Recent Legislation and Court Rules  
October 26, 2022

Recent Legislation – Family Court Act § 842-a

Laws of 2022, Ch 577, amended the opening paragraph Family Court Act § 842-a, subdivisions 1, 2 and 3  effective October 18, 2022  by requiring the court to inquire of the respondent and the protected party as to the existence and location of a firearm owned or possessed by the defendant upon issuance of a temporary order of protection.

Laws of 2022, Ch 577, amended Family Court Act 842-a (1) opening paragraph, effective October 18,2022, to read as follows:

     Suspension  of  firearms  license and ineligibility for such a license
   upon the issuance of a temporary order of protection. Whenever a  tempo-
   rary  order  of  protection  is issued pursuant to section eight hundred
   twenty-eight of this article, or pursuant to article  four,  five,  six,
   seven  or ten of this act the court shall inquire of the respondent and,
   outside of the presence of the respondent, the  petitioner  or,  if  the
   petitioner  is  not  the  protected  party,  any party protected by such
   order, if the court has  reason  to  believe  that  such  petitioner  or
   protected  party  would  have  actual  knowledge  or reason to know such
   information, as to the existence and location of any firearm,  rifle  or
   shotgun owned or possessed by the respondent and:

Laws of 2022, Ch 577, amended Family Court Act 842-a (2) opening paragraph, effective October 18,2022, to read as follows:

     Revocation  or  suspension  of  firearms license and ineligibility for
   such a license upon the issuance of an order of protection. Whenever  an
   order  of  protection is issued pursuant to section eight hundred forty-
   one of this part, or pursuant to article four, five, six, seven  or  ten
   of  this  act  the court shall inquire of the respondent and, outside of
   the presence of the respondent, the petitioner or, if the petitioner  is
   not the protected party, any party protected by such order, if the court
   has reason to believe that such petitioner or protected party would have
   actual knowledge or reason to know such information, as to the existence
   and  location of any firearm, rifle or shotgun owned or possessed by the
   respondent and:

Laws of 2022, Ch 577, amended Family Court Act 842-a (3) opening paragraph, effective October 18,2022, to read as follows:

     Revocation or suspension of firearms  license  and  ineligibility  for
   such  a  license upon a finding of a willful failure to obey an order of
   protection or temporary order of protection. Whenever a  respondent  has
   been  found,  pursuant to section eight hundred forty-six-a of this part
   to have willfully failed to obey an order  of  protection  or  temporary
   order  of  protection  issued  pursuant  to  this  act  or  the domestic
   relations law, or by this court or by a court of competent  jurisdiction
   in another state, territorial or tribal jurisdiction, in addition to any
   other  remedies  available pursuant to section eight hundred forty-six-a
   of this part the court shall inquire of the respondent and, outside  the
   presence  of the respondent, the petitioner or, if the petitioner is not
   the protected party, any party protected by such order, if the court has
   reason to believe that such petitioner or  protected  party  would  have
   actual knowledge or reason to know such information, as to the existence
   and  location of any firearm, rifle or shotgun owned or possessed by the
   respondent and:

July 16, 2022
 December 14, 2022

Appellate Division, First Department

Pendente lite child support award will not be disturbed absent exigent circumstances or failure to consider appropriate factors.

In Murray v Rashid, --- N.Y.S.3d ----, 2022 WL 17490799, 2022 N.Y. Slip Op. 07001 (First Dept., 2022) the Appellate Division declined to disturb the pendente lite child support  award where the husband had not shown that there were exigent circumstances necessitating a different award, nor that Supreme Court failed to consider the appropriate factors when it determined the award, which was derived from the parties’ imputed incomes.


Even if the judgment of divorce included terms that were not expressly agreed to by the parties, the parties agreement in their oral stipulation upon the essential elements created an enforceable contract and court was entitled to fill in the gaps based on objective criteria


  In Bradley v Bakal, --- N.Y.S.3d ----, 2022 WL 17490833, 2022 N.Y. Slip Op. 06988(1st Dept.,2022) the Appellate Division, inter alia,  rejected defendant’s contention that the judgment of divorce should be vacated in its entirety because the parties had not yet agreed to all the ancillary issues to the divorce, and the judgment did not reflect the parties’ in-court oral stipulation. The record made clear that the parties’ in-court oral stipulation was intended to resolve all ancillary issues of the divorce. Even if the judgment of divorce included terms that were not expressly agreed to by the parties, upon review of the oral stipulation, it concluded that the parties agreed upon the essential elements to create an enforceable contract, notwithstanding that certain discrete issues were left open to future negotiation. Since the parties were  unable to reach an agreement on these remaining issues, the court was entitled to fill in the gaps based on objective criteria (see Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 317–318, 515 N.Y.S.2d 1 [1st Dept. 1987]). It remanded the matter to the court for a determination that the terms of the judgment of divorce not expressly agreed to by the parties comport with some objective criteria.


Appellate Division, Second Department
 
 
Family Court has the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b) in a contempt proceeding based upon its determination, in effect, that the mother had engaged in frivolous conduct. A hearing was not necessary since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.

In Matter of Coward v Biddle, 2022 WL 17332496 (2d Dept.,2022) the father’s counsel moved, inter alia, to hold the mother in civil contempt for her failure to comply with a prior order of the Family Court which had directed the mother to pay attorneys’ fees directly to the father’s counsel of $3,000. Family Court found the mother in civil contempt of the order, and awarded the father’s counsel additional attorneys’ fees totaling $4,500. The Appellate Division affirmed both orders. It held that the Family Court had the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b). The court did not improvidently award the father’s counsel attorneys’ fees based upon its determination, in effect, that the mother had engaged in frivolous conduct (see 22 NYCRR 130–1.1[a]). Despite the mother’s contention to the contrary, a hearing with respect to the award of attorneys’ fees was not necessary under the circumstances, since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.


Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.

In Matter of Sydelle P. --- N.Y.S.3d ----, 2022 WL 17332493, 2022 N.Y. Slip Op. 06809 (2d Dept.,2022) the Appellate Division, held that a  finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence. Even a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding. Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.


Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.

  In Matter of Karen P. v. Alvin P., --- N.Y.S.3d ----, 2022 WL 17332553 (Mem), 2022 N.Y. Slip Op. 06808 (2d Dept.,2022) a family offense proceeding the Appellate Division held that where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.
Supreme Court did not improvidently exercise its discretion in awarding the monied spouse  attorney’s fees where, among other things, plaintiff’s conduct resulted in unnecessary litigation

  In Forman v Forman, --- N.Y.S.3d ----, 2022 WL 17480735, 2022 N.Y. Slip Op. 06913 (2d Dept.,2022) the  parties stipulation of settlement  was incorporated  but not merged into a judgment of divorce dated April 2, 2019. In June 2019, the plaintiff moved to vacate the judgment of divorce and to set aside the stipulation. The Supreme Court, denied the plaintiff’s motion and awarded the defendant attorney’s fees of $6,987.50. The Appellate Division affirmed. It held that Supreme Court did not improvidently exercise its discretion in awarding the defendant attorney’s fees. The award of reasonable attorney’s fees is a matter in the court’s sound discretion, and the court may consider, inter alia, a party’s tactics that unnecessarily prolonged the litigation. While the plaintiff was the less monied spouse, the court’s award reflected consideration of the relevant factors, including that the plaintiff’s conduct resulted in unnecessary litigation. Thus, the court did not improvidently exercise its discretion in granting the defendant’s cross motion for an award of attorney’s fees.



Family Court properly included the children as protected persons on the order of protection, where he evidence demonstrated that doing so was necessary to further the purposes of protection

In Matter of Cook v Berehowsky, --- N.Y.S.3d ----, 2022 WL 17480744, 2022 N.Y. Slip Op. 06925 (2d Dept.,2022) the Appellate Divison observed that a person commits harassment in the second degree when that person, “with intent to harass, annoy or alarm another person ... strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26[1]). The intent element may be inferred from the surrounding circumstances. It held that the mother established by a fair preponderance of the evidence that the father had committed the family offense of harassment in the second degree. The mother’s testimony, which the Family Court credited, established that the father pulled a rug out from under her, causing her to fall. The father committed this act in the presence of the children, and the mother’s hand hit one of the subject children as she fell. The father’s intent to harass and alarm the mother could be inferred from the circumstances here, including his screaming before the incident and the lack of a legitimate reason for the father to pull the rug on which the mother was standing, particularly when the mother was in such close proximity to the subject children. Additionally, the Family Court properly included the children as protected persons on the order of protection, as the evidence demonstrated that doing so was “necessary to further the purposes of protection” (Family Ct Act § 842[l]; see Matter of Lengiewicz v. Lengiewicz, 167 A.D.3d 608, 609, 89 N.Y.S.3d 241; Matter of Shank v. Shank, 155 A.D.3d 875, 877, 63 N.Y.S.3d 719).
 

March 31, 2021 amendment to Family Court Act § 1046(a)(iii) which provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021.

  In Matter of Mia S v Michelle C,, --- N.Y.S.3d ----, 2022 WL 17480834, 2022 N.Y. Slip Op. 06932 (2d Dept.,2022) the Appellate Division observed that on  March 31, 2021, Family Court Act § 1046(a)(iii) was amended to provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect. It held that the March 31, 2021 amendment to Family Court Act § 1046(a)(iii) should be retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021. It observed that pursuant to Family Court Act § 1046(a)(iii), “proof that a person repeatedly misuses a drug,” under certain circumstances, constitutes “prima facie evidence that a child of ... such person is a neglected child.” Where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm.” Family Court Act § 1046(a)(iii), as amended (L 2021, ch 92, § 58), provides as follows: “(a) In any hearing under this article and article ten-A of this act: ... “(iii) proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug, or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program. Provided however, the sole fact that an individual consumes cannabis, without a separate finding that the child’s physical mental or emotional condition was impaired or is in imminent danger of becoming impaired established by a fair preponderance of the evidence shall not be sufficient to establish prima facie evidence of neglect.”
 
The Appellate Division concluded that Family Court’s finding of neglect was proper under Family Court Act § 1046(a)(iii), as amended in March 2021 was proper. In determining that the child was neglected, the Family Court did not make a finding as to whether the child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” (FCA § 1012[f][i]). Such a finding was obviated because the court relied on the presumption set forth in Family Court Act § 1046, under which “proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child” (id. § 1046[a][iii]). Thus, the order appealed from should be affirmed only if the statutory presumption was properly applied.  It held that the 2021 amendment did not preclude a determination that the petitioner established a prima facie case of neglect. The 2021 amendment should not be interpreted as preventing any reliance on the misuse of marihuana, no matter how extensive or debilitating, to establish a prima facie case of neglect. The statute still encompasses the misuse of other legal substances, such as alcoholic beverages and prescription drugs. It held that based on the plain language of the statute, the 2021 amendment does not prevent a court from finding that there has been a prima facie showing of neglect where the evidence establishes that the subject parent has, in fact, repeatedly misused marihuana in a manner that “has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality”. Such a finding is not based on “the sole fact” that the parent “consumes cannabis”.
 
The evidence presented at the fact-finding hearing, which included the testimony of the mother and her boyfriend, hospital treatment records, and other medical records, supported the Family Court’s determination that the petitioner met its burden of proving that the mother neglected the child by her misuse of marihuana in a manner and to the extent contemplated by Family Court Act § 1046(a)(iii).  In its order, the Family Court expressly determined that the mother had misused marihuana and “clearly had a substantial impairment of judgment, and/or substantial manifestation of irrationality and was disoriented and/or incompetent.” Since this finding was not based on “the sole fact” that the mother “consumes cannabis” (Family Ct Act § 1046[a][iii]), it provided a sufficient basis on which to apply the presumption of neglect arising from repeated misuse of drugs that is articulated in the statute, as amended.



Appellate Division, Third Department


Supreme Court properly denied pretrial motion for classification of assets, as separate property where the motion lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage.

In Belmonte v Belmonte, --- N.Y.S.3d ----, 2022 WL 17347194, 2022 N.Y. Slip Op. 06844 (3d Dept.,2022) an action for a divorce, the husband cross-moved for, among other things, a declaration that certain real property was separate property. Supreme Court denied the husband’s cross motion. In support of his motion, the husband submitted his own affidavit, various deeds and titles showing the titled owners of each property, and an expenditures list showing sums but lacking any detail as to how or where each sum was expended. The Appellate Division observed that the appeal lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage. It held that while it generally encourages pretrial classification of assets, under these circumstances, Supreme Court did not abuse its discretion in denying the husband’s cross motion to classify assets as separate property pretrial as additional discovery would  place the motion court in a far better position to determine this legally dispositive issue, namely, what, if any, appreciation in the value of the real property can be considered marital property.



Supreme Court


Supreme Court grants Defendants motion to  re-open the trial pursuant to CPLR 4404(b), after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception

In Gary G. v Elena A.G. ,--- N.Y.S.3d ----, 2022 WL 17482396, 2022 N.Y. Slip Op. 22373 (Sup Ct., 2022)  Supreme Court granted defendants motion to  re-open the trial pursuant to CPLR 4404(b),after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception. It rejected plaintiff argument that defendant’s reliance on CPLR §4404(b) was  inapplicable here because the Court had not issued a decision or judgment.  In support of the motion Defendant’s counsel affirmed that, his law firm e-mailed plaintiff’s counsel that defendant intended to offer certain charts pursuant to the voluminous writing exception into evidence the following day in support of her testimony regarding alleged marital debt incurred prior to commencement on her credit cards; that his law firm included a link to the proposed charts together with copies of the underlying credit card statements in said e-mail for plaintiff’s counsel’s review. Defendant’ counsel affirmed that he “inadvertently forgot” to offer “certain business records, reflecting the Defendant-Wife’s credit card debts and the parties’ marital expenditures, into evidence” on September 13, 2022.. The parties rested on September 14, 2022. 

Supreme Court observed that CPLR 4404(b) provides: (b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue. It pointed out that it is well-established that a motion pursuant to CPLR 4404(b) “must be made within 15 days after the submission of the court’s decision”. Where a CPLR 4404(b) motion is submitted more than 15 days after the court’s decision, the movant must demonstrate good cause for the delay. The standard in reviewing these applications includes the moving party demonstrating that they could not have previously discovered this evidence or that the evidence was previously inaccessible. The Court rejected plaintiff’s contention that defendant’s application pursuant to CPLR 4404(b) was fatal because no judgment or order has been issued. The unique facts and circumstances presented here clearly fell within the contemplation of CPLR 2005 relating to law office failure which provides: …the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure. Moreover, it is well-established that “[t]rial courts have the power to permit a litigant to reopen a case under appropriate circumstances” and in doing so the Court must consider “whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted.” The Court found that it was appropriate under the unique facts and circumstances presented, re-opening the trial on the limited issue of offering the credit cards and any related direct and cross-examination related to any such exhibits which may be accepted into evidence after the Court hears any relevant evidentiary objections based upon law office failure.

The court pointed out that the best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven”. CPLR 4518(a) (the “business record exception”) provides that: (a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. The voluminous writing exception (also referred to as the “Voluminous Record Rule”) “permits the admission of summaries of voluminous records or entries where, if requested, the party against whom it is offered can have access to the original data”. The voluminous writing exception is not a new principal. In Public Operating Corp. v. Weingart, the Appellate Division, First Department in 1939 wrote that:[w]hen documents introduced in evidence at a trial are voluminous and of such a character as to render it difficult for the jury to comprehend material facts without schedules containing abstracts thereof, it is within the discretion of the judge to admit such schedules provided they are based on facts in evidence, verified by the testimony of the person by whom they were prepared, and provided that the adverse party is permitted to examine them to test their correctness and to cross examine upon them before the case is submitted to the jury (257 AD 379, 382 [1 Dept.,1939]).

Family Court


Family Court holds that FCA § 1015-a allows the court to order a social services official to  transport the children in its Temporary Custody to a supervised visit, before a final order of disposition is entered


In the Matter of D.G., G.C., G.L., I.C., I.L., K.C., L.C., M.C., S.C., --- N.Y.S.3d ----, 2022 WL 17589740, 2022 N.Y. Slip Op. 22379 (Fam Ct, 2022) the Family Court observed that the Court may order a social services official, such as the Commissioner, to provide a child placed in his care with authorized services pursuant to Family Ct Act §§ 255, 1015-a and 18 NYCRR §§ 427.3(c)(1); 441.15. State regulations authorize the Petitioning Agency to make special payments on behalf of foster children for items, costs, or services that are necessary for the child but are not included in the rate for board, care, and clothing. Such payments can include expenses necessary for family visits. 18 NYCRR § 427.3(c)(1). FCA § 1015-a allows the court to order a social services official to provide or arrange for services and help in order to protect the family, rehabilitate the family, or discharge the child from foster care including visitation services. FCA § 1030 applies to cases in which subject children are in the temporary custody of the local social services district before a final order of disposition places the subject children in foster care; it provides that a parent has a right to reasonable and regularly scheduled visits and allows a parent to apply to the court for such visits. When children are placed in foster care, visitation is the most critical way for families to stay connected and to achieve family reunification. State regulations require that parents receive at least bi-weekly visits. The Family Court rejected the argument of the Petitioning Agency that an order requiring the agency to transport the children I.C. and S.C. to the second weekly supervised visit would encroach on the agency’s administrative discretion to allocate its scarce resources. The Court granted the Respondent Mother’s application to the extent that the foster care agency, Catholic Guardian Services, was directed to transport the subject children I.C. and S.C. to the second weekly supervised visit.



