A Full Service Law Firm

Our offices in Long Island, New York, and New Jersey are open. Consultations by appointment only. Please call or email us for assistance.

VMM FAMILY INSTITUTE WEEKLY INSIGHTS: RECENT DECISIONS 2

Agreements

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.

Child Support

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 application.

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.

Custody

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.

Hague Convention

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.

Relocation

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.

Evidence

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.

Categories