency applications in guardianship matters 5. temporary orders of protection (including but not limited to matters involving domestic violence) 6. emergency applications related to the coronavirus 7. emergency Election Law applications 8. extreme risk protection orders (ERPO)

 

D. Civil/Housing matters 1. applications addressing landlord lockouts (including reductions in essential services) 2. applications addressing serious code violations 3. applications addressing serious repair orders 4. applications for post-eviction relief

 

E. All Courts 1. any other matter that the court deems essential This list of essential proceedings is subject to ongoing review and amendment as necessary.

 

March 22, 2020 Chief Administrative Judge - Press Release

 

Virtual Court Operations to Commence in NYC Mid-week

New York State Courts Remain Open for Business, Maintaining All Essential and Emergency Proceedings

 

NEW YORK−Extraordinary times like these call for extraordinary measures. In response to the COVID-19 pandemic, the New York State court system is instituting various temporary measures to reduce courtroom density and stem the spread of the Coronavirus. Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks today announced that beginning on Wednesday, March 25, 2020 and Thursday, March 26, 2020, virtual court operations will commence, respectively, in New York City Criminal Court and New York City Family Court

 

NYC Family Court: Effective Thursday, March 26, 2020−in order to mitigate and contain the ongoing spread of coronavirus while at the same time continuing to provide critical emergency relief to the children and families the court serves−the New York City Family Court will hear by remote video appearances and/or by telephone the following matters:

• Child-protective intake cases involving removal applications

• Newly-filed juvenile delinquency intake cases involving remand applications

• Emergency family offense petitions

• Writ applications where there is a court order if custody or parenting time.

Additionally, due to the suspension of civil statutes of limitation by the Governor’s executive order 202.8, effective immediately, all new Court filings, either e-filed or hard copy, that are not essential matters, will NOT be accepted.

 

Executive Order 202.14 April 7, 2020

WHEREAS, on March 7, 2020, I issued Executive Order Number 202, declaring a State disaster emergency for the entire State of New York; and
WHEREAS, both travel-related cases and community contact transmission of COVID-19 have been documented in New York State and are expected to continue;
NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law, do hereby continue the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order to 202, for thirty days until May 7, 2020, except as limited below.

April 8, 2020 Chief Administrative Judge – Administrative Order (AO/85/20)

 

Pursuant to the authority vested in me, and at the direction of the Chief Judge, I hereby promulgate, effective April 13, 2020, the following additional procedures and protocols to mitigate the effects of the COVID-19 outbreak upon the users, visitors, staff, and judicial officers of the Unified Court System.

 

 1. In addition to essential court functions as set forth in AO/78/20, trial courts will address the following matters through remote or virtual court operations and offices:

Conferencing Pending Cases: Courts will review their docket of pending cases, assess matters that can be advanced or resolved through remote court conferencing, and schedule and hold conferences in such matters upon its own initiative, and where appropriate at the request of parties.

Deciding Fully Submitted Motions: Courts will decide fully submitted motions in pending cases.

Discovery and Other Ad Hoc Conferences: Courts will maintain availability during normal court hours to resolve ad hoc discovery disputes and similar matters not requiring the filing of papers.

2.               Video Technology: Video teleconferences conducted by the court, or with court participation, will be administered exclusively through Skype for Business.

3.               No New Filings in Nonessential Matters: No new nonessential matters may be filed until further notice; nor may additional papers be filed by parties in pending nonessential matters. The court shall file such orders in essential and nonessential matters as it deems appropriate.

Provisions of prior administrative orders inconsistent with this order shall be superseded by this order.

\Unified Court System Memo Dated April 30, 2020:  Next Steps to Expand Court Services

In a memo to all trial court judges and justices, Chief Administrative Judge Lawrence K. Marks advised that: (1) New motions, responsive papers to previously filed motions, and other applications (including post-judgment applications) may be filed electronically in pending cases, either through the NYSCEF e-filing system in jurisdictions that have it, or through a new electronic document delivery system that has been created for courts and jurisdictions where e-filing is unavailable; (2) Problem-solving courts may conduct virtual court conferences with counsel, court staff, and service providers, via Skype for Business; (3) Judges may resume referral of matters for alternative dispute resolution, including to neutrals on court-established panels, community dispute resolution centers, and ADR-dedicated court staff; and (4) Notices of appeal may be filed electronically, either through NYSCEF or through the new document delivery system.

