4th Department November & December 2015 Family Court Case Law Update

Published on January 20, 2016 4:25 pm by hiscockadmin in Family Court Program Blog



Matter of Aaliyah H., 2015 NY Slip Op 09761 [4th Dept 12/31/15]
The father claimed that the different parentage of the subject children resulted in separate interests and thus created a conflict of interest for the Attorney for the Children, who had represented both children at the same hearing. The Court found that this issue was not preserved for review because the father did not file a motion to remove the AFC.



Appeal Not Moot Upon Entry of Subsequent Order

Trombley v Payne, 2015 NY Slip Op 08296 [4th Dept 11/13/15]
The mother appealed from the first order dismissing her cross-petition that requested an order modifying an order of custody. The Court determined that the appeal became moot when a new petition for modification of the said custody order was filed and a second order was made following a trial in that case resulting in an award of custody to the father.


Child’s Out of Court Statements

East v Giles, 2015 NY Slip Op 09466 [4th Dept 12/23/15]
The trial court did not abuse its discretion in determining that the child’s out-of-court statements concerning alleged sexual abuse were not reliably corroborated. The petitioner’s expert witness testified about the child exhibiting sexualized behavior . While testimony concerning such behavior can serve as sufficient corroboration, in this case, the respondent’s expert was deemed to be more credible. The Family Court is afforded broad discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated, and its findings are accorded great deference.

Suspension of Visitation

Merkle v Henry, 2015 NY Slip Op 08317 [4th Dept 11/13/15]
The trial court erred in granting the AFC’s petition and ordering that visitation with the child be “at such times as may be agreed and arranged between the [father] and child,” and that the child “shall be expected to initiate contact with [the father] for visitation”. By allowing the child to dictate the terms of the visitation, the court’s order unnecessarily defeated the father’s presumed right to visitation; illegally delegated its authority to determine visitation rights; and had the practical effect of denying the father his right to visitation indefinitely without the requisite showing that visitation would be detrimental to the child.


Domestic Violence

Saunders v Stull, 2015 NY Slip Op 08601 [4th Dept 11/20/15]
Proof of the father’s domestic violence against the mother was not enough to deprive the father of custody. The record established that the trial court had fully considered the history of domestic violence before making its determination.


Extraordinary Circumstances

Stent v Schwartz, 2015 NY Slip Op 08535 [4th Dept 11/20/15].
The court found extraordinary circumstances and awarded an adult sibling custody. The parents had changed residences frequently over a period of 18 months. They were evicted from one residence and were homeless for several months (living in a tent or their vehicle). The child had poor hygiene and had missed a significant number of days in school, having changed school districts five times during the same time period. The court reasoned that the “[u]nrebutted evidence of excessive school absences [is] sufficient to establish . . . educational neglect”.

The Dissent opposed the finding, stating that “the child’s school absences and hygiene do not rise to the level of extraordinary circumstances, and petitioner’s testimony that the child would be better off living with him also does not establish extraordinary circumstances”.


Suarez v Williams, 2015 NY Slip Op 09708 [4th Dept 12/31/15]
The 4th Department had previously held that the grandparents failed to establish extraordinary circumstances to deprive the mother of custody, despite the years’ long interruption of physical custody with her. The Court reasoned that DRL § 72 (2) (b) does not ease a grandparent’s burden of showing extraordinary circumstances and found that proof of the mother’s consistent contact with the child, the grandparents constant communication with her and their reliance on her permission to make decisions defeated their claim of extraordinary circumstances.

The Court of Appeals reversed, holding that the grandparents had sustained their burden of proving extraordinary circumstances and remitted the matter for a determination of the child’s best interests. (Suarez v Williams, 2015 NY Slip Op 09231 [12/16/15].)

The 4th Department then affirmed the trial court’s previous determination that it was in the child’s best interests to
remain in the primary physical custody of the grandparents was supported by a sound and substantial basis in the record.


Grandparent Visitation

Miller v McCown-Hall, 2015 NY Slip Op 09234 [4th Dept 12/16/15]
The Court found that the trial court abused its discretion in awarding the paternal grandmother excessive visitation, including each and every Christmas, alternate Thanksgivings and summer vacation visitation. The Court found that this deprived the mother of significant quality time with the children and modified the order to reduce her holiday and summer visitation time.