November 30, 2022

Appellate Division, Third Department


Navy pension credits earned prior to the marriage, but acquired during the marriage, with marital funds, were deferred compensation which was defendants separate property. However, as marital funds were utilized to purchase the pension credits, those funds were subject to equitable distribution


In Szypula v Szypula, --- N.Y.S.3d ----, 2022 WL 17168939, 2022 N.Y. Slip Op. 06664 (3d Dept.,2022) Plaintiff (wife) and defendant ( husband) were married in 1996 and had two unemancipated children. The husband was employed by the United States Navy from 1987 until 1998, earning 11 years of unvested pension credits. In 2012, the husband began employment with the United States Department of State and was given the option of “buy[ing] back” the pension benefit credits earned for his previous military service. He did so, utilizing marital funds for the purchase. In 2019, the wife commenced the action for divorce. The Supreme Court held that the Navy pension credits earned prior to the marriage, but acquired during the marriage, were marital in nature and included them in its calculation of the wife’s award of the husband’s pension. 
The Appellate Division held that Supreme Court erred in classifying that portion of the Navy pension credits earned prior to the marriage as marital property. Domestic Relations Law § 236 creates a statutory presumption that all property acquired during the marriage is marital. The burden then rests with the party asserting the separate property claim to rebut the presumption. A pension benefit is, in essence, a form of deferred compensation derived from employment and an asset of the marriage that both spouses expect to enjoy at a future date. Even though workers are unable to gain access to the money until retirement, their right to it accrues incrementally during the years of employment. An employee’s interest in such a plan, except to the extent that it is earned before marriage or after commencement of a matrimonial action, is marital property.  Whether and to what extent a pension benefit is marital or separate property is determined by the time period in which the credit for the pension was earned. Here, as nine of the 11 years of credits purchased were admittedly earned prior to the marriage, they remained defendant’s separate property. The Court noted that compensation for past services earned prior to the marriage is separate property. The nine years of premarriage Navy credits were earned outside the marriage and were  based on the fruit of the titled spouse’s sole labors. As they were not due in any way to the indirect contributions of the non-titled spouse, the wife’s contention that she was entitled to an equitable share of any “appreciation” in the value of credits that had been classified as the husband’s separate property was unpersuasive. The acquisition of the separate pension credits could not serve to transform such property into a marital asset (see Ceravolo v. DeSantis, 125 A.D.3d 113, 116, 1 N.Y.S.3d 468 [3d Dept. 2015]; Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769 [3d Dept. 2000]). However, as marital funds were utilized to purchase the pension credits, those funds were subject to equitable distribution. It remitted the matter to Supreme Court to amend the QDRO to reflect that the nine years of premarriage credit for military service from 1987 to 1996 was the husband’s separate property and to equitably distribute the marital funds utilized to purchase the credits 


Where the conduct at issue is alleged to have occurred in a private residence, in order to establish the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. 

In Matter of Kilts v Kilts 2022 WL 17168983 (3d Dept.,2022) the Appellate Division reversed an order of the family court which found that respondent had committed the family offense of disorderly conduct and issued a six-month order of protection on petitioner’s behalf. It pointed out that , “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] ... [h]e [or she] engages in fighting or in violent, tumultuous or threatening behavior” (Penal Law § 240.20[1]). Pursuant to both CPL 530.11(1) and Family Court Act § 812(1), disorderly conduct’ includes disorderly conduct not in a public place.  Yet, even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct . At the fact-finding hearing, petitioner testified that she had called the police on respondent a couple of times, and in the morning of the day respondent threatened her life, she believed she spoke with “Officer Morrison” or another sheriff’s deputy but did not have an accompanying police report. Petitioner at first stated that she never told anyone about respondent’s threat, but then stated that she told two friends about it, as well as her son-in-law. Here, petitioner failed to meet her burden of making a prima facie showing that respondent had the requisite intent to create public inconvenience, annoyance or alarm, or recklessly causing a risk of the same. Petitioner’s evidence did not establish that respondent’s actions were public in a manner that would support such a finding. Respondent’s threat against petitioner’s life would have undoubtedly caused public disorder if others had heard the threat. However, the record revealed that respondent appeared to have threatened petitioner’s life in only their company, and without having drawn the attention of others to the scene. Although the police were called on one instance, without a police report in evidence, it was impossible to determine which one of the parties – or if, in fact, a neighbor – had called the police to therefore permit a finding that respondent’s conduct rose to the level of creating a public disturbance.


The law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence.

In Matter of Sarah QQ v Raymond PP, --- N.Y.S.3d ----, 2022 WL 17168630, 2022 N.Y. Slip Op. 06659 (3d Dept.,2022) after a fact-finding hearing and a Lincoln hearing, Family Court dismissed the father’s custody modification petitions and granted the mother’s petitions, awarding her sole legal and primary physical custody of the child. On appeal the father contended that Family Court improperly excluded CPS records regarding indicated findings against the mother concerning her abuse and/or neglect of another child, which included statements by the subject child. The Appellate Division observed that although hearsay is generally not permitted, “[t]his Court has carved out an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046(a)(vi)” (Matter of Rosario WW. v. Ellen WW., 309 A.D.2d 984, 987, 765 N.Y.S.2d 710 [3d Dept. 2003]). Such testimony requires corroboration, though a  relatively low degree of corroboration is sufficient, and the requirement may be satisfied by any other evidence tending to support the reliability of the child’s statements.  At the fact-finding hearing, Family Court permitted the father to testify as to receiving notifications from CPS that the mother “has been indicated in some cases regarding her other children.” The mother then objected, stating that this was “irrelevant and immaterial” because it did not involve the subject child and was hearsay. The court overruled the objection on the basis that the other children resided in the same home as the subject child. Later during the fact-finding hearing, the father sought to admit certified records of Saratoga County Department of Social Services “pertaining to the parties and/or the child relative to these proceedings.” The mother objected on the basis of hearsay. The father contended that these records were admissible as business records or alternatively, under an exception based on indicated abuse and neglect findings. The attorney for the child also argued that the records fell within “the hearsay exception for them to be admitted.” Family Court did not allow the records into evidence on the basis of hearsay, remarking that “we aren’t here on a neglect proceeding. We’re here on a custody proceeding.... [N]o hearsay is permitted unless there’s an exception otherwise. And ... the fact that it may deal with abuse or neglect is not an exception to the hearsay rule.” The agency records that the father sought to admit were not in the record. A review of the father’s modification petition revealed that he noted CPS’s involvement with the mother and cited to such as establishing a change in circumstances. Specifically, he alleged there had been “ongoing child protective involvement in the mother’s home, that the subject child had indicated there was domestic abuse taking place in the home and that the child has reported that he is being neglected by the mother. The petition stated that “it was revealed through the CPS open investigation that the child is reporting that there is no food at the mother’s home and that he goes without meals.” Based on the foregoing, the Appellate Division held that Family Court erred in refusing to allow the CPS records into evidence based upon the rationale that no hearsay exception existed for abuse and neglect allegations in a Family Ct Act article 6 proceeding. Although this was not a Family Ct Act article 10 proceeding, the law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence. The matter was reversed and remitted to Family Court for the admission of such evidence at a new fact-finding hearing on the parties’ modification petitions.




Dismissal of custody modification petition reversed and matter remitted to a different judge where  Family Court demonstrated an inability to be fair.  Based on its comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appeared to have prejudged the case.

In Matter of Nicole B. v Franklin A , --- N.Y.S.3d ----, 2022 WL 17168800, 2022 N.Y. Slip Op. 06672 (3d Dept.,2022) the Appellate Division held that accepting the mother’s proof as true and according her the benefit of every possible favorable inference, Family Court erred in dismissing the mother’s amended custody modification petition. It found that the mother’s proof regarding injuries suffered by the child during the father’s parenting time, taken together with the mother’s improved parenting abilities and living conditions, demonstrated a change in circumstances sufficient to overcome a motion to dismiss. It agreed with the mother and the appellate attorney for the child that the matter should be remitted to a different judge. It found that Family Court demonstrated an inability to be fair at various stages of the proceeding, starting with the first appearance, where the court indicated that it was inclined to dismiss the mother’s modification petition without a hearing, and the order on appeal made clear that the court had, sua sponte, earlier dismissed several petitions filed by the mother. At the next appearance, the court again indicated that it was disinclined to modify the custody order and later, referring to the mother, stated that “the boy who cried wolf is very large and in charge of this case.” At the opening of the fact-finding hearing, after noting that it had already held several hearings regarding this child, the court stated that if it “g[o]t the feeling as we go through that the burden of that change [in circumstances] is not going to happen ... [the court is] going to cut things off.” Then, at the close of the mother’s proof, Family Court prompted the father to make a motion to dismiss the mother’s petition, which motion the court granted. Based on Family Court’s comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appeared to have prejudged the case. The matter was remitted for a new hearing before a different judge.


November 23, 2022

Appellate Division, Second Department  
 
Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances to warrant a best interest hearing to determine whether to modify an existing custody arrangement

In Matter of McDowell v Marshall, --- N.Y.S.3d ----, 2022 WL 16827201, 2022 N.Y. Slip Op. 06248 (2d Dept.,2022) the Appellate Division observed that in order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child. The best interests of the child must be determined by a review of the totality of the circumstances. Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances.  Further, where the initial custody arrangement is based upon an agreement between the parties, it is entitled to less weight than the determination by a court. The Family Court properly found that there was a change of circumstances sufficient to change the parties’ custodial arrangement, based upon, inter alia, the mother’s repetition of sexual abuse allegations when she sought medical treatment for the child in October 2019, after those allegations had been determined to be unfounded. Further, the evidence of a hostile relationship between the mother and the father indicated that joint decision-making was untenable, which was also a change of circumstances. It found that Family Court’s determination that there had been a change in circumstances requiring a transfer of primary physical custody and final decision-making authority to the father to ensure the best interests of the child had a sound and substantial basis in the record.


Appellate Division, Fourth Department


A parent’s right to be present for fact-finding and dispositional hearings in termination of parental rights cases is not absolute 

In Matter of Briana S.-S.--- N.Y.S.3d ----, 2022 WL 16847920, 2022 N.Y. Slip Op. 06337 ( 4th Dept., 2022) the Appellate Division rejected the fathers contention that the court abused its discretion in denying his attorney’s request for an adjournment when the father was not transported from the facility where he was incarcerated to the courthouse on the first day of the fact-finding hearing. It held that a parent’s right to be present for fact-finding and dispositional hearings in termination cases is not absolute. When faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child[ren] in determining whether to proceed.  Here, the court properly proceeded in the father’s absence in order to provide the children with a prompt and permanent adjudication. Although the father was not present on the first day of the hearing, he was able to assist his attorney in cross-examining the mother after she testified during her case-in-chief, and in cross-examining a caseworker during her continued testimony on the second day of the hearing; the court balanced the need for a prompt adjudication with the father’s interests in its evidentiary rulings by, inter alia, denying petitioner’s application to play an exhibit on the first day of the hearing when the father was not present; and the father’s attorney represented his interests at the hearing. Thus, the father failed to demonstrate that he suffered any prejudice as a result of his absence.  
 

A direct appeal from a summary criminal contempt adjudication is appropriately entertained where there exists an adequate record for appellate review.  

In S.P., v. M.P.,.--- N.Y.S.3d ----, 2022 WL 16847699 (Mem), 2022 N.Y. Slip Op. 06377 (4th Dept.,2022) the Appellate Division reversed and vacated an  order in this  post-divorce child custody action, that fined the mother $1,000 upon findings adjudicating her in criminal contempt pursuant to Judiciary Law § 750 (A) (3). Preliminarily, it  concluded that the mother’s challenge to the summary contempt adjudications was properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review. With respect to the merits it observed that because contempt is a drastic remedy, strict adherence to procedural requirements is mandated. It found that the court committed reversible error by failing to afford the mother the requisite opportunity, after being advised that she was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced.


“House Rules” imposed by the Supreme Court in a custody case were misguided and erroneous even assuming, arguendo, that the court had the authority to impose such rules

  In Burns v Greenjan, --- N.Y.S.3d ----, 2022 WL 17075145, 2022 N.Y. Slip Op. 06577(4th Dept.,2022) a custody modification and enforcement proceeding, at an early appearance, the court suggested imposing its “house rules” on the children and the mother until the children complied with visitation. Those rules barred the children from many activities, including leaving the mother’s home except for school and church, using cell phones and other electronic devices, engaging in any extracurricular activities, and conversing with, socializing with, or visiting family and friends. Without holding a hearing, the court issued temporary orders that increased the father’s visitation time, directed the mother to enforce that visitation, and imposed the house rules. The mother and the Attorney for the Children (AFC) subsequently requested that the court remove the house rules and hold a hearing to evaluate whether the rules and the visitation schedule were in the children’s best interests. The Appellate Division held, inter alia, that the court erred in altering the terms of the parties’ custody and visitation arrangement and in imposing its house rules without conducting a hearing to determine the children’s best interests. It reinstated the provisions of the parties agreement and remitted the matter to Supreme Court for a hearing, including a Lincoln hearing, to determine whether modification of the parties’ custody and visitation arrangement was the children’s best interests. With respect to the imposition of the court’s house rules on the mother and the children, it stated that even assuming, arguendo, that the court had the authority to impose such rules (cf. Ritchie v Ritchie, 184 AD3d 1113, 1115 [4th Dept 2020]), the record failed to demonstrate that the imposition of the house rules in this case was in the children’s best interests. 
The Appellate Division held that the court erred in refusing the AFC’s repeated requests for a Lincoln hearing and in otherwise declining to consider the children’s views in determining visitation. One of the parties’ children was a teenager throughout these proceedings, and another entered his teenage years while this matter was being litigated. Although “ ‘the express wishes of children are not controlling, they are entitled to great weight, particularly where[, as here,] their age and maturity ... make[s] their input particularly meaningful’ ” With respect to the merits, it is well settled that “[a] Lincoln hearing serves the vital purpose of allowing a court to ascertain a child’s preference and concerns, as well as corroborating information obtained during the fact-finding hearing” .
The Appellate Division rejected  the mother’s contention that the findings of contempt in appeal Nos. 2 and 5 had to be vacated because they were based on violations of the house rules. It is well settled that an appeal from a contempt order that is jurisdictionally valid does not bring up for review the prior order” (Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d 1537, 1538 [4th Dept 2012]). Thus,  the mother was bound to adhere to the orders imposing those rules “[however misguided and erroneous [they] may have been.”
 
Service of orders by the Family Court via email only, which is not a method of service provided for in Family Court Act § 1113, does not start the time to appeal to run
  
In Matter of Bukowski v Florentino, --- N.Y.S.3d ----, 2022 WL 17075465 (Mem), 2022 N.Y. Slip Op. 06606(4th Dept.,2022) a proceeding to modify visitation,  the Appellate Division stated that inasmuch as the orders in appeal Nos. 1 and 2 indicated that the grandmother may have been served the orders by the court via email only, which is not a method of service provided for in Family Court Act § 1113, and the record did not otherwise demonstrate that she was served by any of the methods authorized by the statute, it could not determine when, if ever, the time to take the appeals began to run, and thus it could not be said that the grandmother’s appeals were untimely Similarly, it could not be said that the grandmother’s appeal in appeal No. 3 was untimely inasmuch as there was no evidence in the record that the grandmother was served with the order by a party or the child’s attorney, that she received the order in court, or that the Family Court mailed the order to her.


Parties to an appeal are entitled to have the record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer or the audio recording device

In Wagner v Wagner, --- N.Y.S.3d ----, 2022 WL 17075272 (Mem), 2022 N.Y. Slip Op. 06600 (4th Dept.,2022), matrimonial action,  the Appellate Division reversed an order denying plaintiffs motion for a reconstruction hearing to reconstruct portions of the testimony of plaintiff and defendant that could not be transcribed due to malfunctions of the audio recording system. It held that parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer or the audio recording device. Here, significant portions of the testimony of plaintiff and defendant, including testimony related to child custody and certain other issues, could not be transcribed due to malfunctions of the audio recording system, which would preclude meaningful appellate review of those issues. It remitted the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed.




November 9, 2022

Appellate Division, First Department


Court deviating from the presumptive amount of temporary maintenance must explain the reasons for any deviation

In Severny v Severny, --- N.Y.S.3d ----, 2022 WL 16557211 (Mem), 2022 N.Y. Slip Op. 06094 (1st Dept.,2022) the Appellate Division, inter alia, modified the award of temporary maintenance and remanded for reconsideration where the court  followed the calculations provided in Domestic Relations Law § 236(B)(5–a) to arrive at a presumptive award of temporary maintenance, but deviated from the presumptive amount without explaining the reasons for any deviation from the result reached by the formula factors.


Appellate Division, Second Department  
 
An application for interim counsel fees by the nonmonied spouse should not be denied or deferred until after the trial, without good cause, articulated by the court in a written decision. Plaintiff waived her objections to the defendant’s failure to meet his disclosure obligations by failing to move for sanctions under CPLR 3126 before filing the note of issue. 

In Fugazy v Fugazy, --- N.Y.S.3d ----, 2022 WL 16626149, 2022 N.Y. Slip Op. 06115 (2d Dept.,2022) in March 2017, the plaintiff commenced an action for a divorce and filed a note of issue and certificate of readiness on June 20, 2018. In August 2018, after the defendant moved, inter alia, to compel the defendant to appear for a further deposition and to produce certain documents, and for an award of interim counsel fees In an order dated October 3, 2018, the court, inter alia, denied plaintiff’s cross motion to compel discovery and referred to the trial court her cross motion which was for an award of interim counsel fees. In November 2018, the defendant moved, inter alia, to quash subpoenas served by the plaintiff and for a protective order. In an order dated December 13, 2018, the Supreme Court, among other things, granted the defendant’s motion. The plaintiff appealed from, inter alia, each of these orders.
 
The Appellate Division held that taking into account all of the relevant circumstances, the Supreme Court improperly referred to the trial court that branch of the plaintiff’s cross motion which was for an award of interim counsel fees (see Domestic Relations Law § 237[a];“Because of the importance of such awards to the fundamental fairness of the proceedings, ... an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied—or deferred until after the trial, which functions as a denial—without good cause, articulated by the court in a written decision”. Here, the court erred in summarily referring that branch of the plaintiff’s cross motion which was for an award of interim counsel fees to the trial court, which functioned as a denial of that relief, and failed to articulate any reasons, much less good cause, for that determination. The evidence submitted by the plaintiff demonstrated that she was the nonmonied spouse, as the defendant earned five to seven times more income than the plaintiff in recent years. While the defendant argues that the plaintiff has funds available to her, the plaintiff “cannot be expected to exhaust all, or a large portion, of the finite resources available to her in order to pay her attorneys, particularly when the [defendant] is able to pay his own legal fees without any substantial impact upon his lifestyle. In the exercise of discretion, it awarded interim counsel fees of $75,000 subject to reallocation at trial if deemed appropriate by the court. 

The Appellate Division held that Supreme Court properly denied the plaintiff’s motion to compel the defendant to appear for a further deposition and to produce certain documents. The plaintiff was aware that the defendant had not responded to the demand for documents or appeared for a further deposition, yet still filed the note of issue and certificate of readiness without seeking relief. The plaintiff therefore waived her objections to the defendant’s failure to meet his disclosure obligations by failing to move for sanctions under CPLR 3126 before filing the note of issue.