Executive Order 202.14 dated April 17, 2020 Extended Executive Order 202.8 to May 7, 2020

The Governor issued Executive Order No. 202.8 on March 20, 2020, which states in pertinent part: “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as described by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” This order has been extended by Executive Order 202.14 to May 7, 2020.

Notice dated May 4, 2020: UCS Program for Electronic Delivery of Documents

In response to the COVID-19 public health emergency and the expansion of “virtual” court operations, the Unified Court System has initiated a new program to transmit digitized documents (in pdf format) to UCS courts, County Clerks, and other court-related offices around the State.

 

The Electronic Document Delivery System (“EDDS”) allows users, in a single transaction, to (1) enter basic information about a matter on a UCS webpage portal page; (2) upload one or more pdf documents; and (3) send those documents electronically to a court or clerk selected by the user. Upon receipt of the document(s) by the court, the sender will receive an email notification, together with a unique code that identifies the delivery. More detailed instructions for sending or filing documents through EDDS may be found on the EDDS FAQ page. Users/Senders should keep several important points in mind when using this system:

 

1. EDDS May be Used to File Papers with Certain Courts: At the direction of the Chief Administrative Judge, during the COVID-19 public health crisis EDDS can be used to deliver documents for filing with certain courts— including some Family Courts, Criminal Courts, Supreme Court, the Court of Claims, Surrogate’s Courts, and District Courts, and City Courts. (EDDS is not available in the New York City Criminal Court.) To use the system for filing, the sender must simply check a box on the sender information screen, complete the sending of the document(s) to the appropriate court through the EDDS system, and pay any required filing fee by credit card. The clerk’s office will review the document(s) for sufficiency and, if the clerk determines that filing prerequisites have been met, accept them for filing purposes. In the event that a clerk’s office has accepted and filed a document received through EDDS, the sender will be notified of that fact by email or publication on a public database. If no email or published notification is issued indicating that the document has been accepted for filing, the sender should not assume that the filing has occurred. The sender may contact the clerk’s office to inquire about the status of a proposed filing.

 

2. EDDS is Not a Substitute for E-filing or NYSCEF: Please note that, although EDDS may be used for filing in various courts, it does not replace and may not substitute for filing under the New York State Courts Electronic Filing System (NYSCEF). Therefore, it should not be used in matters where NYSCEF is available on either a mandatory or consensual basis. (Counties and case types where NYSCEF is available are listed on NYSCEF’s Authorized for E-Filing page.)

 

 3. EDDS Delivery is not “Service” on Other Parties: Finally, unlike NYSCEF, delivery of a document through EDDS does not constitute service of the document on any other party. If service is required, the sender must serve by some other means. In sum, EDDS is a document delivery portal that complements the UCS electronic filing system and which, upon completion and together with NYSCEF, will allow remote and immediate delivery of digitized documents throughout the Unified Court System.

 

Executive Order 202.29 dated May 7, 2020 Continues Suspension until June 7, 2020

On May 7, 2020 Governor Cuomo signed an executive order continuing  the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202.15, 202.16, 202.17, 202.18, 202.19, 202.20, and 202.21, for thirty days until June 7, 2020; and temporarily modified, beginning on the date of this Executive Order, Section 214-g of the Civil Practice Law and Rules, to the extent it allows an action to be commenced not later than one year and six months after the effective date of such section, is hereby modified to allow an action commenced pursuant to such section to be commenced not later than one year and eleven months after the effective date of such section. 

