Articles Posted in Family Law

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Mother retained counsel to represent her in her efforts to obtain child support from Father. The support magistrate entered a support order against Father in the amount of $236 per week. A different magistrate subsequently modified the support order, reducing Father’s child support obligation to $25 per month. Family Court mailed the orders and accompanying findings of fact directly to Mother but did not mail the documents to Mother’s lawyer. Forty-one days after the orders were mailed by Family Court, Mother, through counsel, filed objections. Family Court denied Mother’s objections as untimely and confirmed and continued the Support Magistrate’s orders. The Appellate Division affirmed. The Court of Appeals reversed, holding that if a party is represented by counsel, the time requirements set out in Family Court Act 439(e) for objections to a support magistrate’s final order, when the order is served by mail, do not begin to run until the order is mailed to counsel. View "Odunbaku v. Odunbaku" on Justia Law

Posted in: Family Law

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At issue before the Court of Appeals in these two consolidated cases was the continued validity of the rule promulgated in Alison D. v. Virginia M., which states that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child’s parent for purposes of standing to seek visitation or custody under N.Y. Dom. Rel. Law 70(a), despite their “established relationship with the child.” The Court of Appeals overruled Alison D., holding that, where a non-biologiccal, non-adoptive partner shows by clear and convincing evidence that he or she has agreed with the biological parent or the child to conceive a child and to raise the child as co-parents, the partner has standing to seek visitation and custody under section 70. View "Brooke S.B. v Elizabeth A.C.C." on Justia Law

Posted in: Family Law

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Mother commenced divorce proceedings, seeking full custody of the couple’s two minor children. Father subsequently sought temporary sole legal custody of the children, alleging that he feared for their safety based alleged incidents involving harassment, extramarital affairs, and abuse of alcohol and prescription medication by Mother. The court granted that motion and granted Mother supervised visitation. A subsequent report by a court-appointed forensic evaluator concluded that Father was the more "psychologically stable" parent. During a subsequent appearance, the court set a briefing schedule and stated that it might “be in a position to determine custody sua sponte." The parties submitted briefs regarding Father's requested relocation and the court's ability to grant custody to Father without a hearing. One month later, the court awarded Father sole legal and physical custody, noting that, although the parties planned to continue to make attempts at reinstating supervised visitation, visitation and family therapy had been "suspended" for several months. The court did not conduct an evidentiary hearing, noting that the allegations were not controverted and the opinions of the family therapist, the court-appointed forensic evaluator, and the agency supervising visitation. The Appellate Division affirmed. The New York Court of Appeals reversed. The undefined and imprecise "adequate relevant information" standard tolerates an unacceptably-high risk of yielding custody determinations that do not conform to the best interest of a child and does not adequately protect a parent whose fundamental right is at issue. View "S.L. v J.R." on Justia Law

Posted in: Family Law

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The Appellate Division rejected the contention that consecutive commitments were not authorized by Family Court Act 454 (3) and concluded that "[g]iven the father's failure to contest the amounts due and his willful refusal to voluntarily pay them despite repeated opportunities afforded to him over more than three years, we find no abuse of discretion in the determination to run the sentences consecutively[.]" At issue is whether Family Court, in revoking two prior suspended orders of commitment, was authorized to order consecutive six-month sentences for each to run consecutively with a third six-month sentence imposed for a current violation. The court concluded that it was within the discretion of the Family Court judge to impose consecutive sentences for each willful violation. Willful violators of Family Court orders should not in effect be given immunity for past violations — conduct which would have justified incarceration at the time — solely because the trial court exercised restraint in fashioning a remedy that provided yet another opportunity to meet support obligations. Accordingly, the court affirmed the judgment. View "Matter of Columbia Cnty. Support Collection Unit v. Risley" on Justia Law

Posted in: Family Law

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Child lived with his paternal Grandparents beginning when he was less than ten days old and continuing until he was almost ten years old. In 2006, Child’s Mother was granted primary physical custody, but Child continued to reside with Grandparents. In 2012, after Father sought custody from Mother, Mother refused to return Child to Grandparents following a visit. Grandparents commenced this proceeding seeking primary physical custody of Child. Family Court granted joint custody to Grandparents and Father, with primary physical custody to Grandparents and visitation to each parent. The Appellate Division reversed and dismissed Grandparents’ petition, concluding that Grandparents lacked standing to seek custody. The Court of Appeals reversed, holding that Grandparents established their standing to seek custody of Child by demonstrating extraordinary circumstances, namely an extended disruption of Mother’s custody. Remitted. View "Suarez v. Williams" on Justia Law