Williams v. Luczynski, 2015 NY Slip Op 75851 [4th Dept 12/31/15]
The trial court properly denied the mother’s request for permission to relocate to Corning when the primary motivation for relocating was to live with her fiancé . Although her standard of living would improve if she were to live with him, her own income would not increase, and there was no testimony that he could not or would not move to Clinton. In addition, the respondent father, the child’s half sister and many relatives on both sides of the family resided in Clinton. Finally, the father’s ability to continue spending significant time with the child would be compromised.



Admissibility of Prior Unfounded Reports of Neglect

Da’Shunna M.H., 2015 NY Slip Op 08600 [4th Dept 11/20/15]
Although Social Services Law § 422 (5) (b) (i) allows prior unfounded reports of neglect to be introduced into evidence “by the subject of the report where such subject is a respondent in a proceeding”, such reports were not admitted to impeach the agency witness who had been the one to assert that no abuse had occurred during those investigations.



Makia S., 2015 NY Slip Op 09511 [4th Dept 12/31/15]
The Court dismissed the mother’s appeal of a termination of her parental rights, finding that her refused to appear at the dispositional hearing and her attorney’s presence without participation constituted a default.


Strumpf v Avery, 2015 NY Slip Op 09531 [4th Dept 12/23/15]
Upon the appeal of the trial court’s denial of motion to vacate a default order, the Court would not review whether the withdrawal of counsel without notice to the party was ineffective assistance of counsel, since it was not raised as part of the motion.



Mental Health Examination Requires Finding of Necessity

Martin v Flynn, 2015 NY Slip Op 08591 [4TH Dept 11/20/15]
The court was not authorized to order a mental health evaluation as part of an order of protection without a finding that it was necessary to further the purposes of” the order of protection.


Trial Order Amending Pleadings to Conform to Proof

Martin v Flynn, 2015 NY Slip Op 08591 [4TH Dept 11/20/15]
The trial court properly admitted evidence of conduct not alleged in the family offense petition when, upon the petitioner’s motion, it exercised its discretion to amend the allegations of the petition to conform to the proof pursuant to CPLR 3025 [c].




Figueroa v Figueroa, 2015 NY Slip Op 09776 [4th Dept 12/31/15]
The trial court erred in its determination of the father’s application for a downward modification of the order of support by finding imputed income on the basis of inadmissible evidence.


Mancuso v Mancuso ,2015 NY Slip Op 09478 [4th Dept 12/23/15]
The termination of maintenance does not automatically require a recalculation of child support. A change of circumstances based on all relevant circumstances must first be proven. The factors to be considered in determining whether there has been a change in circumstances warranting an upward modification of support are: 1) The increased needs of the children; 2) The increased cost of living resulting in greater expenses for the children,; 3) A loss of income or assets by a parent or a substantial improvement in the financial condition of a parent; and 4) The current and prior lifestyles of the children. Although an increase in the noncustodial parent’s income is a factor which may be considered when deciding whether to grant an upward modification of child support, this factor alone is not determinative.



Frye Hearing – Language Competency

Matter of Nadya S., 2015 NY Slip Op 08283 [11/13/15]
The Court found unpreserved for review the failure of the trial court to conduct a Frye hearing prior to admitting a psychological into evidence. The parent claimed on appeal that the examination should have been conducted with the use of a Spanish interpreter and that the psychologist did not properly assess English competency prior to testing. The issue was not raised prior to the admission of the report and furthermore, the psychologist testified that the parent said she was comfortable with an examination conducted in English.


Grandparent Visitation Following Adoption

Macri v Brown, 2015 NY Slip Op 08558 [4th Dept 11/20/15]
While the grandmother’s visitation rights survived a surrender and adoption, her violations of the visitation order resulted in the loss of these rights. Upon expert testimony that continued violations the court order would be harmful to the child’s relationship with the adoptive parents, the trial court ‘s termination of visitation as contrary to the child’s best interests was upheld.



Linda Gehron
Supervising Attorney
Family Court Program
Frank H. Hiscock Legal Aid Society
351 South Warren Street
Syracuse, New York 13202
Tel: (315) 218-0131

Email: LGehron@hiscocklegalaid.org