Appellate Divison, Second Department, Administrative Order 2020-506 dated May 7, 2020

ORDERS that filing and other deadlines set forth in any order of this Court, the Practice Rules of the Appellate Division (22 NYCRR part 1250), the Rules of Practice of this Court (22 NYCRR part 670), or Electronic Filing Rules of the Appellate Division (22 NYCRR part 1245), or a prior directive of the Clerk of the Court, in relation to non-actively-managed civil matters not heretofore addressed continue to be suspended until further directive of this Court. (This is a portion of the order) See https://www.nycourts.gov/courts/ad2/pdf/ADM_2020-0506.pdf

The Court continues to encourage counsel to make digital filings in all matters whenever possible, either via NYSCEF if the appeal is subject to mandatory e-filing, or through the digital portal on the Court’s website https://www.nycourts.gov/courts/AD2/Digital_Submission.shtml. The Court also encourages counsel to make digital submissions through its portal in matters currently pending in which only hard copy submissions were previously made. Submissions of digital copies will assist the Court in processing those matters expeditiously during this time where the Court must operate only while virtually. (ad2-motions@nycourts.gov

718-722-6319 (phone)

 

 

 

 

 

Appellate Division, First Department

Court terminated defendant’s non-taxable maintenance as of December 31, 2018, after considering employment prospects, modest marital lifestyle, and equitable distribution of assets where defendant received pendente lite support since the commencement of the action in 2011, a duration longer than the parties’ six-year marriage.

            In Gallen v Gallen, --- N.Y.S.3d ----, 2020 WL 2201010, 2020 N.Y. Slip Op. 02732 (1st Dept.,2020) the Appellate Division affirmed the judgment which, inter alia, awarded defendant 25% of the “marital” portion of plaintiff’s premarital Vanguard account ending in—4264, awarded defendant 50% of the value of plaintiff’s Chase account ending at –8909 at commencement without crediting plaintiff for $20,000 in post-commencement transfers, terminated defendant’s maintenance as of December 31, 2018, and awarded defendant $70,000 in counsel fees. It held that the court providently exercised its discretion in terminating defendant’s non-taxable maintenance as of December 31, 2018, after considering her employment prospects, the parties’ modest marital lifestyle, and the equitable distribution of assets. Notably, defendant had received pendente lite support since the commencement of the action in 2011, a duration longer than the parties’ six-year marriage. Under the circumstances, she was not entitled to a longer duration of maintenance.

 

Where respondent assumed the role of a parent and led the child to believe he was his father, the best interests of the child required that respondent be estopped from denying paternity.

            In Matter of Lorraine D.S. v Steven W, 180 A.D.3d 595, 120 N.Y.S.3d 297, 2020 N.Y. Slip Op. 01298 (1st Dept.,2020) the Appellate Division affirmed an order which found that Respondent was equitably estopped from denying paternity of child, and entered order of filiation declaring him to be child’s father. Clear and convincing evidence demonstrated that respondent held himself out as the father of the child and that the child, who was 15 years old at the time of the hearing, considered respondent to be his father). The child lived with respondent and his mother for approximately five years and believed that respondent was his father, and respondent never attempted to dissuade the child from believing otherwise. Even after respondent and the mother stopped living together, respondent regularly sent text messages and visited with the child, and indicated to the mother that the child would have his own space for weekend visits in respondent’s new home. Respondent attended the child’s basketball games and graduations and had the child as his best man at his wedding to his current wife. He introduced the child as his son to the guests at the wedding and referred to him as his child on social media. Under these circumstances, where respondent assumed the role of a parent and led the child to believe he was his father, the court properly concluded that the best interests of the child required that respondent be estopped from denying paternity.

 

Supervised visitation is only appropriate where there is a showing that the child’s physical safety or emotional well-being is at risk

 

            In Jeanine H v Mamadou O, --- N.Y.S.3d ----, 2020 WL 2201027, 2020 N.Y. Slip Op. 02730 (1st Dept.,2020) the Appellate Division held that because “supervision can interfere with the parent-child relationship,” it is only appropriate where there is a showing that the child’s physical safety or emotional well-being is at risk without supervision (Frank M. v. Donna W., 44 A.D.3d 495, 496, 844 N.Y.S.2d 22 [1st Dept. 2007]).