The Appellate Division held that Supreme Court properly granted the defendant’s motion which were to quash the plaintiff’s subpoenas and for a protective order. A subpoena duces tecum may not be used for the purpose of general discovery or to ascertain the existence of evidence. Rather, the purpose of a subpoena duces tecum is ‘to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding’. Here, each of the plaintiff’s subpoenas sought information and documents similar to those sought in the plaintiff’s prior motion to compel the production of documents, which the court had denied, and the subpoenas were thus an attempt to circumvent the court’s order and improperly obtain general discovery.


Matter remitted by Appellate Division to reopen custody hearing where new developments had arisen since the orders appealed from were issued

In Matter of Baker v James . --- N.Y.S.3d ----, 2022 WL 16626216, 2022 N.Y. Slip Op. 06125 (2d Dept., 2022) the Family Court, inter alia, awarded the father sole residential custody of the child subject to the mother’s parenting time as set forth in a parental access schedule. The mother appeals. The Appellate Division observed that new developments had arisen since the orders appealed from were issued, which were brought to this Court’s attention by the attorney for the child and acknowledged by the father. These developments included the father’s incarceration, allegations of neglect against the father, and the Family Court’s issuance of an order temporarily placing the child in the custody of the child’s paternal grandmother. In light of the new developments the Appellate Division held that the record was no longer sufficient to review whether the Family Court’s determination regarding custody and parental access was in the best interests of the child. It remitted the matter to the Family Court for a reopened hearing to consider these new facts and thereafter a new determination as to custody and parental access.


Appellate Division, Fourth Department


Time to take appeal under Family Ct Act § 1113 did not start to run where the order was emailed to the father’s attorney. The statute does not provide for service by the court through email or any other electronic means and therefor the father’s appeal was not untimely.


In Matter of Grayson v. Thomas S., . --- N.Y.S.3d ----, 2022 WL 5402859, 2022 N.Y. Slip Op. 05649  (4th Dept, 2022)  the Appellate Division, inter alia, reversed the finding of neglect agreeing with the father that the evidence presented at the fact-finding hearing failed to establish by a preponderance of the evidence that he neglected the child. It rejected the argument of  petitioner and the Attorney for the Child (AFC) that the father did not take his appeal within the time period allotted by Family Court Act § 1113 and that the appeal should be dismissed as untimely. It observed that pursuant to Family Court Act § 1113, an appeal from a Family Court order “must be taken no later than thirty days after the service by a party or the child’s attorney upon the appellant of any order from which the appeal is taken, thirty days from receipt of the order by the appellant in court or thirty-five days from the mailing of the order to the appellant by the clerk of the court, whichever is earliest.” When service of the order is made by the court, the time to take an appeal does  not commence unless the order contains a statutorily required statement and there is an official notation in the court record as to the date and the manner of service of the order” (§ 1113; see Matter of Fraser v. Fraser, 185 A.D.3d 1444, 1445, 128 N.Y.S.3d 713 [4th Dept. 2020]). An appeal as of right is taken by filing the original notice of appeal with the clerk of the Family Court in which the order was made and from which the appeal is taken” (§ 1115). Here, there was no evidence in the record that the father was served with the order of fact-finding and disposition by a party or the child’s attorney, that he received the order in court, or that the Family Court mailed the order to the father. Instead, despite using a form order that provided typewritten check boxes for the two methods of service by the court mentioned in the statute (i.e., in court or by mail) (see Family Ct Act § 1113), the court crossed out the word “mailed” and edited the form to indicate that the order was emailed to, among others, the father’s attorney. The statute does not provide for service by the court through email or any other electronic means  and, contrary to the assertions of petitioner and the AFC, traditional mail and email are not indistinguishable. The statute permits court service by mail but does not provide for such service by electronic means (see § 1113). Inasmuch as the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there was no indication that he was served by any of the methods authorized by the statute, the time to take an appeal did not begin to run and the father’s appeal was not untimely.



Supreme Court

Comity denied Egyptian Judgment of Divorce where Notice and opportunity to be heard, were not provided to the Plaintiff wife in the Egyptian proceeding.

          In DAB v MA, --- N.Y.S.3d ----, 2022 WL 16731940, 2022 N.Y. Slip Op. 22341 (Sup Ct, 2022) the parties to this action for a divorce were citizens of Egypt, and both were of the Muslim faith. The Defendant moved from Egypt to the United States on October 7, 2017. Plaintiff moved from Egypt to the United States on or about April 2019. She resided in Staten Island, New York. He resided in Queens County. On or about December 2021, Defendant retained an attorney in Egypt to file a divorce proceeding against the Plaintiff in Egypt. The divorce was styled as a religious or customary divorce, with the full credit of the government of Egypt through their Ministry of Justice. While residing in the United States the defendant  executed a power of attorney, granting his attorney authority to represent him in the Egyptian divorce matter without being present. Defendant contended upon information and belief that on Wednesday, February 9, 2022, at 7:00 PM in the presence and under the authority of Abdelrahman Mohammed Jaafar, a legal authorized Clerk, or government official also known as “Maazoun,” within the District of Alraml at the “Personal Status Court”, and in the presence of two adult witnesses, the Defendant (in the within matter) through his attorney, Mamdouh Ali Ahmed, appeared in person before the Maazoun. According to Defendant’s counsel, the Egyptian Certificate of Divorce recited that both parties were Egyptian Nationals with residential addresses in Egypt. The certificate also stated that “after exhausting all means of arbitration pursuant to article 40 of the Maazounin code, Husband confirmed that he had divorced his wife”. The sole requirement was that the Husband utter that he divorced his wife, before the Maazoun and two witnesses after consummation of the marriage. Supreme Court held that the Egyptian Divorce Judgment did not preclude the Supreme Court from adjudicating the underlying divorce complaint under the laws of New York and in conformity with the principles of comity. It was uncontroverted that the Plaintiff wife had no notice that the Defendant husband had engaged a representative to appear before the Maazoun, Ministry of Justice on his behalf, for the purpose of obtaining a Judgment of Divorce. Notice and opportunity to be heard, were not provided to the Plaintiff wife in the Egyptian proceeding. Under these facts, and pursuant to the relevant case law, comity could not be granted to the Egyptian Certificate of Divorce, nor did it reach the standard to be granted comity as an in Rem divorce.



Supreme Court Awards Trial Retainer to AFC observing that . Courts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the attorney for the child’s fees
In JM, v. RM, 2022 --- N.Y.S.3d ----, 2022 WL 16704582, 2022 N.Y. Slip Op. 22339 (Sup Ct.,2022) the Attorney for the Child moved for an Order: directing that a trial retainer of $15,000 be paid to her in accordance with the Order of Appointment with regard to the pending trial which is being scheduled by the Court at the next court appearance., As of the date of her Affidavit, her retainer had not fully been paid, and there was an outstanding balance due to her. She argued that if she did not receive a trial retainer, she will have to spend multiple hours preparing for trial and participating in same without being paid. She argued that the Defendant has retained two attorneys since her appointment, but has failed to pay his full share of her retainer; that the Defendant was the monied spouse; and that her currently hourly rate is $350 per hour and a $15,000 trial retainer is appropriate. The Court noted that pursuant to the first Order Appointing an Attorney for the Child it directed that a $5,000.00 retainer be remitted to the prior AFC. After she was relieved as counsel the Court issued a second Order Appointing an Attorney for the Child dated March 29, 2022, appointing this Attorney  as the AFC. In that order it directed that a $4,000.00 retainer be remitted to her. Supreme Court granted her application pointing out that the child was entitled to representation to protect its best interests. It observed that courts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the attorney for the child’s fees (citing, inter alia, Matter of Plovnick v. Klinger, 10 A.D.3d 84, 89, 781 N.Y.S.2d 360 [2004]; see 22 NYCRR 36.4; Judiciary Law § 35 [3]; Rupp-Elmasri v. Elmasri, 8 A.D.3d 464, 778 N.Y.S.2d 289 [2004])). The Court held that the AFC was entitled to a trial retainer and that  trial retainer of $10,000.00 was an appropriate trial retainer to be paid to the AFC.  Neither party had been directed to pay 100% of the AFC’s fees or this trial retainer, and instead are paying it pursuant to the Order of Appointment, which was 70% by the Defendant and 30% by the Plaintiff.


The party seeking to restore an action to the calendar after it is dismissed has the burden of establishing “good cause” for the delay

  In Iyageh v Iyageh, --- N.Y.S.3d ----, 2022 WL 14725215, 2022 N.Y. Slip Op. 22327 (Sup. Ct.,2022) the Court denied the motion to restore a matter to the calendar where there were no unemancipated children and neither party submitted a judgment of divorce for twelve (12) years after they entered into a stipulation of settlement and proceeded to inquest. Supreme Court observed that pursuant to 22 NYCRR § 202.48 (a), a proposed judgment or order that must be settled or submitted on notice must be signed within 60 days of the decision’s signing and filing. Pursuant to 22 NYCRR § 202.48 (b), when parties fail to submit an order or judgment in a timely manner their action is to be deemed abandoned, unless there is good cause reason for the delay. Pursuant to CPLR § 3404, Supreme Court cases that are struck from the calendar and not restored within one (1) year are deemed abandoned and dismissed without costs for neglect to prosecute. A dismissed action may be restored to the calendar beyond the one (1) year of the statute if the plaintiff establishes a reasonable excuse for the failure to prosecute the action and a lack of prejudice to the defendants (Cawthon v. Cawthon, 276 A.D.2d 661, 661, 714 N.Y.S.2d 335 [2d Dept. 2000]).  The party seeking to restore an action to the calendar after it is dismissed has the burden of establishing “good cause” for the delay (Madigan v. Klumpp, 173 A.D.2d 593, 593—94, 570 N.Y.S.2d 176 [2d Dept. 1991][the Appellate Division found that the husband failed to show good cause for not submitting the judgment of divorce for over a year where he asserted he believed the wife was responsible for filing]; see also Seeman v. Seeman, 154 A.D.2d 584, 585—86, 546 N.Y.S.2d 413 (2d Dept. 1989)[no good cause found where law firm misplaced or forgot to file the judgment of divorce for more than two (2) years]). Here, plaintiff offered no explanation for his failure to file a proposed judgment of divorce packet for twelve (12) years.

Administrative Order AO/141a/22 Amended New Rules Governing Matrimonial Actions

22 NYCRR 202.16, 22 NYCRR 202.16-a,  22 NYCRR 202.16-b, and 22 NYCRR 202.18 of the Uniform Rules for the Supreme Court and the County Court (“Uniform Rules”) are the “matrimonial rules”. Effective July 1, 2022, 22 NYCRR 202.16 (the matrimonial rules) were revised to, among other things specifically incorporate 22 NYCRR Part 202 (See AO142/22, amended on June 13, 2022) which contains many of the commercial division rules effective February 1, 2021. 

On July 27, 2022, Administrative Order  AO/141a/22 revised the Uniform Civil Rules for the Supreme Court and the County Court  including harmonization with the rules governing matrimonial actions effective immediately to  supersede solely the provisions of AO/270/20 that are inconsistent with its terms and provisions. The revision corrected typographical errors in AO/141/22.


Administrative order AO 370/21, amended Rules Governing the Consensual Electronic filing Matrimonial Actions
Administrative order AO 370/21, effective December 21, 2021, contains the current list of counties in which e-filing is permitted in matrimonial actions. Except as otherwise required by AO 370/21 or its Appendix B, the consensual e-filing rules in 22 NYCRR § 202.5-b apply.  Appendix B, effective December 21, 2021 contains amended Rules Governing the Consensual Electronic filing of Matrimonial Actions in the Supreme Court.
Matrimonial actions

Matrimonial actions are defined in Administrative order AO 370/21, Appendix B as those actions set forth in CPLR § 105(p) and Domestic Relations Law § 236, as well as plenary actions for child support, custody or visitation, an order of protection or an application under the Child Parent Security Act where: the action is contested, and addresses issues including, but not limited to, alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support or the equitable distribution of property or the action is uncontested; or the action is a post-judgment application that either (1) addresses an underlying matrimonial action that was commenced electronically, or (2) is electronically initiated with the purchase of a new index number. 
No papers or documents filed by electronic means In matrimonial actions are available to the public. The existing personal service requirements in the domestic relations law, family court act, or civil practice law and rules are not abrogated. 
Forensic evaluations may not be efiled
Unless otherwise directed by the court, evaluations or investigations of the parties or a child by a forensic mental health professional (including notes) and reports by a probation service or child protective service in proceedings involving custody, visitation, neglect or abuse and other matters involving children may not be filed electronically. 
Matrimonial post-judgment applications
Service of the initiating documents in post-judgment applications subject to consensual e-filing must be effectuated in hard copy and accompanied by a notice of electronic filing (for post-judgment matrimonial proceedings).  Proof of hard copy service must be filed by electronic means. 


November 1, 2022

October 26, 2022



Court of Appeals

Court of Appeals holds that the Interstate Compact on the Placement of Children (ICPC) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.


In the Matter of D.L.,v. S.B.  --- N.E.3d ----, 2022 WL 14123151, 2022 N.Y. Slip Op. 05940 (2022) the Court of Appeals held that the Interstate Compact on the Placement of Children (ICPC) an agreement among the states to follow certain procedures in connection with sending children across state borders “for placement in foster care or as a preliminary to a possible adoption” (Social Services Law § 374–a [1] [art III] [a]) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.

Petitioner father, a North Carolina resident, and respondent mother, a New York resident, were the parents of the subject child. In 2012, respondent Suffolk County Department of Social Services (DSS) removed the child from the custody of mother, who admitted neglecting the child, and placed the child in foster care. Father exercised his right to appear in the neglect proceeding and, in 2013, an application was made under the ICPC to North Carolina for the approval of father’s home in that state as a suitable placement for the child. The relevant North Carolina authority denied the ICPC request. The child remained in foster care with the goal of reunification with mother and, according to father, he maintained contact with and continued to visit with the child. Thereafter, in 2017, the father commenced these custody proceedings, arguing that it was in the child’s best interests to award him sole custody. DSS argued that the child could not be placed with father in light of the North Carolina authority’s 2013 refusal to consent to the placement. Family Court dismissed father’s petitions without conducting a hearing. It held in pertinent part that the requirements of the ICPC applied to placement of the child with father, even though he was an out-of-state noncustodial parent, because the child was in the custody and care of DSS in New York. The Appellate Division affirmed (183 A.D.3d 565, 121 N.Y.S.3d 644 [2nd Dept. 2020]), holding that Family Court properly determined that the ICPC applied because “the child was in the custody of DSS and ... father resided in North Carolina” The Court concluded that the petitions for custody were correctly dismissed without a hearing inasmuch as the relevant North Carolina authority denied approval of father’s 2013 ICPC request. 

The Court of Appeals reversed. It observed that the ICPC is an agreement among the 50 states, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is “construed as state law” in each adopting state (McComb v. Wambaugh, 934 F.2d 474, 479 [3d Cir 1991]).The ICPC governs the “interstate placement of children” (Social Services Law § 374–a [1] [art I]). The ICPC provides at the outset that it applies when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption. Specifically, article III of the ICPC provides: “(a) No sending agency shall send ... into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article ...“(b) Prior to sending ... any child ... into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice ...” (emphasis added). (Social Services Law § 374–a [art III] [a], [b]). “Placement,” in turn, is defined as “the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution” (id. § 374–a [art II] [d]).
 
The Court of Appeals  observed that by its terms, the ICPC governs the out-of-state “placement” of children “in foster care or as a preliminary to possible adoption” (Social Services Law § 374–a [1] [art III] [a] & [b]). The language of the statute thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent. Applying the ICPC to noncustodial parents would be inconsistent with the statutory requirement that, when a child is placed pursuant to the ICPC, “[t]he sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement” (Social Services Law § 374–a [1] [art V] [a]). As the United States Court of Appeals for the Third Circuit observed, “[t]o construe the return of a child to [a] parent as a ‘placement’ within the Compact would result in the anomalous situation of imposing a financial obligation upon a sending state that supersedes parents’ duty to support their children” (McComb, 934 F.2d at 480). There is nothing in the statutory language to indicate that the ICPC was intended to apply to out-of-state parents seeking custody of their children and the statutory text confines application of the ICPC to children placed in foster care or preliminary adoptive homes. It noted that its decision in Matter of Shaida W., 85 N.Y.2d 453, 626 N.Y.S.2d 35, 649 N.E.2d 1179 [1995]) did not compel a contrary conclusion. In that case, the question before the Court was whether the ICPC applied when children, who were in the care and custody of a New York social services agency, were taken to another state by their grandmother after the agency placed the children into temporary foster care with the grandmother. Although article VIII(a) provides that the ICPC does not apply to “[t]he sending or bringing of a child into a receiving state by [a] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or [a] guardian and leaving the child with any such relative or non-agency guardian in the receiving state” (Social Services Law § 374–a [1] [art VIII] [a]), it explained that “the children were not legally ‘sent’ to California by their grandmother”. Rather, “[t]he official custodian” of the children was the “Department of Social Services of New York City,” and it was the agency that “authorized the children to be ‘sent’ ” to California within the meaning of the statute. That is, the children were sent by a social services agency to a “kinship foster care placement” in another state and, as such, this Court concluded that the ICPC applied. Here, in contrast, placing a child with an out-of-state parent did not involve foster care or adoption and, thus, Shaida W. did  not control. The Court pointed out that its reading of the ICPC as being applicable only to placement of a child for foster care or as a preliminary to adoption, and not to custody of a noncustodial parent, comports with the intent reflected in the Compact’s legislative history and the underlying statutory purpose. Although the ICPC does not apply to placement with a parent, the Family Court Act contains other effective means to ensure the safety of a child before awarding custody to an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has a broad array of powers under the Family Court Act to ensure a child’s safety.


 
Appellate Division, First Department


DRL § 237, applies to parties litigating the issue of standing as a “parent” under DRL § 70. Where the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, it was, in effect, a final order and  Petitioner was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees

In Matter of Gunn v Hamilton, --- N.Y.S.3d ----, 2022 WL 10207780, 2022 N.Y. Slip Op. 05790 (1st Dept.,2022) the Appellate Division pointed out that in Matter of Kelly G. v. Circe H., 178 A.D.3d 533, 117 N.Y.S.3d 171 (1st Dept. 2019) it determined that Domestic Relations Law § 237, in consonance with the Court of Appeals’ decision in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), applies to parties litigating the issue of standing as a “parent” under Domestic Relations Law § 70. It agreed with petitioner that the motion court’s framing of the counsel fee award as an “interim” order was incorrect. Given that the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, costs, and expenses, approximately $2.7 million, it found that the fee award was, in effect, a final order. Accordingly, petitioner, who vigorously challenged the motion, was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees. It vacated the order and remand the matter to the motion court for an evidentiary hearing on reasonable counsel fees.

