A wife moved to set aside a Stipulation of Settlement on the grounds that
it was procured by fraud and overreaching. She further claimed that the
agreement was unfair, invalid and unconscionable, because the husband
used his ability to deny the wife a religious divorce to have her sign
the agreement. The husband sought to enforce the agreement and claimed
the wife was active in the negotiations and had, in fact, requested numerous
changes and was represented by counsel. The court indicated that the factual
disputes between the parties over the wife’s involvement in the
negotiations and her representation was sufficient to have the agreement
reviewed and schedule the matter for a hearing.
A father sought to terminate his child support obligations under two theories:
Constructive Emancipation and
Parental Interference. The court held that the father failed to meet any of his burdens. As
to the claim of Constructive Emancipation, the Court found that the father
caused the breakdown in communication with the child and therefore was
barred from making the claim. The Court also denied his application because
the father had made attempts to hide his identity from the child’s
mother and waited until the child was 18 to file his petition, nearly
ten years after the mother filed her first child support petition against
him. The Court applied the theory of “laches” (a legal defense
that may be claimed in a civil matter, which asserts that there has been
an unreasonable delay in pursuing the claim) in dismissing the father’s
Right to Counsel
The mother in this case was represented by Counsel at the first four days
of trial. Months later, she informed the Court she was going to retain
new Counsel. The Court advised her to do so quickly. The mother then appeared
without Counsel at the next Court date and advised the Court she had retained
new Counsel who was unable to appear that day. The Court denied the mother’s
request for an adjournment which was reversed on appeal. The Appellate
Division held that there was nothing in the record to indicate the Supreme
Court ever advised the mother of her rights pursuant to the statute and
she was therefore deprived of a fundamental right to Counsel.
Custody and Visitation
Joseph and Frank were domestic partners who began living together. They
entered into a surrogacy contract with Joseph’s sister (Renee) to
have a child genetically related to both of them. In February 2010, she
gave birth to twins. Joseph and Frank shared parenting duties, but Joseph
did not legally adopt the children. The mother also frequently saw the
children. In May 2014, Frank suddenly refused to allow Joseph or Renee
to have any access to the children and moved to Florida. He did not inform
either one and commenced a petition for custody. Renee then petitioned
for custody and Joseph petitioned to be appointed guardian of the children.
Frank also petitioned for custody and permission to relocate to Florida.
The Family Court determined that Joseph had standing to seek custody.
Frank appealed. While Frank’s appeal was pending, the Court of Appeals
held in the
Matter of Brooke S.B. v Elizabeth A.C.C. that where a partner to a biological parent shows by clear and convincing
evidence that the parties agreed to conceive a child and raise a child
together, the non-biological, non-adoptive parent had standing to seek
visitation and custody under DRL section 70. The matter was remitted to
the Family Court for a full hearing on the custody petition, after which
the Family Court granted Joseph’s petition for custody and denied
Frank’s application. Frank then filed an appeal and the Second Department
upheld the Family Court’s determination. Frank’s refusal to
allow Joseph any contact with the children and relocation to Florida without
informing Joseph constituted willful interference with the relationship
between the children and Joseph, such that it was inconsistent with the
best interest of the children.
Family Court granted sole custody to mother and provided the father parenting
time only during therapeutic visitation. The Appellate Court noted that
after a hearing the evidence established that while the father did love
the child, the child had serious mental health disorders and the father
refused to acknowledge. Further, the father believed that the child should
not be on medication or in special education classes which was contrary to
the child’s best interests. Lastly, the father believed in corporal punishment and had a history
of hitting the child.
The mother moved for an order directing the parties’ twin boys be
returned to the Dominican Republic. The parties were married in 2010.
The mother is a citizen of the Dominican Republic and the father is a
U.S. citizen. In 2014, when the twins were a year old, the mother permitted
the father to take the children to the U.S. with the assumption that once
the mother’s visa application was approved she would join them.
However, her application was denied. After the twins arrived in the U.S.,
the father filed for divorce in the Dominican Republic and informed the
mother he intended to keep the children in the U.S. The Court so ordered
the parties’ 2000 Stipulation ordering custody to be decided by
Dominican Republic Court; under the
Hague Convention (the main international agreement that covers international parental child
abduction), the remedy required is that custody is to be decided by a
Court of the child’s country of habitual residence. Therefore, the
Court granted the mother’s motion for an Order enforcing the 2017
Stipulation and directed the boys return to the Dominican Republic at
the father’s expense.
Modification of Custody
Both parties filed petitions seeking to modify their joint custody arrangement.
The Appellate Division held that the Family Court properly denied the
father’s petition and granted sole custody to the mother. The parties
were unable to communicate with each other or engage in any decision making
regarding the medical and health matters involving the children. This
in the Court’s opinion constituted a change in circumstances. The
Court noted that while the father’s concern regarding his child’s
ADHD diagnosis was originally motivated by legitimate concerns, it became
clear that his continual disputes with the mother and health care providers
evidenced that he lost sight of what was in
the child’s best interests.
After moving to Oklahoma, the father sought sole custody of the child.
The Court noted that while the child had spent nearly her entire life
in the care of her mother, the mother moved around frequently, disregarding
for how these moves affected the child. She allowed the child to be present
at family gatherings with a convicted sex offender and exposed the child
to a convicted murderer. In addition, the child had been subject to sexual
abuse while under the mother’s care and the mother’s public
Facebook page contained provocative photos and sexually explicit quotes.
The Court acknowledged that the father’s relationship had been more
limited, but the evidence overwhelmingly established that he was far more
willing and able to provide a nurturing and stable environment for the
child. The father’s request for sole custody was granted and the
child was permitted to relocate to Oklahoma.
During a custody hearing, the Family Court properly admitted the child’s
hearsay statements regarding the father’s abuse and neglect. “Specifically
a child’s out of Court statements are admissible in a
Family Court Act - Article 6 proceeding where they pertain to abuse or neglect and are sufficiently
corroborated.” In this case, the hearsay statements were sufficiently
corroborated. Further, the Family Court also had properly precluded the
father’s proposed expert regarding parental alienation. The Family
Court did not abuse its discretion concerning this issue as the proposed
expert had not met any members of the family.