 

 

Appellate Division, Second Department

 

 

Where ICPC applies Court cannot grant petition for custody absent approval from the relevant authority in the Sister State where the child is living.

 

            In Matter of Laland v. Bookhart, --- N.Y.S.3d ----, 2020 WL 2170952 (Mem), 2020 N.Y. Slip Op. 02611 (2d Dept.,2020) the child was removed from the mother’s care due to neglect, and placed in the care and custody of the Suffolk County Department of Social Services. The father, who resided in North Carolina, commenced proceedings against the mother and DSS to obtain custody of the child. Family Court dismissed the petitions finding that following an investigation conducted in accordance with the Interstate Compact for the Placement of Children (ICPC), the relevant North Carolina authority found that the father’s home was not suitable for the child and would not consent to placing the child with the father. The Appellate Division affirmed. Where a child is in the custody of a child protective agency (see Family Ct Act § 1012[i]), and a parent living outside of New York petitions for custody of the child, the provisions of the ICPC apply. Since the child was in the custody of DSS and the father resided in North Carolina, Family Court’s properly determined that the ICPC applied and it could not grant the father’s petitions for custody absent approval from the relevant North Carolina authority, and that approval was denied.

 

 

Where a respondent in support enforcement case indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel.

 

            In Matter of Goodine v Evans, --- N.Y.S.3d ----, 2020 WL 2170984, 2020 N.Y. Slip Op. 02668 (2d Dept.,2020)  when the father first appeared before the Support Magistrate, the Support Magistrate informed the father that if he was employed, he was ineligible for assigned counsel, and that he could either represent himself or the proceeding would be adjourned for him to hire private counsel. Although the father informed the Support Magistrate that he could not afford private counsel and requested the appointment of assigned counsel, the Support Magistrate repeated that he was not entitled to appointed counsel if he was working. The matter was adjourned for a hearing, and no further advisement or inquiry was made by the court. The Appellate Division held that the Support Magistrate should have inquired further into the father’s financial circumstances, including, but not limited to, inquiring about his expenses because the father expressed a desire to have an attorney appointed. Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel. Here, despite the father’s statements at the pretrial appearance that he could not afford to hire private counsel and would like to have an attorney appointed, the Support Magistrate adjourned the matter for a hearing. Under these circumstances, the father was deprived of his right to counsel and reversal is required.

 

           

 

 Appellate Division, Fourth Department

 

Where prior order on consent awarded non-parent custody for a period of time, she must establish that extraordinary circumstances exist and that a change in circumstances had occurred since entry of the prior order

 

In Matter of Driscoll v Mack, --- N.Y.S.3d ----, 2020 WL 2090072 (Mem), 2020 N.Y. Slip Op. 02559 (4th Dept., 2020) the Appellate Division affirmed an order which awarded physical custody of the s children to the maternal grandmother. It held that the grandmother met the burden of establishing that extraordinary circumstances existed even though the prior order, which awarded her primary physical custody of the children for a period of time, was made upon consent of the parties. Once the grandmother established that extraordinary circumstances existed, she had the burden, of establishing that a change in circumstances had occurred since entry of the prior order. The Court held that to the extent that its prior cases suggested that a change in circumstances analysis is not required here, those cases should no longer be followed (see e.g. Matter of Tamika C.P. v. Denise M., 39 AD3d 1213, 1214 [4th Dept 2007]; Katherine D., 32 AD3d at 1351; Matter of Ruggieri v. Bryan, 23 AD3d 991, 992 [4th Dept 2005]).

 

 

 

 

May 1, 2020

 

Notice dated May 4, 2020: UCS Program for Electronic Delivery of Documents

 

In response to the COVID-19 public health emergency and the expansion of “virtual” court operations, the Unified Court System has initiated a new program to transmit digitized documents (in pdf format) to UCS courts, County Clerks, and other court-related offices around the State.