The Appellate Division also vacated the finding of criminal contempt premised on petitioner’s noncompliance with a June 28, 2021 order. Even if the order were not vacated, the procedural defects apparent in this proceeding warranted reversal. The record made clear that the court held a criminal contempt proceeding. Accordingly, petitioner was entitled to the same rights afforded a criminal defendant, including a right to be heard, to have her guilt proven beyond a reasonable doubt, and to meaningful representation of counsel. Petitioner did not receive the benefit of these procedural safeguards.


 Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing

In Matter of Jose M. R., v. Arian S., --- N.Y.S.3d ----, 2022 WL 10207779, 2022 N.Y. Slip Op. 05816 (1st Dept.,2022) a family offense proceeding the Appellate Division held that Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing, as he could not have been surprised or prejudiced by his own admissions (see Matter of Oksoon K. v. Young K., 115 AD3d 486, 487 [1st Dept 2014], lv denied, 24 NY3d 902 [2014] ).


A parent who has complied with the recommended service plan has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.
 
In  Matter of Patrice H. W., --- N.Y.S.3d ----, 2022 WL 10207773, 2022 N.Y. Slip Op. 05820 (1st Dept.,2022) the Appellate Division found that the finding of permanent neglect with respect to the child Patrice was supported by clear and convincing evidence. Respondent failed to plan for the child, evidenced by her refusal to acknowledge the problems that led to the foster care placement of the child in the first place, blaming the children, the biological mother, and the agency and denying that the children were subject to sexual abuse. Regardless of whether a parent has complied with the recommended service plan, she has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.


Finding of neglect against the mother was supported by evidence establishing that she refused to enforce a final order of protection issued against her boyfriend and in favor of the child in a prior neglect proceeding

In Matter of Taveon J.,--- N.Y.S.3d ----, 2022 WL 4830386, 2022 N.Y. Slip Op. 05512 (1st Dept.,2022) the Appellate Division found that the finding of neglect against the mother was supported by a preponderance of the evidence establishing that she placed the children’s physical and psychological safety in imminent risk of impairment by refusing to enforce a final order of protection issued against her boyfriend and in favor of the child Taveon in a prior neglect proceeding. Taveon, who was then 11 years old, was heard crying on a tape of a 911 call, in which he reported that the mother’s boyfriend allegedly choked her and then threatened to kill Taveon; the caseworker also testified that Taveon was crying at the police station after the incident. This evidence established, among other things, that the mother risked Taveon’s emotional health by failing to enforce the order of protection issued on his behalf.


Appellate Division, Second Department


Where a material term of a stipulation is  left for future negotiations the agreement  constituted “a mere agreement to agree,” is unenforceable

In Pinto v Pinto, --- N.Y.S.3d ----, 2022 WL 6850257, 2022 N.Y. Slip Op. 05728 (2d Dept.,2022) the parties stipulation of settlement   that was incorporated, but not merged, into the judgment of divorce recited that it was the parties’ intention that the children would attend college, and provided that the children, with both parties’ cooperation, would apply for “merit and need based financial aid” to cover the cost of attending college. The stipulation further provided that, “should there be necessary costs and expenses once financial aid, merit aid and scholarships are exhausted[,] the parties shall consult and try to reach an agreement on payment of these cost[s] and expenses at the time those cost[s] and expenses arise. If the parties cannot agree they can address the issue in a Court of competent jurisdiction.” 

In 2019, the plaintiff moved, inter alia, in effect, to direct the defendant to reimburse the plaintiff for the repayment of one-half of the total amount of the student loans incurred for the payment of the college costs and expenses for the parties’ children, based on the above-quoted provision of the stipulation. The plaintiff   averred, inter alia,  with the defendant about her contributing to the cost of the children’s education on at least two occasions while the children were attending college, and the defendant deferred discussion of the matter to a later time.  The defendant averred that the parties consulted with each other on the issue of the children’s college expenses, that they agreed that the plaintiff would pay those expenses, and that the plaintiff did so. Supreme Court, denied plaintiff’s motion. The Appellate Division affirmed.

The Appellate Division held that the provision of the stipulation upon which the plaintiff relied in seeking reimbursement from the defendant required only that “the parties shall consult and try to reach an agreement on payment of [the children’s college-related] cost[s] and expenses.” This provision did not identify an amount or percentage of such costs or expenses to be paid by either party, and did not impose an obligation upon either party to make any such payment. Rather, “a material term [was] left for future negotiations” (Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). Thus, the subject provision constituted “a mere agreement to agree,” and, as such, was unenforceable (id. at 109, 436 N.Y.S.2d 247, 417 N.E.2d 541; see Silverman v. Silverman, 249 A.D.2d 378, 379, 671 N.Y.S.2d 145; Flanel v. Flanel, 152 A.D.2d 536, 543 N.Y.S.2d 501).
 

Where there is no right to counsel pursuant to FCA § 262, claims of ineffective assistance of counsel in civil litigation will not be entertained absent extraordinary circumstances 

In Matter of Buljeta v Fuchs, --- N.Y.S.3d ----, 2022 WL 6849583, 2022 N.Y. Slip Op. 05687 (2d Dept.,2022) the Appellate Division held that situations where there is no statutory right to counsel pursuant to Family Court Act § 262, claims of ineffective assistance of counsel in the context of civil litigation will not be entertained where extraordinary circumstances are absent (see Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 943, 53 N.Y.S.3d 130; Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048, 983 N.Y.S.2d 892).
 

Where the father’s  failure to pay child support is not willful a money judgment should be entered in favor of the mother for the amount of child support arrears

  In Matter of Santman v Schonfeldt, --- N.Y.S.3d ----, 2022 WL 6846934 (Mem), 2022 N.Y. Slip Op. 05693 (2 Dept.,2022) a child support enforcement proceeding,  the Family Court denied the petition and dismissed the proceeding. The Appellate Division found that the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support of $19,591.43. Therefore, the mother met her prima facie burden. The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. The Appellate Division held that under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful. Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should have been entered in favor of the mother for the amount of child support arrears that accrued during the relevant period (see Family Ct Act  §§ 454[2][a]; 460[1]). It remitted the matter to the Family Court, for the entry of an appropriate money judgment.


Denial of husbands pendente lite motion to sell portion of wine collection to pay marital debt  was in keeping with purposes of DRL § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced

In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10781782 (Mem), 2022 N.Y. Slip Op. 05835 (2d Dept.,2022) in July 2018, the plaintiff commenced this action for a divorce. In October 2018, the Supreme Court denied the defendants motion inter alia, for permission to sell a portion of the parties’ wine collection pendente lite in order to pay marital debt and expenses. The Appellate Division affirmed. It observed that Domestic Relations Law § 236(B)(2)(b)(1) provides, in pertinent part, that during the pendency of a matrimonial action, “neither party shall sell ... or in any way dispose of, without ... consent of the other party in writing, or by order of the court, any property (including ... personal property ...) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.” The record supported the Supreme Court’s determination The parties’ affidavits submitted in connection with the motion reflected factual disputes regarding, inter alia, the size and estimated value of the wine collection, the parties’ past course of conduct during the marriage with respect to sales from the wine collection, and the parties’ respective alleged irresponsibility or responsibility with regard to household finances. In light of these factual disputes, denial of the subject branch of the motion was appropriate and in keeping with the statutory purposes of Domestic Relations Law § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced by the potential “unilateral dissipation of marital assets”.

Second Department reiterates rule that modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances

In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10778464 (Mem), 2022 N.Y. Slip Op.  (2d Dept.,2022) the parties were married in 2008 and had two children. In July 2018, the plaintiff commenced the action for a divorce. In an order dated January 4, 2021, the Supreme Court, inter alia, granted the plaintiff’s motion for an award of pendente lite child support to the extent of directing the defendant to pay pendente lite child support in the sum of $5,059 per month, retroactive pendente lite child support in the sum of $40,472 at a rate of $1,700 per month, and 100% of the children’s add-on expenses. The Appellate Division affirmed. It held that  modification of the pendente lite child support award was not warranted. Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires. Any perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored. The defendant failed to demonstrate the existence of any exigent circumstances warranting a modification of the pendente lite child support award made by the Supreme Court.


Appellate Division, Third Department


Presumption that visitation with a noncustodial parent is in the best interests of the child, may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare

        In Matter of Ajmal I v Latoya J, --- N.Y.S.3d ----, 2022 WL 11379771, 2022 N.Y. Slip Op. 05912 (3d Dept.,2022) pursuant to a February 2012 order, the mother was awarded sole legal and physical custody of the child, while the father, who had failed to appear was granted the right to petition for custody and/or visitation in the future. The father left New York in 2009 and had not resided in the state since. The parties’ relationship had generally been tense. Given the father’s prior menacing and assaultive behavior toward the mother, she remained afraid of him and refused to give him her address. In November 2019, the mother learned that the father had offered money on social media to anyone who gave him the mother’s address, then posted that he had obtained the address and would “[s]ee [her] soon.” The mother filed a family offense petition seeking an order of protection against the father. The father responded by filing a custody modification petition and seeking, for the first time since the issuance of the 2012 custody order, visitation with the child. Family Court issued an order of protection in favor of the mother. Family Court then conducted a fact-finding hearing on the father’s modification petition, and granted the  father two hours of supervised visitation. 

The Appellate Division agreed with the mother and the attorney for the child that there was no basis for the award of visitation here. It reversed and dismissed the father’s petition in its entirety.  It held that while visitation with a noncustodial parent is presumed to be in the best interests of the child, that “presumption may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare. This standard of substantial proof should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption by a preponderance of the evidence. ( Matter of Granger v. Misercola, 21 N.Y.3d 86, 92, 967 N.Y.S.2d 872 [2013]). As such, the party opposing visitation will meet his or her burden with sworn testimony or documentary evidence that visitation would be harmful to the child or that the noncustodial parent has forfeited the right of access. It was undisputed that the father had not lived with the child in over a decade and had only infrequently visited the child due to, among other things, his moving out of the area and frequently relocating around the United States. The father made no effort to seek a formal award of visitation until 2019, more than seven years after the issuance of the 2012 custody order and over two years after he had last seen the child. This failure by the father to seek a visitation order or otherwise “avail himself of opportunities for visitation over a lengthy period of time  is appropriately taken into account in considering whether visitation is appropriate. Moreover, the mother testified as to how the father behaved in an irresponsible and harmful manner on the occasions when he did interact with the child. The mother described how, during a 2014 visit with the child during his winter break from school, the father cut off contact with her and left the child with relatives so that he could attend a party and travel to New York City, leaving the mother unaware of the child’s whereabouts until the child called her several days later. The father did not see the child again until a 2017 family trip to an amusement park, and the mother testified that he upset the child then by, among other things, live streaming the visit, including the child’s personal conversations, over social media. The mother further set forth how the father did not have frequent electronic contact with the child after that visit and, when that contact did occur, the child was upset by it. The attorney for the child confirmed that the teenage child was upset by interactions with the father for a variety of reasons and did not wish to see him. The child’s preference to have no in-person contact with the father was not dispositive, but is entitled to “considerable weight” given the child’s age . The foregoing satisfied the mother’s burden of establishing that any visitation with the father would be harmful to the child.


Change in circumstances standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. Fundamental purpose” of Lincoln hearing is to ascertain a child’s preferences and concerns.  

In Theodore P v Debra P, 2022 WL 11378159 (3d Dept.,2022) pursuant to a March 2018 separation agreement, which was to be incorporated but not merged into a subsequent judgment of divorce, the parties agreed to joint legal custody of the child and to share physical custody on a “substantially equal basis in a mutually acceptable manner.” The father commenced a divorce action in November 2019 requesting that relief, while the mother sought sole legal and physical custody. The Appellate Division rejected the father’s argument that the Supreme Court erred in proceeding directly to a best interests analysis without first considering whether a change in circumstances occurred since execution of the separation agreement. A party seeking to modify a judicially sanctioned custody arrangement must make a threshold showing of a change in circumstances that warrants an inquiry into whether modification of the arrangement is in the child’s best interests. However, that standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. As such, the separation agreement was but a factor to consider in resolving the custody dispute. It followed that the court did not err in denying the father’s motion for a directed verdict based upon the mother’s alleged failure to demonstrate changed circumstances.

The Appellate Division rejected the fathers argument that Supreme Court abused its discretion in holding a Lincoln hearing because there was no trial testimony requiring corroboration by the child. Corroboration of trial testimony and documentary evidence may be “a recognized purpose of a Lincoln hearing,” but the “fundamental purpose” of such a hearing “is to ascertain a child’s preferences and concerns.” It concluded that the Lincoln hearing was a provident exercise of the court’s discretion.


Supreme Court

Supreme Court holds that in determining the best interests of a companion animal under DRL § 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal

In L.B., v. C.C.B., --- N.Y.S.3d ----, 2022 WL 7855133, 2022 N.Y. Slip Op. 22320 (Sup Ct, 2022) an action for a divorce the parties were married for ten years. The Supreme Court pointed out that the sole significant asset contested by the parties was  custody and possession of their two dogs. It observed that effective October 25, 2021, DRL § 236 [B] [5] [d] [15] provides the  standard to apply in pet custody cases. It  requires courts to consider “the best interest” of a companion animal when awarding possession in a divorce or separation proceeding. It held that in determining the best interests of a companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive. It held that in determining equitable distribution of the parties’ companion animals, the court was guided by what is in the doges best interest. In weighing the factors relevant to the dogs best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (citing “see generally” Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). After weighing the factors that would further the dogs best interest, including factors such as which party was primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and the quality of the home environment as one in which the dogs would “live, prosper, love and be loved,” as well as evaluating the testimony, character and sincerity of the parties, the court found that it was in the dogs best interest to remain together in Defendant’s sole care. The care and custody of the parties’ Rottweilers was awarded to Defendant.


October 12, 2022

Appellate Division, First Department

Law of the case doctrine did not bar defendant’s second attorney’s fees application, which is expressly permitted by DRL § 237(a) and was based on new evidence and circumstances

In Cohen v Cohen, --- N.Y.S.3d ----, 2022 WL 4830598 (Mem), 2022 N.Y. Slip Op. 05498 (1st Dept.,2022) the Appellate Division affirmed an order which, inter alia, granted defendant wife’s motion for a second interim award of counsel fees in the amount of $600,000. It found that under the facts and circumstances presented here, the court providently exercised its discretion. The factors considered include the scope and complexity of the financial issues presented, the parties’ assets and liabilities, as sworn to in their respective statements of net worth, and the prior determination that plaintiff husband, who controlled much of the parties’ real estate holdings and interest in a cosmetics business, was the monied spouse. The discretionary law of the case doctrine did not bar defendant’s second attorney’s fees application, which is expressly permitted by section 237(a) of the Domestic Relations Law and was based on new evidence and circumstances.
The phrase “consummation of the anticipated marriage of [the parties] is a condition precedent to the enforceability of this Agreement”  referred to the marriage ceremony anticipated by the parties when they entered into the agreement 

In Fort v Haar, --- N.Y.S.3d ----, 2022 WL 6577794, 2022 N.Y. Slip Op. 05660(1st Dept.,2022)  In August 2014, the parties entered into a prenuptial agreement, and on February 14, 2015, they were married before a rabbi. The prenuptial agreement contained a section entitled “MARRIAGE -A CONDITION PRECEDENT AND EFFECTIVE DATE,” which provided, “consummation of the anticipated marriage of [the parties] is a condition precedent to the enforceability of this Agreement. If [the parties] do not marry, this Agreement shall have no effect.... This Agreement is made in consideration of, and is conditioned upon, [the parties] entering into a valid ceremonial marriage with each other, and it shall become effective as of the date of that marriage.” After the wife commenced this divorce action, she sought a declaration that the agreement was not enforceable, arguing that a condition precedent was the parties’ “consummating the anticipated marriage,” which she asserted was understood to mean having engaged in marital sexual relations. The husband opposed and sought a declaration that the agreement was enforceable as of the date of the marriage. He also disputed the wife’s factual assertions that the parties had not had sexual relations since the date of the marriage. The Appellate Division concluded that  as used in this prenuptial agreement, the phrase clearly and unambiguously referred to the marriage ceremony anticipated by the parties when they entered into the agreement. While the word “consummation” connotes sexual relations in certain contexts, such as annulment proceedings, that is not the only meaning of the word, which may simply mean achieve or fulfill (see Black’s Law Dictionary [11th ed 2019]). The plain meaning of “consummation,” in the context of the section titled “Marriage – a Condition Precedent and Effective Date” and defining the effective date of agreement as the date of the parties’ marriage, is consummation or fulfillment of the parties’ intention to enter into a valid “marriage.” Reading the contract as a whole, this interpretation of the section effectuates the parties’ expressed intention to fix their respective rights accruing upon marriage and to avoid unnecessary and intrusive litigation in the event of divorce, and sets an ascertainable date for determining the effectiveness and enforceability of the prenuptial agreement. Furthermore, the wife’s acceptance of benefits under the terms of the prenuptial agreement foreclosed her from questioning its enforceability (see Markovitz v. Markovitz, 29 AD3d 460, 461 [1st Dept 2006]). The parties’ conduct in executing a modification agreement further underscored that they believed it was in force and effect (Federal Ins. Co. v. Americas Ins. Co., 258 A.D.2d 39, 44 [1st Dept 1999]).
 


Law Firm  was not entitled to recover the counsel fees it incurred in litigating its fee claim against former client in absence of any agreement, statute, or court rule that would authorize such a recovery
In Lorne v Lorne, --- N.Y.S.3d ----, 2022 WL 5234633, 2022 N.Y. Slip Op. 05593 (1st Dept.,2022) the Appellate Division held that Fox Rothschild was entitled to recover its unpaid fees because it substantially complied with applicable court rules regarding attorneys representing clients in domestic relations matters (Uniform Rules for Trial Cts [22 NYCRR] §§ 1400.2, 1400.3; see Edelman v. Poster, 72 A.D.3d 182, 184, 894 N.Y.S.2d 398 [1st Dept. 2010]). Although the wife claimed that the retainer letter did not include 8 of 13 provisions that are mandated to appear in a retainer letter (see 22 NYCRR 1400.3), either the omitted provisions addressed matters that were not relevant to the wife in any event, or the wife was made aware of those provisions through the statement of client’s rights and through her own experiences in this proceeding. However, the wife’s position that Fox Rothschild was not entitled to recover the counsel fees it incurred in litigating its fee claim against her was  persuasive in light of the firm’s failure to cite any agreement, statute, or court rule that would authorize such a recovery (see Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989]).
 