Posted in: Family Law

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During the course of the parties’ matrimonial proceeding, Supreme Court issued an order (the “January 2010 order”) requiring Defendant to deposit in escrow the proceeds of the sale of properties which were the subject of a prior equitably distribution determination in favor of Plaintiff, Defendant’s former spouse. Plaintiff filed a motion to hold Defendant in civil and criminal contempt for Defendant’s failure to comply with the order. After a hearing, Supreme Court found Defendant in contempt of court for failing to comply with the January 2010 order. The Appellate Division affirmed. The Court of Appeals affirmed, holding that the evidence adduced at the hearing established a sufficient basis for the civil contempt judgment, and therefore, the Appellate Division properly affirmed Supreme Court. View "El-Dehdan v El-Dehdan" on Justia Law

Posted in: Family Law

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In 2009, Respondent regularly stayed in an apartment with his aunt, Petitioner. That same year, Petitioner filed a petition charging Respondent with various family offenses under Family Court Act article 8 and seeking an order of protection against him pursuant to Family Court Act section 842. Family Court found that Respondent was guilty of a family offense and entered a written two-year order of protection against him. While Respondent’s appeal was pending, the order of protection expired. The Appellate Division dismissed the appeal as moot. The Court of Appeals reversed, holding that the expiration of the order of protection did not moot the appeal because the order still imposed significant enduring legal and reputational consequences upon Respondent. Remitted to the Appellate Division for consideration of the appeal. View "Veronica P. v. Radcliff A." on Justia Law

Posted in: Family Law

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Petitioner, a citizen of Vietnam, was married in New York to Vu Truong, a naturalized American citizen. Petitioner was later granted the status of a conditional permanent resident in the United States on the basis of her marriage. It was subsequently discovered that Petitioner’s mother was Vu Truong’s half—sister, and Petitioner was his half-niece. An immigration judge ordered Petitioner removed from the United States on the ground that her purported marriage was void. The Board of Immigration Appeals affirmed. On review, the United States Court of Appeals for the Second Circuit asked the New York Court of Appeals whether the marriage in this case, where the husband was the half-brother of the wife’s mother, was void as incestuous under N.Y. Dom. Rel. Law 5(3). The Court of Appeals held that a marriage between a half-uncle and half-niece is not void as incestuous under section 5(3). View "Nguyen v. Holder" on Justia Law

Posted in: Family Law

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Wife and Husband were married in 1997. A week before the wedding, they each separately signed a prenuptial agreement. Neither party was present when the other executed the document, and the signatures were witnessed by different notaries public. In the acknowledgment relating to Husband's signature, a key phrase was omitted. As a result, the certificate failed to indicate that the notary public confirmed the identity of the person executing the document. In 2010, Husband filed for divorce. Wife commenced a separate action seeking a divorce and a declaration that the prenuptial agreement was unenforceable. Supreme Court denied Wife's motion for summary judgment. The Appellate Division affirmed, holding (1) the certificate of acknowledgment was defective, but (2) the deficiency could be cured after the fact, and the notary public affidavit raised a triable question of fact as to whether the prenuptial agreement had been properly acknowledged when it was signed. The Court of Appeals reversed, holding that the prenuptial agreement was invalid where, even assuming a defect in a certificate of acknowledgment could be cured, the notary public's affidavit was insufficient to raise a triable question of fact as to the propriety of the original acknowledgment procedure. View "Galetta v. Galetta" on Justia Law

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Father was an inmate in New York's correctional system. Father, who had acknowledged paternity of a child prior to his imprisonment, sought visitation with the child, who was then three years old, after Mother refused to bring the child to the prison. The family court granted Father's petition for visitation and awarded Father periodic four-hour visits at the prison with the child. The appellate division affirmed. Mother appealed, arguing that the lower courts employed an incorrect legal standard in reviewing the petition. The Court of Appeals affirmed, holding that the lower courts used the appropriate legal standard, applying the presumption in favor of visitation and considering whether Mother rebutted the presumption through showing that visitation would be harmful to the child. View "Granger v. Misercola" on Justia Law