 

The Electronic Document Delivery System (“EDDS”) allows users, in a single transaction, to (1) enter basic information about a matter on a UCS webpage portal page; (2) upload one or more pdf documents; and (3) send those documents electronically to a court or clerk selected by the user. Upon receipt of the document(s) by the court, the sender will receive an email notification, together with a unique code that identifies the delivery. More detailed instructions for sending or filing documents through EDDS may be found on the EDDS FAQ page. Users/Senders should keep several important points in mind when using this system:

 

1. EDDS May be Used to File Papers with Certain Courts: At the direction of the Chief Administrative Judge, during the COVID-19 public health crisis EDDS can be used to deliver documents for filing with certain courts— including some Family Courts, Criminal Courts, Supreme Court, the Court of Claims, Surrogate’s Courts, and District Courts, and City Courts. (EDDS is not available in the New York City Criminal Court.) To use the system for filing, the sender must simply check a box on the sender information screen, complete the sending of the document(s) to the appropriate court through the EDDS system, and pay any required filing fee by credit card. The clerk’s office will review the document(s) for sufficiency and, if the clerk determines that filing prerequisites have been met, accept them for filing purposes. In the event that a clerk’s office has accepted and filed a document received through EDDS, the sender will be notified of that fact by email or publication on a public database. If no email or published notification is issued indicating that the document has been accepted for filing, the sender should not assume that the filing has occurred. The sender may contact the clerk’s office to inquire about the status of a proposed filing.

 

2. EDDS is Not a Substitute for E-filing or NYSCEF: Please note that, although EDDS may be used for filing in various courts, it does not replace and may not substitute for filing under the New York State Courts Electronic Filing System (NYSCEF). Therefore, it should not be used in matters where NYSCEF is available on either a mandatory or consensual basis. (Counties and case types where NYSCEF is available are listed on NYSCEF’s Authorized for E-Filing page.)

 

 3. EDDS Delivery is not “Service” on Other Parties: Finally, unlike NYSCEF, delivery of a document through EDDS does not constitute service of the document on any other party. If service is required, the sender must serve by some other means. In sum, EDDS is a document delivery portal that complements the UCS electronic filing system and which, upon completion and together with NYSCEF, will allow remote and immediate delivery of digitized documents throughout the Unified Court System.

\Unified Court System Memo Dated April 30, 2020:  Next Steps to Expand Court Services

In a memo to all trial court judges and justices, Chief Administrative Judge Lawrence K. Marks advised that: (1) New motions, responsive papers to previously filed motions, and other applications (including post-judgment applications) may be filed electronically in pending cases, either through the NYSCEF e-filing system in jurisdictions that have it, or through a new electronic document delivery system that has been created for courts and jurisdictions where e-filing is unavailable; (2) Problem-solving courts may conduct virtual court conferences with counsel, court staff, and service providers, via Skype for Business; (3) Judges may resume referral of matters for alternative dispute resolution, including to neutrals on court-established panels, community dispute resolution centers, and ADR-dedicated court staff; and (4) Notices of appeal may be filed electronically, either through NYSCEF or through the new document delivery system.

 

Executive Order Extended to May 7, 2020

 

The Governor issued Executive Order No. 202.8 on March 20, 2020, which states in pertinent part: “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as described by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” This order has been extended by Executive Order 202.14 to May 7, 2020.

Administrative Order issued on March 22, 2020

 

 

The Chief Administrative Judge of the New York State Court issued an Administrative Order on March 22, 2020, which states that, “effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters.”  The Administrative Order includes a list of “essential matters,” which applies to both paper and electronic filing cases. As relevant to family law practitioners “essential matters” includes the following:  B. Family Court:

1. child protection intake cases involving removal applications; 2. newly filed juvenile delinquency intake cases involving remand placement applications, or modification thereof;

3. emergency family offense petitions/temporary orders of protection; 4. orders to show cause; 5. stipulations on submission; C. Supreme Court:  5. temporary orders of protection (including but not limited to matters involving domestic violence)