Appellate Division, Second Department


A court opting to forgo a plenary custody modification hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision.

In Matter Randall v. Diaz,, --- N.Y.S.3d ----, 2022 WL 4490760 (Mem), 2022 N.Y. Slip Op. 05322 (2d Dept.,2022) the Family Court, without holding a plenary hearing, granted the father’s petition, modified the existing custody order and awarded the father sole physical custody of the children. The Appellate Division held that custody determinations should generally be made only after a full and plenary hearing and inquiry’. Where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. While a hearing is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody a court opting to forgo a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision. The record demonstrated disputed factual issues so as to require a hearing on the issue of physical custody. Moreover, the Family Court failed to articulate the factors and evidence material to its determination. It remitted for a new hearing and determination.


Under Family Court Act § 846–a, the court may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful. The reasonable amount and nature of the claimed services must be established at an adversarial hearing

         In Matter of Sicina v.  --- N.Y.S.3d ----, 2022 WL 5064723, 2022 N.Y. Slip Op. 05535 (2d Dept.,2022, the Family Court, inter alia, found that Gorish had willfully violated an order of protection and granted the violation petition. The court also extended the order of protection and directed Gorish to pay counsel fees to the petitioner of $1,000. The Appellate Division affirmed. Family Court’s determination that Gorish willfully violated the order of protection was supported by clear and convincing evidence in the record. Family Court Act § 846–a authorizes the court to enter a new order of protection if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order. Contrary to Gorish’s contention, conduct constituting a violation of the order of protection need not necessarily constitute a separate family offense in order for the court to have jurisdiction over the violation. Under Family Court Act § 846–a, the court may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful. The award of counsel fees is committed to the discretion of the Family Court. The reasonable amount and nature of the claimed services must be established at an adversarial hearing. Here, while the Family Court providently exercised its discretion in awarding counsel fees to the petitioner, the court erred in determining the amount of the counsel fees without a hearing. It remitted the matter to the Family Court, for a hearing to determine the amount of reasonable and necessary counsel fees the petitioner incurred in connection with her violation petition and the entry of an appropriate order thereafter.


Appellate Division, Fourth Department


A movant contending that a pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and evidence to demonstrate conclusively that the plaintiff does not have a cause of action

In Stuber v Stuber --- N.Y.S.3d ----, 2022 WL 5406402, 2022 N.Y. Slip Op. 05641 (4th Dept., 2022) Plaintiff commenced an action seeking to set aside a property settlement agreement (agreement), which was incorporated but not merged into the parties’ judgment of divorce, on grounds of fraud, undue influence, unconscionability, and duress. The Appellate Division reversed an order that, inter alia, denied defendants motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (5), and (7). It held that a movant contending that a pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and evidence to demonstrate conclusively that the plaintiff does not have a cause of action. Here, plaintiff’s vague allegations that defendant failed to make full financial disclosure when the agreement was entered into were belied by the evidence produced in defendant’s motion papers. Thus, it concluded that the agreement, together with the evidence submitted by defendant, flatly contradicted plaintiff’s allegations that she was not provided with complete disclosure regarding the subject assets at the time she executed the agreement. Further, when confronted with defendant’s motion to dismiss, plaintiff failed to come forth with any facts or circumstances” supporting her allegations. Inasmuch as plaintiff only vaguely contended, in response to the motion, that she learned after the agreement was executed that defendant failed to make disclosure of marital financial information and inasmuch as her complaint contains no facts to support those allegations, the complaint also failed to state a cause of action to rescind the agreement based on unconscionability, fraud, or duress and undue influence. 




September 28, 2022


Appellate Division, First Department


Where an account has been stated by a law firm, the firm is not required to establish the reasonableness of its fees 

  In Garr Silpe, P.C. v Pam Thur Weir, --- N.Y.S.3d ----, 2022 WL 4474597, 2022 N.Y. Slip Op. 05271 (1st Dept.,2022) the Appellate Division affirmed a judgment which awarded the plaintiff $87,993.92, counsel fees as there had been substantial compliance with the rules (see Edelman v Poster, 72 AD3d 182,184 [1st Dept 2010]; 22 NYCRR part 1400). The court properly granted plaintiff summary judgment on its claim for account stated. Plaintiff submitted evidence establishing that defendant did not object to the bills and invoices within a reasonable time, and had in fact made partial payments. Defendant failed to proffer any proof raising a triable issue of fact. Defendant’s challenge to the reasonableness of the fees was unavailing. Where an account has been stated by a law firm, the firm is not required to establish the reasonableness of its fees since the client’s act of holding the invoices without objection constitutes an acquiescence to the correctness of the invoices (see Shaw v Silver, 95 AD3d 416, 416-417 [1st Dept 2012]).


Appellate Division, Second Department 


Second Department holds that where the custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent


       In Matter of Smisek v DeSantis, 2022 WL 4361153 (2d Dept.,2022) in adjudicating a child support petition filed by the mother of the children, the Support Magistrate and the Family Court agreed with the father’s contention that the mother could not be awarded child support because a strict counting of the parties’ custodial overnights with the children rendered him the custodial parent. After a trial, the Family Court issued a final order of custody awarding the parties joint legal custody and shared parenting time. The parenting time schedule in the final order of custody was as follows: during the months of September through June, the father had parenting time with the children from Sunday at 8:00 p.m. through Wednesday at 9:00 a.m., as well as on alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. The mother had parenting time during those months from Wednesday at 9:00 a.m. through Friday at 9:00 a.m., and alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. During the months of July and August, the mother had parenting time from Monday at 9:00 a.m. through Thursday at 9:00 a.m., as well as alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m. The father had parenting time during those months on alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m., as well as one period of seven consecutive days. The parties alternated custody on all other school breaks and holidays. In its decision after trial, which set forth the same parenting time schedule, the Family Court stated that it was giving “residential custody” to the father “solely for the purpose of determining the children’s school district.” 

The Support Magistrate, examining the relevant law, perceived a split of authority between the Appellate Division, First and Third Judicial Departments, on the one hand, and the Appellate Division, Fourth Judicial Department, on the other, with no precedent from the Second Department, as to the method of determining which parent was the custodial parent for purposes of child support in a shared custody arrangement. Following the First Department’s decision in Rubin v. Della Salla, 107 A.D.3d 60, 964 N.Y.S.2d 41, the Support Magistrate concluded that the parent who has the greatest number of custodial overnights is the parent considered to have custody of the child the majority of the time and, therefore, is the custodial parent for child support purposes. Since the father had more custodial overnights, the Support Magistrate granted the father’s motion pursuant to CPLR 3211(a) to dismiss the mother’s petition for child support and dismissed the proceeding. The mother filed objections to the Support Magistrate’s order, arguing for a more flexible approach that would award child support to the spouse with the lower income where the parties enjoyed approximately equal parenting time. The Family Court, however, agreed with the Support Magistrate, and denied the mother’s objections. The mother appealed.
 
  The Second Department surveyed the relevant case law in all of the Departments. It rejected that the father’s contention that status as the custodial parent must be determined based upon a strict counting of custodial overnights and that the Baraby rule only applies to a true 50/50 split of custodial overnights. While a strict counting of overnights might have the advantage of ease of application, it also has disadvantages. Most significantly, such a method does not always reflect the reality of the situation. It concluded that while counting custodial overnights may suffice in most shared custody cases, that approach should not be applied where it does not reflect the reality of the situation. Similarly, while it may be clear in most cases which parent’s share of the parenting time constitutes the majority of custodial time (citing Bast v. Rossoff, 91 N.Y.2d at 729 n. 3, 675 N.Y.S.2d 19, 697 N.E.2d 1009), the reality of the situation must also be considered where there is a closer division of parenting time. 

The Appellate Division found that under all of these circumstances, and considering the reality of the situation, including the overall amount of time each parent spends with the children, this was a case in which the “custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time” (Baraby v. Baraby, 250 A.D.2d at 204, 681 N.Y.S.2d 826). Thus, “the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent” . Since it had not been determined in this case which parent had the greater pro rata share of the child support obligation, it remitted the matter to the Family Court for further proceedings on the mother’s petition for child support, including calculation of an appropriate award of support to her in the event that she is determined to have the lesser pro rata share of the child support obligation.



September 21, 2022

Where a parent makes a voluntary custodial arrangement for his or her child, the courts may not permit a nonparent to interfere with that arrangement in the absence of extraordinary circumstances.

         In Matter of Leslie LL v Robert NN, --- N.Y.S.3d ----, 2022 WL 4239598, 2022 N.Y. Slip Op. 05189 (3d Dept.,2022) following the mother’s death in 2017, custody petitions for the son and daughter were filed by the mother’s friend, respondent Shaquila PP.and the children’s maternal grandmother, respondent Kathy OO..Family Court granted temporary custody to the grandmother, upon consent of the children’s fathers and the friend. Family Court conducted a hearing and ultimately dismissed the petitions on the basis that petitioners had failed to meet their burden of demonstrating extraordinary circumstances. The Appellate Division affirmed. It pointed out that the boy’s father testified at the hearing that he consistently paid child support to the mother while she was alive and saw the boy frequently during those years, as often as two to three times a week. He also testified that he was unable to assume custody because he ha physical disabilities and lived in public housing that did  not allow children. Therefore, following the mother’s death, the boy’s father formulated a plan for the boy to live with the grandmother along with his sister, with whom he has a close bond. He said he currently visited with the boy every weekend and attended all of his athletic events. Family Court noted that the children have been the only constant in each other’s lives and are very close. The court further observed that the children are being raised together by the grandmother in a loving home. The Appellate Division held that where, as here, a parent makes a voluntary custodial arrangement for his or her child, the courts may not permit a nonparent to interfere with that arrangement in the absence of extraordinary circumstances. An extraordinary circumstances inquiry involves “consideration of the cumulative effect of all issues present in a given case” and requires the nonparent to establish “that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody” or other like circumstances. If , and only if, the nonparent establishes extraordinary circumstances may a court then consider what custodial arrangement serves the best interests of the child”. It held that  extraordinary circumstances may not be established merely by showing that the child has bonded psychologically with the nonparent”.


September 16, 2022

Appellate Division, First Department


Since there is no reason an equitable distribution award cannot be made to the plaintiff on a contingent basis, the court should have awarded the plaintiff 50% of so much of the security deposit as is returned by the landlord upon the termination of the lease on the marital residence.

In Malkani v Malkani, --- N.Y.S.3d ----, 2022 WL 3904656, 2022 N.Y. Slip Op. 05082 (2d Dept.,2022) the parties were married on December 31, 2007, and had three minor children. The action for a divorce was commenced on August 8, 2017. After a nonjury trial, the Supreme Court awarded the plaintiff maintenance and child support, commencing on the first day of the month following the entry of the judgment of divorce, rather than being retroactive to the date of the commencement of the action, when the plaintiff first sought maintenance and child support. In computing maintenance and child support, the court noted that the defendant was employed at an annual salary of $235,000 and, based upon the potential of a bonus, imputed to him a total annual income of $270,000. The court noted that the plaintiff had been offered full-time employment with an annual salary of $85,000 by her current employer, and imputed that income to her. The court imputed additional annual income of $84,000 to the plaintiff, on the ground that her father was paying the rent for her current residence. Maintenance and child support were based upon imputed income of $270,000 for the defendant and $169,000 for the plaintiff.  Based upon those figures, the computation of maintenance pursuant to Domestic Relations Law § 236(B)(6) resulted in a negative number. The Supreme Court nevertheless awarded the plaintiff maintenance of $1,000 per month for a period of 12 months. Child support was awarded to the plaintiff based upon the defendant’s imputed income of $270,000 and the plaintiff’s imputed income of $169,000, utilizing the statutory cap of $148,000 for combined parental income. Based on the income imputed to each party, the court determined that the defendant would be responsible for 61% of all statutory add-on expenses and the plaintiff would be responsible for 39% of such expenses. 
 
The Appellate Division held that a party’s maintenance and child support obligations commence, and are retroactive to, the date the applications for maintenance and child support were first made,” which, in this case, was the date of the commencement of this action and that the award of spousal maintenance and child support to the plaintiff should have been retroactive to August 8, 2017.
 
The Appellate Division held that imputing an additional $84,000 in annual income to the plaintiff, based upon the fact that her father paid her rent so she could live apart from the defendant during the pendency of this action, was an improvident exercise of discretion. This gift was made by the plaintiff’s father after the action was commenced, and was at least in part a response to the fact that the defendant was not making any pendente lite support payments Moreover, the term of the lease for the plaintiff’s residence was only 19 months, commencing on December 1, 2017. The plaintiff’s father had no legal obligation to provide his daughter with housing, and there was no indication in the record that his payment of rent would continue once the 19–month lease period ended.. Under these circumstances, it was not appropriate to impute the rental payments made by the plaintiff’s father as income to the plaintiff.
 
The Supreme Court declined to award the plaintiff an equitable share of the security deposit of $12,000 given to the landlord of the marital residence, reasoning that the plaintiff did not prove that the deposit was paid with marital funds and that, since the lease of the marital residence had not ended, it was not known whether the security deposit would be returned. However, there was no indication in the record that the security deposit, which was given after the parties had been married for approximately seven years, somehow derived from separate property, and thus, the presumption that the security deposit was paid with marital property, and therefore was subject to equitable distribution, was not overcome. Since there was no reason an equitable distribution award cannot be made to the plaintiff on a contingent basis, the court should have awarded the plaintiff 50% of so much of the security deposit as is returned by the landlord upon the termination of the lease on the marital residence.
 
 Appellate Division, Third Department
 

Judiciary Law § 14 provides that  A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel. This prohibition is absolute and establishes a bright -line disqualification rule.

  In Matter of John II, v Kristen JJ., --- N.Y.S.3d ----, 2022 WL 4098523, 2022 N.Y. Slip Op. 05132) (3d Dept.,2022) pursuant to a November 2012 order issued upon the father's default, the mother was granted sole legal and physical custody of the children. Subsequently, in June 2017, the parties entered into an agreement through which the mother retained sole legal and physical custody of the children, and the father was "entitled to weekly supervised visitation. The  father filed a petition for modification of June 2017 order. He also sought Family Court's disqualification, noting that the November 2012 order listed "Keith M. Bruno" as the mother's counsel in those proceedings. Family Court denied the father's disqualification  motion. Following a fact-finding hearing where the mother was the only witness, Family Court dismissed the father's petition for failure to establish a prima facie case. The Appellate Division agreed with the father that  Family Court erred in denying his motion to have the court be disqualified from the matter. It observed that  "A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel" (Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1] [b] [i]). "This prohibition is absolute and establishes a bright -line disqualification rule". Although neither the Judiciary Law nor the Rules Governing Judicial Conduct define "an action, claim, matter, motion or proceeding" (Judiciary Law § 14), Black's Law Dictionary defines a "claim" as "[t]he assertion of an existing right . . . to an equitable remedy, even if contingent or provisional" (Black's Law Dictionary [11th ed 2019] , claim). When the father moved for Family Court's recusal and/or disqualification, the judge explained that he did not recall such representation from eight to nine years prior. The November 2012 default order and the order on appeal both dealt with the custodial arrangement between the same two parents regarding the same three children. Under these circumstances, where the two proceedings involved the same claim of custody, guardianship, or visitation for the same children, Family Court was statutorily disqualified from the proceedings. The order was reversed and the matter remitted before a different judge for a new fact-finding hearing.

Appellate Division, Fourth Department

The fact that testing has already been conducted when a court holds a hearing on equitable estoppel does not mandate reversal of a subsequent order determining paternity. A Support Magistrate cannot lawfully order a party to submit to genetic testing before the party is represented by counsel.

  In  Matter of Danielle E.P., v. Christopher N., 172 N.Y.S.3d 782, 2022 N.Y. Slip Op. 04841(4th Dept.,2022)  Respondent and petitioner-respondent (petitioner) had sexual relations in September 2015 and January 2016. At the time that petitioner gave birth to the child, she was in a relationship with another man who was identified as the child’s father on the birth certificate and who signed an acknowledgment of paternity. Shortly after the child was born, petitioner’s relationship with that man ended. Petitioner then informed respondent that he might be the child’s father and filed a paternity petition against him. Based on the acknowledgment of paternity, Family Court dismissed the petition. After the acknowledgment of paternity was vacated, petitioner commenced this proceeding. At the outset of the proceeding, the Support Magistrate ordered genetic marker testing, which established that respondent was the child’s biological father. The Support Magistrate thereafter transferred the matter to Family Court for a hearing on respondent’s defense of equitable estoppel. Following the hearing, the court adjudicated respondent to be the child’s father. The Appellate Division affirmed.

The Appellate Division observed that the court should consider paternity by estoppel before it decides whether to test for biological paternity. Nevertheless, the fact that testing has already been conducted when a court holds a hearing on equitable estoppel does not mandate reversal of a subsequent order determining paternity. Respondent had a full and fair opportunity to litigate his equitable defense, which the court rejected following the hearing, and  respondent did  not challenge the court’s determination that he failed to establish that equitable estoppel applied. Moreover, the court made clear that, notwithstanding the results of the genetic marker test, the paternity petition would have been denied had respondent met his burden of proof on equitable estoppel.

The Appellate Division rejected respondent’s contention that the Support Magistrate erred in ordering genetic testing before respondent was represented by counsel. Although a respondent in any proceeding under Family Court Act article 5 in relation to the establishment of paternity has a right to the assistance of  counsel  respondent cited no authority for the proposition that a Support Magistrate cannot lawfully order a party to submit to genetic testing before the party is represented by counsel.

  The Appellate Division rejected respondents contention that the court erred in denying his motion to vacate the order that adjudicated him to be the child’s father. Respondent’s claim of estoppel was based on the nature and extent of the relationship between the boyfriend and the child, and there was insufficient evidence that the Petitioners boyfriend ever held himself out as the child’s father.
 


Supreme Court


Where father’s adjusted gross income was in excess of $2 million a year it was inappropriate to award to guideline maintenance and child support only up to the cap. Court utilized an adjusted cap of $800,000 for its calculations, or approximately one-third of the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d 617 (1st Dept 2017)

In E.A., v. J.A., Slip Copy, 2022 WL 3905783 (Table), 2022 N.Y. Slip Op. 50833(U) 2022 WL 3905783 (Sup. Ct., 2022) the parties were married on June 11, 2017 in New York. This divorce action was commenced on April 18, 2022. There were  two children of the marriage: one born in October 2018, and the other born in April 2021. The marital residence, where the parties resided with their two children, was a townhouse valued at approximately $8 million located in the Upper East Side of Manhattan. The Husband, who was 31, was the co-vice president of, a telecommunications company co-founded by his father. The Wife, who was 27, did not make an income and has no assets. In the year of 2020, the Husband totaled an adjusted gross income of $2,604,004. In 2021, the year before this action was commenced, the husband earned approximately $2,587,530.62. The parties drive luxury automobiles, had access to numerous perquisites through Defendant’s corporation and spend thousands of dollars per month on clothing and accessories including from retailers such as Bergdorf Goodman, Chanel, and Bottega Venetta. Their children attended a private preschool, the parties traveled by private jet on high end vacations throughout the world, had household staff, regularly ate at luxury restaurants and spent thousands of dollars on Kosher groceries, and summered in Deal, New Jersey at the $7 million mansion owned by Defendant’s family. The Court determines it was inappropriate to award the guideline maintenance and child support only up to the cap. It utilized an adjusted cap of $800,000 for its calculations, or approximately one-third of the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d 617 [1st Dept 2017][upholding use of $800,000 adjusted cap]). Using this cap the sum total Defendant would have to pay to Plaintiff each month would be $28,894.69. However, the Court found that this award was too high relative to the total amount spent in 2021, and in light of the significant expenses and carrying costs already being covered by Defendant, including the parties’ townhouse, as well as paying the childcare staff and add-on expenses. The Court found that an amount of $24,000 in unallocated support adequately reflected a support level that met the needs and continuation of the children’s and Plaintiff’s lifestyle. The award was unallocated because, many of the expenses were intertwined and at this early phase of the action more discovery was needed to fully understand the expenses of the parties and children.
 
Defendant was ordered to pay the Plaintiff’s interim counsel fees of $250,000 and to pay Plaintiff’s interim expert fees of $75,000 subject to reallocation at trial and without prejudice to further applications.




September 1, 2022


Appellate Division, Second Department

A petitioner who does not sign an acknowledgment of paternity has standing pursuant to Family Court Act § 522 to seek an adjudication that he was the legal father of the child.

In Matter of Escobar v Pagan, --- N.Y.S.3d ----, 2022 WL 3221775, 2022 N.Y. Slip Op. 04912 (2d Dept.,2022) the subject child was born in September 2013, to Milagros P. ( mother). On September 13, 2013, the mother and Escobar signed an acknowledgment of paternity which stated that Escobar was the child’s father.  The mother also was in an intimate relationship with Michael M.(Michael), and in October 2013 she agreed to a private DNA test. The results of that test indicated that Michael was the child’s biological father. Michael voluntarily paid child support to the mother in the amount of $600 per month. The mother also allowed Michael to have regular visitation with the child. In 2019, Escobar commenced a proceeding for parental access with the child, while Michael commenced a paternity proceeding to have himself declared the child’s father. Family Court directed the mother, Escobar, and Michael to undergo genetic marker testing. Based on the results of that testing, which indicated that Michael was the child’s biological father, the court issued an order adjudicating Michael to be the child’s father, an order vacating the acknowledgment of paternity, and an order dismissing Escobar’s petition for parental access for lack of standing. The Appellate Division affirmed. It held that the best interests of the child were served by adjudicating Michael’s status, since the child already considered Michael to be her father. Further, the evidence adduced at the hearing indicated that Michael provided a stable resource for the child. Therefore, equitable estoppel was not applicable here. Although a petitioner who does not sign an acknowledgment of paternity does not have standing to challenge the acknowledgment of paternity pursuant to Family Court Act § 516–a, Michael nevertheless had standing pursuant to Family Court Act § 522 to seek an adjudication that he was the legal father of the child. Once the Family Court determined that Michael was entitled to such an adjudication pursuant to Family Court Act § 522, it properly exercised its authority to vacate the acknowledgment of paternity executed by Escobar. In view of the order adjudicating Michael to be the child’s father, Escobar’s petition for parental access was properly dismissed for lack of standing.


A person who is not a party to a judicial surrender and is not authorized by statute to file a petition seeking to vacate a judicial surrender lacks standing to file such a petition.
 
In Matter of Elizabeth W,--- N.Y.S.3d ----, 2022 WL 3640856, 2022 N.Y. Slip Op. 05039 (2d Dept.,2022) the child Elizabeth W. appealed from an order of the Family Court, which denied her petitions to vacate the judicial surrenders of Gabriella W. and Aleah W., denied those branches of the mother’s petition which sought the same relief, and dismissed the paternal grandfather’s petitions for custody of Gabriella W. and Aleah W., contending that all three children should reside together with the paternal grandfather. The Appellate Division held, inter alia, that appellant, was aggrieved by the portion of the order denying her own petitions to vacate the judicial surrenders of Gabriella W. and Aleah W., since, in those petitions, the appellant “asked] for relief but that relief [was] denied in whole or in part”. Nonetheless, the appellant was not a party to, and was not the subject of, the judicial surrenders of Gabriella W. and Aleah W. The statutes governing the Family Court’s review of a failure of a material condition of a judicial surrender authorize the filing of petitions by the relevant agency, by the parent, and by the “attorney for the child ” (Family Court Act § 1055–a[a]; see Social Services Law § 383–c[6][c] [petition may be filed by agency, parent, or “law guardian for the child”]). The statutory reference to “the child”  means the child who is the subject of the judicial surrender that is under review. Since adoption in this State is solely the creature of ... statute, statutory provisions regarding adoptions must be strictly construed. Thus, a person who is not a party to a judicial surrender and is not authorized by statute to file a petition seeking to vacate a judicial surrender lacks standing to file such a petition. Although the appellant had standing pursuant to Domestic Relations Law § 71 to apply for sibling visitation(and she was, in fact, granted sibling visitation), seeking to become involved in litigating a parent’s judicial surrender of a sibling for the purpose of adoption is an entirely different matter. Since the appellant was not a party to the judicial surrenders of Gabriella W. and Aleah W., and was not a person authorized to file a petition seeking to vacate either of those judicial surrenders, she did not have standing to file such petitions. Therefore, on that basis, her petitions were properly denied.


Appellate Division, Third Department


Allegations in the petition were sufficient to warrant a hearing to determine if the Court had emergency jurisdiction to make an initial child custody determination under Domestic Relations Law § 76–c

In Matter of Chester HH., v. Angela GG.,--- N.Y.S.3d ----, 2022 WL 3449008, 2022 N.Y. Slip Op. 05002 (3d Dept.,2022)   the Appellate Division held that the allegations set forth in the petition were sufficient to warrant Family Court to conduct a hearing to determine if the Court had emergency jurisdiction to make an initial child custody determination (see Domestic Relations Law § 76[1][a]-[d])., Domestic Relations Law § 76–c provides that “New York courts have temporary emergency jurisdiction if the child is present in this state and it is necessary in an emergency to protect the child, a sibling or parent of the child. ’The father’s petition included allegations concerning, among other things, that the mother engaged in a pattern of neglect by failing to properly dispose of garbage – causing a rodent infestation in the home; that the home was without electricity and hot water for lengthy periods of time on numerous occasions; that the mother has mental and physical conditions rendering her unable to care for the house or the child; that the mother keeps the child out of school to ensure that the child is available to attend to her needs; that the mother failed to take the child to the doctor for approximately four years; and that she has verbally and mentally abused the child. The petition further contained allegations that the child’s maternal uncle punched holes in the walls of the mother’s residence while the child was present, was verbally abusive toward the child – including regarding the child’s sexual orientation – and that the uncle may have sexually assaulted and/or raped the child on two occasions. Finally, the petition alleged that the child’s maternal grandmother was verbally abusive and unsupportive of the child’s gender identity. Family Court erred in relying on  unsigned and redacted MDHHS report, containing vague and contradictory hearsay statements made by an MDHHS caseworker, as support for its decision not to conduct a hearing. The record confirmed that the MDHHS report was the result of a less-than-thorough investigation that failed to address all of the father’s allegations.


Appellate Division, Fourth Department


Collateral estoppel applies only when  the issues in both proceedings are identical .The doctrine of res judicata requires “a valid final judgment” on a prior action between the parties. A divorce settlement tainted by duress is void ab initio not merely voidable, and is, not subject to ratification by the mere passage of time.

In Nagi v Ahmed, 207 A.D.3d 1149, 172 N.Y.S.3d 286, 2022 N.Y. Slip Op. 04461
(4th Dept.,2022) Plaintiff commenced an action seeking to vacate in part an amended judgment of divorce entered in 2018 and to set aside the parties’ property settlement agreement, which was incorporated but not merged into the amended judgment of divorce. The complaint alleged, among other things, that plaintiff signed the agreement due to “extraordinary duress and pressure” exerted on her by defendant, among other people, and that the terms of the agreement were so favorable to defendant as to render it unconscionable and thus unenforceable. Defendant cross-moved for summary judgment on his affirmative defenses seeking to dismiss the complaint on the grounds of collateral estoppel and ratification. Supreme Court granted the cross motion, concluding that plaintiff was collaterally estopped from challenging the agreement because she sought similar relief by way of a motion she filed in July 2018 seeking to modify certain provisions of the agreement and to enforce others. The Appellate Division reversed. It held that collateral estoppel applies when (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. Here, the motion that plaintiff filed in July 2018 did not seek to vacate the amended judgment of divorce or to set aside the agreement. The issues in this action were not identical to those raised by plaintiff in her motion, and defendant thus failed to meet his initial burden on his cross motion of establishing that collateral estoppel precludes plaintiff from challenging the agreement. 

The Appellate Division rejected the contention that to the extent that defendant contended, as an alternative ground for affirmance, that this action was barred by res judicata because plaintiff could have pursued her current claims in the 2018 motion, we reject that contention. A party seeking to set aside a settlement agreement must do so in a plenary action; such relief cannot be obtained on motion. Moreover, although plaintiff did commence a plenary action in August 2018 to set aside the agreement on grounds of fraud, duress, and overreaching, she abandoned that action, and a final judgment was never entered on it. The doctrine of res judicata requires, among other things, “a valid final judgment” on a prior action between the parties which was lacking here. There never had been a determination on the merits of plaintiff’s claims that she signed the agreement under duress and that the agreement is unconscionable.
 
The Appellate Division rejected defendant’s contention, raised as an alternative ground for affirmance, that the court properly granted the cross motion because plaintiff ratified the agreement by acquiescing in it and receiving the benefits under it for a considerable period of time. A divorce settlement tainted by duress is void ab initio not merely voidable, and is, therefore, not subject to ratification by the mere passage of time” (Perl v. Perl, 126 A.D.2d 91, 96, 512 N.Y.S.2d 372 [1st Dept. 1987]). 


Nothing intrinsically dangerous about leaving two children to eat and watch television while the mother was in the bathroom with the door open.

  In Matter of Silas W, 171 N.Y.S.3d 290, 2022 N.Y. Slip Op. 04506 (4th Dept.., 2022) the Appellate Division agreed with the mother that petitioner failed to establish that she neglected the children. Although “[a]n isolated accidental injury may constitute neglect if the parent was aware of the intrinsic danger of  the situation” here, there was nothing intrinsically dangerous about leaving two of the children to eat and watch television while the mother was in the bathroom with the door open. The record established that the mother knew that one of her children was sometimes aggressive towards his younger siblings, but there was no evidence in the record that she was aware that he may open a locked window, remove the screen, and drop his sibling from a height of two stories. In making that determination, it noted that the window involved in the incident was not deemed dangerous by a caseworker during a home visit less than a month before the incident.


Contentions raised for the first time in a reply brief are not properly before the Appellate Division

  In S.P., v. M.P., 207 A.D.3d 1213, 171 N.Y.S.3d 687 (4th Dept., 2022) the Appellate Division held that  contentions raised for the first time in a reply brief were not properly before the court  (see Matter of Carroll v. Chugg, 141 A.D.3d 1106, 1106, 34 N.Y.S.3d 848 [4th Dept. 2016]; Cunningham v. Cunningham, 137 A.D.3d 1704, 1705, 28 N.Y.S.3d 751 [4th Dept. 2016]). It also held that the  issues raised by the AFC were not properly before it where the AFC did not file a notice of appeal (see Matter of Noble v. Gigon, 165 A.D.3d 1640, 1641, 82 N.Y.S.3d 923 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941819 [2019]; Carroll, 141 A.D.3d at 1106, 34 N.Y.S.3d 848



Supreme Court


Court has discretion to limit, modify or vacate the automatic stay imposed by the posting of a Bond for payment of counsel fee award pending appeal

In B.N., v. M.N.,.2022 WL 3591083( Sup. Ct, 2022) this Court, awarded the Plaintiff $75,000.00 for interim counsel fees, The defendant posted a Bond to stay the payment pending appeal. Supreme Court held that it has the authority to limit, modify or vacate the stay imposed by the posting of the Bond, and it vacated the Bond. It held that staying enforcement of an award of interim counsel fees to the nonmonied spouse was, in and of itself, untethered from the intent of DRL § 237(a) and at odds with prevailing case-law. The Court found that the posting of the Bond with respect to the award of interim counsel fees as ordered by this Court functioned, in effect as a denial of the application for fees. (Citing Weschler v. Weschler, 8 Misc 3d 328 (Supreme Court New York County 2005). In Weschler, Justice Gische wrote that “...[t]he fact that the stay is automatic does not remove it from the purview of the court’s discretion to otherwise vacate, limit or modify the stay. Moreover, the statute expressly gives the court issuing the order appealed from such discretion...” It noted that in Karg v. Kern 125 AD3d 527 (1st Dept. 2015)., the First Department unanimously affirmed an Order of the New York County Supreme Court, which, inter alia, vacated an automatic stay obtained therein.


Veterans military disability retirement pay, and VA financial compensation are not subject to equitable distribution

In B.C., v. M.C., --- N.Y.S.3d ----, 2022 WL 3591082, 2022 N.Y. Slip Op. 22266 (Sup Ct, 2022) defendant’s request for an Order directing that the Plaintiff’s military disability retirement pay, and VA financial compensation were  subject to equitable distribution was denied. Plaintiff had medical issues that rendered her permanently disabled, entitling her to disability retirement benefits from the United States Coast Guard. The Court observed that ”Department of Defense Financial Management Regulation, Volume 7B . . . addresses and explains the retired pay system[.] Pursuant to § 290701 (C) (5) if the percentage of disability is chosen, then it is not part of disposable retirement pay. The Uniformed Services Former Spouse’s Protection Act (10 USC § 1408 (a) (4) (iii)) defines disposable retired pay as “the total monthly retired pay to which a member is entitled less amounts which in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list).” In 1982 Congress passed “the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408. Congress wrote that a State may treat veterans’ “disposable retired pay” as divisible property, i.e., community property divisible upon divorce. However, the new Act expressly excluded from its definition of “disposable retired pay” amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits.” (see Howell v Howell, 137 S Ct 1400 [2017]). The Third Department has held  “that a court in an action for divorce or separation cannot order as spousal maintenance the allocation of compensation received by a veteran derived from military pay waived in order for the retiree to receive veterans’ disability benefits.” (see Hoskins v Skojec, 265 AD2d 706 [3d Dept 1999]; Mills v Mills, 22 AD3d 1003 [3d Dept 2005]). VA benefits are awarded based solely on a disability that has resulted from injury or disease contracted in the line of duty and as such these benefits are separate property and are “not subject to equitable distribution[.]” (see Murphy v Murphy, 126 AD3d 1443 [4th Dept 2015]). 
 

Family Court


Under the Family First Prevention Services Act (FFPSA), which is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily the court must determine the most appropriate and least restrictive placement possible
 
In Matter of Felipe R.,172 N.Y.S.3d 350, 2022 N.Y. Slip Op. 22216 (Fam Ct, 2022) ACS filed a motion seeking an order that continued qualified residential treatment facility placement was necessary to adequately address the child’s needs.  A hearing was held pursuant to SSL § 393(2), F.C.A. § 353.7(3), § 756-b(3), § 1055-c(2), § 1091-a, and § 1097, through which the Family First Prevention Services Act (FFPSA), 42 U.S.C. § 672 and § 675a are codified in New York. This statute, in relevant part, is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily. The Court was asked to determine the most appropriate and least restrictive placement possible for Felipe, who had autism. The Court pointed out that in order to maintain his current placement, the Court must determine whether 1) Felipe’s needs can/cannot be met through a placement in family-based foster care; 2) a group placement is the most effective and appropriate placement; 3) placement is the least restrictive possible placement given Felipe’s needs; and 4) such placement is consistent with the long- and short-term planning goals in place for the subject child. The Court found that ACS  failed to meet its burden under FFPSA and FCA 1055-c.  Placement of the child alleged to be neglected in qualified residential treatment facility was not the  least restrictive placement possible and continued placement was not appropriate under Family First Prevention Services Act (FFPSA). Although the child was diagnosed with autism and struggled with self-soothing, hygiene, expressing his needs, and other basic tasks, until the filing of neglect petition, the child had been living with his mother and siblings where his basic needs were met without extensive additional services, and services that child received at facility were available in the community. Such placement was not consistent with the child’s short- or long-term needs, and, thus, child’s continued placement in facility was not appropriate under Family First Prevention Services Act (FFPSA). The  goal was for child to return home, the child was only ten years old and was among the youngest residents at facility, the child did not transition to group care easily, and the child, as shown through his connection to his current family, would benefit from long-term relationships. To find otherwise would essentially mean that any child suffering from relatively severe autism can only live in a group facility. It held that under the requirements of Family First, ACS must seek a therapeutic foster home or, if after the 1028 hearing is complete, Felipe is returned home, provide adequate at home services consistent with Felipe’s short- and long-term needs.

August 16, 2022


Appellate Division, First Department

Family Court has jurisdiction, in a juvenile delinquency proceeding, to entertain an application for the expungement of DNA evidence 

In Matter of Francis O.,170 N.Y.S.3d 71, 2022 N.Y. Slip Op. 03969 (1st Dept.,2022) the Appellate Division held that  in a proper case, Family Court has jurisdiction, in a juvenile delinquency proceeding, to entertain an application for the expungement of DNA evidence pursuant to Executive Law § 995–c(9)(b). It further found that under the facts presented, it had not been established that appellant abandoned the cup containing his DNA material or waived his privacy interest in the cup, and therefore had standing to challenge the taking of a sample of his DNA, which was obtained without his knowledge or consent and in violation of his constitutional and due process rights. It also found that under the totality of the circumstances, it was an improvident exercise of the court’s discretion to deny expungement of his DNA sample and all related information.

A permanency goal of free for adoption does not lead to a petition to terminate parental rights

In Matter of Mahkayla W, 206 A.D.3d 599, 170 N.Y.S.3d 551, 2022 N.Y. Slip Op. 04231(1st Dept.,2022) a neglect proceeding, the Appellate Division found that the father’s argument that his due process rights were violated by the change in the permanency goal was not grounded in the statute and would prejudice the subject children in obtaining permanency. A permanency goal of free for adoption does not lead to a petition to terminate parental rights, since the statute allows the court to adjudicate a particular goal yet direct the agency to engage in concurrent planning (see Family Court Act § 1089 [c][4][iii], [d][2][iv]).

Appellate Division, Second Department

Where a separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification


In Kirk v Kirk, --- N.Y.S.3d ----, 2022 WL 2962592, 2022 N.Y. Slip Op. 04718 (2d Dept.,2022) the  parties were married on September 16, 1984, and had three children. On January 9, 2007, the parties entered into a written separation agreement. The separation agreement, as modified, was incorporated but not merged into the judgment of divorce. The Appellate Division found that the defendant demonstrated that the plaintiff breached the terms of the parties’ agreement, as modified, by failing, inter alia, to pay the real estate taxes on the former marital residence and to reimburse her for expenses incurred relative to the utilities, gardening, maintenance, and repairs. It held that where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. In order to be unequivocally referable, conduct must be inconsistent with any other explanation.  Contrary to the plaintiff’s contention, he failed to allege acts of part performance that were unequivocally referable to the alleged oral agreement to modify the terms of the parties’ separation agreement sufficient to obviate the need for a writing.


Family Offense petition against Respondents Attorney properly dismissed for lack of subject matter jurisdiction.  Attorney functioning only as counsel excluded from the definition of “intimate relationship”

  In Matter Uzamire v. Idehen, --- N.Y.S.3d ----, 2022 WL 2962620 (Mem), 2022 N.Y. Slip Op. 04729 (2d Dept.,2022) petitioner commenced related family offense proceedings against her husband, Ehigie Uzamere  and against Uzamere’s attorney, Austin I. Idehen. Family Court, inter alia, without a hearing, dismissed the petition asserted against Idehen for lack of subject matter jurisdiction. The Appellate Division affirmed. The Family Court is a court of limited jurisdiction, and thus, it “cannot exercise powers beyond those granted to it by statute.” Pursuant to Family Court Act § 812(1)(e), the Family Court’s jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household.” The definition of “members of the same family or household” includes “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship.” Expressly excluded from the definition of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” (Family Ct Act § 812[1][e]). Petitioner conceded that Idehen was not related to her by consanguinity and she did not allege any interactions with Idehen other than when Idehen functioned as Uzamere’s counsel. Thus, the court properly dismissed the petition asserted against Idehen for lack of subject matter jurisdiction. 

Supreme Court was not required to hold a hearing on custody enforcement petition which did not seek any relief related to custody

In Soumare v White, 206 A.D.3d 661, 170 N.Y.S.3d 148, 2022 N.Y. Slip Op. 03519 (2d Dept.,2022) in an order dated October 14, 2016, the Supreme Court awarded custody of the subject child, born in 2013, to the mother and directed, inter alia, that the father would have parental access with the child every Sunday for four hours. In March 2021, the father filed a petition to enforce the order, asserting that the mother was violating the order by failing to cooperate with its parental access provisions. The petition alleged, among other things, that on a recent Sunday, when the father arrived 10 minutes late to pick up the child for parental access, the mother left the pick-up location with the child, did not permit the parental access to occur, and then failed to bring the child to the next four parental access sessions. The Supreme Court addressed the father’s petition by conducting two conferences, at which both parties made statements under oath. The court then issued an order dated April 28, 2021, which, in large part, restated the provisions of the order dated October 14, 2016. In addition, the order added one hour to the father’s weekly parental access sessions, and included a provision stating that “[t]here is a 15 min window for all pick up and drop off’s.” The Appellate Division affirmed. It held that the Supreme Court was not required to hold a hearing on his enforcement petition. The father’s petition did not involve a custody determination, which, as a general matter, “should be rendered only after a full and plenary hearing and inquiry”. The petition did not seek any relief related to custody, but rather alleged only that the mother failed to drop off the child for parental access as required by the order dated October 14, 2016, and thus sought enforcement of that order. The court, after eliciting sworn statements from both parties, fashioned a workable remedy by reminding both parties of their obligations, awarding the father an additional hour of parental access each week, and directing that a 15–minute lateness window would apply to both the father’s pick-up time and the mother’s drop-off time.



Appellate Division, Third Department


Improper to grant summary judgment motion where facts if established, raised issues concerning whether the wife was meaningfully represented during the abbreviated negotiations, and also raised an inference that the husband did not intend on engaging in a good faith negotiation of the agreement 

In Spiegel v Spiegel, 206 A.D.3d 1178 (3d Dept.,2022) the Plaintiff (husband) and defendant (wife) were married in February 2011 after a lengthy period of cohabitation beginning in 2001. The parties had four children together (born in 2007, 2009, 2010 and 2017). Two days before they were married, the parties executed a prenuptial. In June 2019, the husband commenced an action for divorce. The wife answered and asserted two counterclaims, seeking an award of maintenance and a judgment setting aside the agreement as invalid. Supreme Court deemed the agreement valid and dismissed the wife’s counterclaims. The Appellate Division held,, inter alia,  viewing the evidence in the light most favorable to the wife, there were issues of fact raised by the circumstances surrounding the execution of the agreement that preclude an award of summary judgment. Prior to the marriage there was a pronounced financial disparity between the husband and the wife, who had no assets at the time of the marriage and was previously employed by the state. After cohabitating for approximately 10 years, the parties decided to get married and, at the husband’s insistence, resolved to enter into a prenuptial agreement. According to the wife, she had no discussion or input on counsel of her choice, and simply was forwarded a retainer agreement and statement of client rights from her counsel’s office, which she was unable to open and never executed. After consulting with his counsel over several days, the husband approved an initial draft of the agreement, which was forwarded to the wife’s counsel on January 27, 2011. Thereafter, negotiations on the agreement between counsel began in earnest on February 1, 2011 and continued over a three-day period. The parties executed a final version of the agreement on February 4, 2011, two days before they were married. The wife stated that she did not receive an initial draft of the agreement prior to consulting with counsel. While the wife conceded that she had a single conversation with her counsel that lasted between 30 and 45 minutes, the record failed to definitively establish that she had any further meaningful discussions with counsel during the ensuing negotiations. After that discussion, the wife’s counsel sent several proposed changes concerning the agreement to the husband’s counsel. The record demonstrated that, after receiving an email from his counsel concerning the proposed changes, the husband responded to his counsel that he understood the role of the wife’s counsel as one in which he would merely explain the terms of the proposed agreement, rather than serve as her representative in a negotiation on its terms. Specifically, the husband stated that he had hired the wife’s counsel “to make sure [that the wife] fully understands the agreement,” and not “to create friction,” “re-write the agreement” or “dig into issues he does not know about.” The husband also provided a list of various circumstances that the wife’s counsel did not understand and stated that he would not provide the wife’s counsel with a detailed list of his bank accounts because he was out of town and that the wife was already familiar with his finances. The wife sharply disputed the husband’s representation, claiming that she had little knowledge of the extent of the husband’s finances beyond some basic knowledge as to certain businesses he operated. The wife also averred that she and the husband had minimal discussions pertaining to the agreement beyond his bare statements that a prenuptial agreement was necessary to protect his business interests. The wife claimed that the husband told her on various occasions that without the agreement, there would be no wedding. The wife  represented that, during the negotiations, the husband told her that the agreement was as fair as it was going to get, and that she should just sign it and not focus on every detail. The wife stated that the husband provided various reassurances that he would always take care of her and that the agreement was “no big deal.” While the communications submitted by the husband in support of his motion indicate that counsel for the parties continued discussing potential changes to the agreement, there was conflicting evidence establishing the extent that the wife was meaningfully involved in those discussions. The wife averred that the first opportunity she had to review the agreement was in Florida, at which point it was already in its final form. These facts if established, raised issues concerning whether the wife was meaningfully represented during the abbreviated negotiations, and also raised an inference that the husband did not intend on engaging in a good faith negotiation of the agreement from the outset, which, if true, would be sufficient to establish overreaching on his part . Accordingly, it found find that Supreme Court improperly granted the husband’s motion.
Appellate Division, Fourth Department


Father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child is a “consent” father even if he has not as yet actually been able to form that relationship.

In Matter of Adoption of William, 206 A.D.3d 1696, 170 N.Y.S.3d 447, 2022 N.Y. Slip Op. 03831 (4th Dept.,2022)  the Appellate Division found that respondent-petitioner Douglas W.M. (father) was a consent father within the meaning of Domestic Relations Law § 111 (1) (e) and there  was a sound and substantial basis to support the determination of Family Court that the father demonstrated “his willingness to take parental responsibility” (Matter of Raquel Marie X., 76 N.Y.2d 387, 402, 559 N.Y.S.2d 855, 559 N.E.2d 418 [1990]) It held that a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship. The father did everything possible to manifest and establish his parental responsibility’ under the circumstances ... He publicly acknowledged his paternity from the outset of the pregnancy ..., and, although he did not pay any expenses in connection with the pregnancy or the birth,” he testified that all of those expenses were paid by the military. Moreover, prior to the child’s birth, the father pursued paternity testing and requested and received from the mother a commitment that he could have custody of the child, and actively began purchasing “items” in anticipation of obtaining custody of the child upon birth. Based on the mother’s commitment, the father enlisted the help of his military commanding officers to obtain custody of his child, and made plans for relatives or family friends to help care for the child until his enlistment in the military ended. It concluded that the father established his ability to assume custody of the child. Custody and housing are separate and distinct concepts. A parent who lacks housing for a child is not legally precluded from obtaining custody. Certainly, active military members should not lose custody of a child due to their service to our country. Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility. The record supports the court’s findings that the father “reasonably and sincerely believed that the biological mother would not surrender the child for adoption ..., and that she frustrated his efforts to become involved with the child. The evidence at the hearing established that the mother lied to the father, telling him that she would give him custody of the child; misled petitioners into believing that the father did not want the child, even though she knew that he was aggressively pursuing custody; and misled the courts by filing a false affidavit stating that no one was holding himself out as the father. It found that there was a basis in the record to support a court’s determination whether a father’s consent is required, and would not disturb that determination.


Fourth Department Rules that Absent compelling circumstances, parties to a matrimonial action should not seek review of an order for temporary support


In Baxter v Baxter, 162 A.D.3d 1743, 76 N.Y.S.3d 449  (4 Dept., 2018) the Appellate Divison affirmed that part of a temporary order that imputed income to plaintiff for the purposes of calculating child support and directed defendant to pay pendente lite child support. It held that the best remedy for “any claimed inequity in awards of temporary alimony, child support or maintenance is a speedy trial where the respective finances of the parties can be ascertained and a permanent award based on the evidence may be made. Absent compelling circumstances, parties to a matrimonial action should not seek review of an order for temporary support…. Plaintiff has failed to allege the existence of compelling circumstances warranting review of the award of pendente lite child support.(citations omitted)


A person is aggrieved when he or she asks for relief but that relief is denied in whole or in part, or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part.

In Matter of Brady J.S., v. Darla A.B., --- N.Y.S.3d ----, 2022 WL 3094973, 2022 N.Y. Slip Op. 04858 (4th Dept.,2022) the Appellate Division affirmed an order which modified a prior custody order to award the father joint custody with the mother and grandparents and shared physical residence with the grandparents, with zones of influence for the father and grandparents he father. The Appellate Division rejected the position taken by the father that neither the mother nor the AFC had standing to appeal. The mother was aggrieved by the order on appeal inasmuch as she had joint custody of the child with the grandparents and, through counsel, she opposed the father’s amended petition, which was granted, in part, by the order on appeal. A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part. The mother, as a joint custodian of the child, had a direct interest in the matter at issue that was affected by the result, and the adjudication had binding force against her rights, person or property. Based on its determination regarding the mother’s standing, it concluded that the AFC also had standing to appeal the order (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 71-74, 103 N.Y.S.3d 445 [2d Dept. 2019]]).
 
The Appellate Division held that the failure to conduct a Lincoln hearing does not require remittal under the circumstances of this case A Lincoln hearing, though often preferable, is not mandatory, and the determination is addressed to courts discretion. In determining whether such a hearing is warranted, the court must determine whether the in camera testimony of the child will on the whole benefit the child by obtaining for the Judge significant pieces of information he or she needs to make the soundest possible decision. Here, the court was able to discern the child’s wishes as a result of the position expressed by the AFC. 


An agreement is voidable on the ground of duress when threats of an unlawful act deprived the party of the exercise of free will.

In Campbell v Campbell, --- N.Y.S.3d ----, 2022 WL 3094725, 2022 N.Y. Slip Op. 04875 (4th Dept.,2022) the parties were married in June 1989 and entered into a postnuptial agreement on August 31, 2017. In July 2019, plaintiff commenced this action for divorce. Plaintiff asserted affirmative defenses alleging that the 2017 agreement should be found null and void or set aside on the grounds that, inter alia, he signed the 2017 agreement under duress and that the 2017 agreement was unconscionable. Defendant moved for summary judgment seeking, inter alia, an order dismissing plaintiff's affirmative defenses. Following a hearing, Supreme Court concluded that the 2017 agreement was unconscionable and manifestly unfair. The Appellate Division reversed. It found, among other things, that the Supreme Court erred insofar as it held that plaintiff signed the 2017 agreement under duress as a result of defendant’s emotional abuse. An agreement is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his [or her] free will. Generally, the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing. The threat must be such as to deprive the party of the exercise of free will. Even accepting as true plaintiff’s allegations that defendant persistently urged him to sign the 2017 agreement and threatened to tell the parties’ children of plaintiff’s wrongful actions in the past, such conduct did not amount to any unlawful acts on the part of defendant sufficient to constitute duress .


Laws of 2022


Laws of 2022, Ch 365, § 2, amended Family Court Act § 121 effective June 30, 2022 to read as follows:

§ 121. Number of judges
The family court within the city of New York shall consist of  sixty judges, effective January first, two thousand  twenty-three. There shall be at least one family court judge resident in each county of the city of New York. (NY Legis 365 (2022), 2022 Sess. Law News of N.Y. Ch. 365) 


Laws of 2022, Ch 365, § 3, amended Family Court Act § 131(d) and (g) effective June 30, 2022 to read as follows:

(d) In the county of Nassau there shall be  nine family court judges and the number of such judges now existing in said county is hereby increased accordingly.

(g) There shall be a separate office of judge of the family court for the counties of Oswego and Sullivan and the compensation payable for each such separate office of judge of the family court shall be twenty-five thousand dollars per annum. In the county of Saratoga there shall be  two additional family court  judges and the number of such judges now existing in such county is hereby increased accordingly. The compensation of such additional family court judge shall be the same as the compensation of the existing family court judge in such county. (NY Legis 365 (2022), 2022 Sess. Law News of N.Y. Ch. 365) 


Laws of 2022, Ch 479, § 7 amended Domestic Relations Law, 115, subdivision 5 effective July 26, 2022 to delete the words “mentally retarded” and replace them with the words “developmentally disabled.” It now reads:

5. Where the petition alleges that either or both of the birth parents of the child have been deprived of civil rights or are mentally ill or  developmentally disabled, proof shall be submitted that such disability exists at the time of the proposed adoption.(NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479) 

Laws of 2022, Ch 479, § 17 amended Family Court Act § 115(b) effective July 26, 2022 to delete the words “mentally defective or retarded” and replace them with the words “developmentally disabled’. It now reads:

(b) The family court has such other jurisdiction as is set forth in this act, including jurisdiction over habeas corpus proceedings and over applications for support, maintenance, a distribution of marital property and custody in matrimonial actions when referred to the family court by the supreme court, conciliation proceedings, and proceedings concerning physically handicapped and  developmentally disabled children. (NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479)

Laws of 2022, Ch 479, § 6 amended the third undesignated paragraph Domestic Relations Law, 13–d, subdivision 1 effective July 26, 2022 to delete the words “mental retardation” and replace them with the words “developmental disability. It now reads:

Rubella infection poses a grave threat to the unborn child, especially during the first four months of pregnancy. It can lead to miscarriage, stillbirth, or one or all of the tragic defects such as deafness, blindness, crippling congenital heart disease,  developmental disability and muscular and bone defects. (NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479) 

CPLR 4549 Added

The civil practice law and rules was amended by adding CPLR 4549, a new exception to the rule against hearsay. This was intended to relax the common law exclusion of the hearsay statement of a party's agent or employee, provided that the statement was on a matter within the scope of that employment or agency relationship, and made during the existence of the relationship. The amendment is intended to change the extent of authority that a proponent must show in order to make the hearsay statement of an opposing party's agent or employee admissible. While under current law it appears clear that a hearsay statement will be admissible if there was actual authority to speak on behalf of the party, such authority often may be shown only by implication in light of the circumstances of the employment or agency relationship. In practice, this tends to limit "speaking authority" to only the high levels of management. See 2021 NY Legis Memo 833.

CPLR § 4549 provides that an “statement offered against an opposing party shall not be excluded from evidence as hearsay if made by a person whom the opposing party authorized to make a statement on the subject or by the opposing party's agent or employee on a matter within the scope of that relationship and during the  existence of that relationship.  Laws of 2021, Ch 833, effective December 31, 2021



Laws of 2022, Ch 219, § 5 amended CPLR 3102 (e) effective June 13, 2022  to read as follows:

(e) Action pending in another jurisdiction. Except as provided in section three thousand one hundred nineteen of this article, when under any mandate, writ or commission issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness in the state, he or she may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state. The supreme court or a county court shall make any appropriate order in aid of taking such a deposition; provided that no order may be issued under this section in connection with an out-of-state proceeding relating to any abortion services or procedures which were legally performed in this state, unless such out-of-state proceeding (1) sounds in tort or contract, or is based on statute, (2) is actionable, in an equivalent or similar manner, under the laws of this state, and (3) was brought by the patient who received reproductive healthcare, or the patient's legal representative.


Laws of 2022, Ch 219, § 4 amended CPLR 3119 by adding a new subdivision  (g) effective June 13, 2022  to read as follows:

(g) Out-of-state abortion proceedings. Notwithstanding any other provisions of this section or any other law, no court or county clerk shall issue a subpoena under this section in connection with an out-of-state proceeding relating to any abortion services or procedures which were legally performed in this state, unless such out-of-state proceeding (1) sounds in tort or contract, or is based on statute, (2) is actionable, in an equivalent or similar manner, under the laws of this state, and (3) was brought by the patient who received reproductive healthcare, or the patient's legal representative.



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June 29, 2022

New and Revised Uniform Rules Applicable in Matrimonial Actions as of July 1, 2022

Administrative Order AO/141/22 adopted revisions to  Matrimonial Rules  22 NYCRR 202.16 and 202.16-b, which incorporated most of the recently enacted Commercial Division rules.  Administrative Order A/O/142/22 adopted a revised Preliminary Conference Stipulation/Order-Contested Matrimonial Forms (“PC Order”) for use in matrimonial matters effective July 1, 2022.   Click links for rules and orders.
         The Administrative Order makes most of 22 NYCRR Part 202, which includes the recently enacted Commercial Division Rules, applicable to matrimonial actions and proceedings, except as otherwise provided 22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b,  and 202.18,  which sections control in the event of conflict.   
          The Uniform Rules which are incorporated into the matrimonial rules include the following  rules which were added  to 22 NYCRR Part 202 effective February 1, 2021: 22 NYCRR 202.8-a; 22 NYCRR 202.8-b; 22 NYCRR 202.8-c; 22 NYCRR 202.8-d; 22 NYCRR 202.8-e; 22 NYCRR 202.8-f and 22 NYCRR 202.8-g; 22 NYCRR 202.10; 22 NYCRR 202.11; 22 NYCRR 202.20; 22 NYCRR 202.20-a; 22 NYCRR 202.20-b; 22 NYCRR 202.20-c; 22 NYCRR 202.20-d; 22 NYCRR 202.20-e; 22 NYCRR 202.20-f; 22 NYCRR 202.20-g; 22 NYCRR 202.20-h; 22 NYCRR 202.20-I; 22 NYCRR 202.20-j; 22 NYCRR 202.23; 22 NYCRR 202.29; 22 NYCRR 202.34; and 22 NYCRR 202.37.
          In addition, the Uniform Rules which are incorporated into the matrimonial rules  include the following rules which were amended: 22 NYCRR 202.1, Added (f) & (g) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5, Amended (a)(1) & added (a)(2) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5-a, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.6, Amended (b) on Jan. 7, 2022, effective February 1, 2022; 22 NYCRR 202.26 , Amended on Dec. 29. 2020, effective February 1, 2021; and 22 NYCRR 202.28, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021.  
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April 27, 2022

Recent Legislation (new matter underlined)
 
Domestic Relations Law 13-b 
Laws of 2022, Ch 56,§ 39 amended Domestic Relations Law 13-b to read as follows:
   
   § 13-b. Time within which marriage may be solemnized. A marriage shall
   not be solemnized within twenty-four hours after  the  issuance  of  the
   marriage  license, unless authorized by an order of a court of record as
   hereinafter provided, nor shall it be solemnized after sixty  days  from
   the  date  of  the  issuance  of  the marriage license unless authorized
   pursuant to section ten of the
   veterans'  services  law.  Every  license to marry hereafter issued by a
   town or city clerk, in addition to other requirements specified by  this
   chapter, must contain a statement of the day and the hour the license is
   issued  and  the  period during which the marriage may be solemnized. It
   shall be the duty of the clergyman or magistrate performing the marriage
   ceremony, or if the marriage is solemnized by written contract,  of  the
   judge  before  whom the contract is acknowledged, to annex to or endorse
   upon the marriage license the date and hour the marriage is  solemnized.
   A  judge  or  justice  of  the supreme court of this state or the county
   judge of the county in which either party to be married resides, or  the
  judge  of  the  family  court of such county, if it shall appear from an
   examination of the license and any other proofs submitted by the parties
   that one of the parties is in danger of imminent death, or by reason  of
   other  emergency  public interest will be promoted thereby, or that such
   delay will work irreparable injury or great hardship upon the  contract-
   ing  parties, or one of them, may, make an order authorizing the immedi-
   ate  solemnization  of  the marriage and upon filing such order with the
   clergyman or magistrate performing the  marriage  ceremony,  or  if  the
   marriage  is to be solemnized by written contract, with the judge before
   whom the contract is acknowledged,  such  clergyman  or  magistrate  may
   solemnize  such  marriage, or such judge may take such acknowledgment as
   the case may be, without waiting for such three day period  and  twenty-
   four hour period to elapse. The clergyman, magistrate or judge must file
   such  order  with  the  town or city clerk who issued the license within
   five days after the marriage is solemnized. Such town or city clerk must
   record and index the order in the book required to be kept by him or her
   for recording affidavits, statements, consents and licenses, and when so
   recorded the order shall become a public record  and  available  in  any
   prosecution  under this section. A person who shall solemnize a marriage
   in violation of this section shall be guilty of a misdemeanor  and  upon
   conviction thereof shall be punished by a fine of fifty dollars for each
   offense,  and  in  addition  thereto,  his  or  her right to solemnize a
   marriage shall be suspended for ninety days.
 
 
Domestic Relations Law § 14-a (3)(a) 
Laws of 2022, Ch 56, § 3.Amended Domestic Relations Law § 14-a (3)(a) to read as follows:
 
     a.  No  fee  shall be charged for any certificate when required by the
   United States department  of  veterans  affairs  or  by  the 
   department  of veterans' services of the state of New York to be used in
   determining the eligibility of any person to participate in the benefits
   made available by the United States department of veterans affairs or by
   the state of New York.
 
   
 Domestic Relations Law §19(1)
  Laws of 2022, Ch 56, § 4. amended Domestic Relations Law §19(1)to read as follows:
 
     1. Each town  and  city  clerk  hereby  empowered  to  issue  marriage
   licenses shall keep a book supplied by the state department of health in
   which  such clerk shall record and index such information as is required
   therein, which book shall be kept and preserved as a part of the  public
   records  of  his  or  her  office. Whenever an application is made for a
   search of such records the city or town clerk, excepting the city  clerk
   of  the city of New York, may make such search and furnish a certificate
   of the result to the applicant upon the payment of a fee of five dollars
   for a search of one year and a further fee of one dollar for the  second
   year  for  which such search is requested and fifty cents for each addi-
   tional year thereafter, which fees shall be  paid  in  advance  of  such
   search.  Whenever an application is made for a search of such records in
   the city of New York, the city clerk of the city of New  York  may  make
   such  search  and  furnish  a certificate of the result to the applicant
   upon the payment of a fee of five dollars for a search of one year and a
   further fee of one dollar for  the  second  year  for  which  search  is
   requested and fifty cents each additional year thereafter. Notwithstand-
   ing any other provision of this article, no fee shall be charged for any
   search  or  certificate when required by the United States department of
   veterans affairs or by the department of  veterans'  services
   of  the  state  of New York to be used in determining the eligibility of
   any person to participate in the benefits made available by  the  United
   States  department  of veterans affairs or by the state of New York. All
   such affidavits, statements and consents, immediately upon the taking or
   receiving of the same by the town or city clerk, shall be  recorded  and
   indexed  as  provided  herein  and  shall  be public records and open to
   public inspection whenever the same may be  necessary  or  required  for
   judicial  or  other  proper  purposes. At such times as the commissioner
   shall direct, the said town or city clerk, excepting the city  clerk  of
   the  city  of New York, shall file in the office of the state department
   of health the original of each affidavit, statement, consent, order of a
   justice  or  judge  authorizing  immediate  solemnization  of  marriage,
   license and certificate, filed with or made before such clerk during the
   preceding  month.  Such  clerk shall not be required to file any of said
   documents with the state department  of  health  until  the  license  is
   returned  with  the  certificate showing that the marriage to which they
   refer has been actually performed.
     The county clerks of the counties comprising  the  city  of  New  York
   shall  cause  all  original  applications and original licenses with the
   marriage solemnization statements thereon heretofore  filed  with  each,
   and  all  papers and records and binders relating to such original docu-
   ments pertaining to marriage licenses issued  by  said  city  clerk,  in
   their  custody  and possession to be removed, transferred, and delivered
   to the borough offices of the city clerk in each of said counties.
 
      
Domestic Relations Law §20-c
Laws of 2022, Ch 57, §1 added Section 20-c to the Domestic Relations Law to read as follows:
 
     §  20-c.  Certification of marriage; new certificate in case of subse-
   quent change of name or gender. 1. A new marriage certificate  shall  be
   issued  by the town or city clerk where the marriage license and certif-
   icate was issued, upon receipt of proper proof of a change  of  name  or
   gender designation. Proper proof shall consist of: (a) a judgment, order
   or  decree  affirming  a  change of name or gender designation of either
   party to a marriage; (b) an amended birth  certificate  demonstrating  a
   change  of  name  or  gender designation; (c) in the case of a change of
   gender designation, a notarized affidavit from the individual  attesting
   to their change of gender designation; or (d) such other proof as may be
   established by the commissioner of health.
     2.  When  a new marriage certificate is made pursuant to this section,
   the town or city clerk shall substitute such  new  certificate  for  the
   marriage  certificate  then  on  file,  if any, and shall send the state
   commissioner of health a digital copy of the new marriage certificate in
   a format prescribed by the commissioner, with the exception of the  city
   clerk  of  New  York who shall retain their copy. The town or city clerk
   shall make a copy of the new marriage certificate for the  local  record
   and  hold the contents of the original marriage certificate confidential
   along with all supporting documentation, papers  and  copies  pertaining
   thereto.  It shall not be released or otherwise divulged except by order
   of a court of competent jurisdiction.
     3. The town or city clerk shall be entitled to a fee  of  ten  dollars
   for  the  amendment  and  certified  copy of any marriage certificate in
   accordance with the provisions of this section.
     4. The state commissioner of health may, in their  discretion,  report
   to  the  attorney  general  any  town or city clerk that, without cause,
   fails to issue a new marriage certificate upon receipt of  proper  proof
   of  a  change  of  name  or  gender  designation in accordance with this
   section. The attorney general shall thereupon, in the name of the  state
   commissioner of health or the people of the state, institute such action
   or  proceeding  as  may  be necessary to compel the issuance of such new
   marriage certificate.
 
      (§2 of the Act provides that this provision is effective six months
   After it shall have  become a law.)
 
Family Court Act §302.1(4)
 
Laws of 2022, Ch 56 § 1 amended Family Court Act §302.1 by adding   a new subdivision 4 to read as follows:
  
   4. Where a proceeding had been commenced in the youth part of a  supe-
   rior court for an act alleged to have been committed prior to his or her
   eighteenth birthday and then had been removed to family court, the fami-
   ly court shall exercise jurisdiction under this article, notwithstanding
   the  fact  that  the respondent may be over the age of eighteen prior to
   the proceeding having commenced in the family court.
 
Family Court Act § 302.2  
Laws of 2022, Ch  56, § 2 amended Family Court Act § 302.2  to read as follows:
  
  § 302.2. Statute of limitations.  A  juvenile  delinquency  proceeding
   must  be commenced within the period of limitation prescribed in section
   30.10 of the criminal procedure law or, unless  the  alleged  act  is  a
   designated  felony  as  defined in subdivision eight of section 301.2 of
   this part or is an act allegedly committed when the respondent was  aged
   sixteen  years  or  older,  commenced before the respondent's eighteenth
   birthday, whichever occurs earlier, provided  however,  that  consistent
   with  subdivision  four  of  section  302.1 of this part,   a proceeding
   commenced for an act allegedly committed when the  respondent  was  aged
   sixteen  years  or  older  shall be considered timely if it is commenced
   within such period of limitation prescribed  in  section  30.10  of  the
   criminal  procedure law or prior to the respondent's twentieth birthday,
   whichever  occurs  earlier,  regardless  of  whether  the   action   had
   originally  been commenced prior to the respondent's eighteenth birthday
   in a youth part of a superior court. When the alleged act constitutes  a
   designated  felony  as  defined in subdivision eight of section 301.2 of
   this part or is an act allegedly committed when the respondent was  aged
   sixteen  years  or  older, such proceeding must be commenced within such
   period of limitation or  before  the  respondent's  twentieth  birthday,
   whichever occurs earlier.
 
Family Court Act §309.1

Laws of 2022, Ch 56, §  3 amended the Family Court Act by adding a new section 309.1 to read as follows:
 
     § 309.1. Community based  treatment  referrals.  1.  A  youth  who  is
   released  prior  to  the filing of a petition shall be made aware of and
   referred to community based organizations  offering  counseling,  treat-
   ment,  employment, educational, or vocational services in which they may
   voluntarily enroll or participate. Such services shall be separate  from
   and  in addition to any adjustment services provided under section 308.1
   of this part, where applicable.
     2. The youth shall be advised that the  service  referrals  are  being
   made  as  a  resource  and  participation  in them is voluntary and that
   refusal to participate will not negatively impact any  aspect  of  their
   pending  case.  Provided, however, nothing shall preclude the youth from
   voluntarily providing information, after consulting with their attorney,
   demonstrating  successful  enrollment,  participation,  and  completion,
   where  applicable,  of  any  such services. The court shall consider any
   information provided by the youth regarding such  participation  in  the
   case proceedings including but not limited to dispositional or placement
   determinations.  The  court may require supporting documentation for any
   such consideration that the youth requests, provided however, that  such
   information  shall  be maintained as confidential in accordance with any
  applicable state or federal law.
     3. No statements made to probation when discussing any service  refer-
   rals under this section shall be admissible in a fact-finding hearing.
 
     (§ 4 of the Act provides.  This  act  shall take effect immediately;  provided that section three of this act shall apply to offenses committed  on  or  after  such    date  and  to  offenses for which the statute of limitations that was in effect prior to such date has not elapsed as of such date.)
 
 
 
Juvenile Delinquincy Amendments  (new matter underlined)

Laws of 2022 Ch 38 approved February 24, 2022, effective December 29, 2022
amended  Chapter 810 of the laws of 2021 by making technical changes related to the law defining the age in which a youth would be considered a juvenile delinquent. The amendment takes effect one year after it shall have become a law.
 
Family Court Act § 117 (b) opening paragraph: 
    Laws of 2022, Ch 38, Section 1 amended Family Court Act § 117 (b) opening    paragraph to read as follows:
 
     For every juvenile delinquency proceeding under article three  involv-
   ing  an  allegation of an act committed by a person which, if done by an
   adult, would be a crime (i) defined in sections 125.27  (murder  in  the
   first  degree); 125.25 (murder in the second degree); 135.25 (kidnapping
   in the first degree); or 150.20 (arson in the first degree) of the penal
   law committed by a person thirteen, fourteen, fifteen, sixteen,  or
   seventeen  years  of  age; or such conduct committed as a sexually moti-
   vated felony, where authorized pursuant to section 130.91 of  the  penal
   law;  (ii)  defined  in  sections  120.10 (assault in the first degree);
   125.20 (manslaughter in the first degree); 130.35  (rape  in  the  first
   degree);  130.50  (criminal  sexual  act  in  the  first degree); 130.70
   (aggravated sexual abuse in the first degree); 135.20 (kidnapping in the
   second degree), but only where the abduction involved the use or  threat
   of use of deadly physical force; 150.15 (arson in the second degree); or
   160.15  (robbery  in  the  first degree) of the penal law committed by a
   person thirteen, fourteen, fifteen, sixteen, or seventeen years  of
   age;  or  such  conduct  committed as a sexually motivated felony, where
   authorized pursuant to section 130.91 of the penal law; (iii) defined in
   the penal law as an attempt to commit murder  in  the  first  or  second
   degree or kidnapping in the first degree committed by a person thirteen,
   fourteen,  fifteen,  sixteen,  or  seventeen years of age; or such
   conduct committed as  a  sexually  motivated  felony,  where  authorized
   pursuant  to  section  130.91  of the penal law; (iv) defined in section
   140.30 (burglary in the first degree); subdivision one of section 140.25
   (burglary in the second  degree);  subdivision  two  of  section  160.10
   (robbery  in  the  second degree) of the penal law; or section 265.03 of
   the penal law, where such machine gun or such firearm  is  possessed  on
   school  grounds,  as  that  phrase is defined in subdivision fourteen of
   section 220.00 of the penal law committed by  a  person  fourteen  [or],
   fifteen,  sixteen,  or seventeen years of age; or such conduct committed
   as a sexually motivated felony, where  authorized  pursuant  to  section
   130.91  of  the penal law; (v) defined in section 120.05 (assault in the
   second degree) or 160.10 (robbery in the second degree) of the penal law
   committed by a person fourteen,  fifteen,  sixteen,  or  seventeen
   years  of  age  but only where there has been a prior finding by a court
   that such person has previously committed an act which, if committed  by
   an adult, would be the crime of assault in the second degree, robbery in
   the  second degree or any designated felony act specified in clause (i),
   (ii)  or  (iii) of this subdivision regardless of the age of such person
   at the time of the commission of the prior act; or  (vi)  other  than  a
   misdemeanor, committed by a person at least twelve but less than
   eighteen  years  of age, but only where there have been
   two prior findings by the court that such person has committed  a  prior
   act which, if committed by an adult,  would be a felony:
 
 
Family Court Act § 301.2 (1)

Laws of 2022 Ch 38 §  2 amended Family Court Act § 301.2 (1) to read as follows:
 
     1. "Juvenile delinquent" means a person over
   seven  and  less  than  sixteen  years  of age, or commencing on October
   first, two thousand eighteen a person over seven and less than seventeen
   years of age, and commencing October  first,  two  thousand  nineteen  a
   person  over  seven  and  less  than  eighteen years of age, who, having
   committed an act that would constitute a crime, or  a  violation,  where
   such  violation  is  alleged to have occurred in the same transaction or
   occurrence of the alleged criminal act, if committed by an adult, (a) is
   not criminally responsible for such conduct by reason of infancy, or (b)
   is the defendant in an action ordered removed from a criminal  court  to
   the  family  court  pursuant to article seven hundred twenty-five of the
   criminal procedure law.
     
 
Family Court Act § 301.2 (1) 
 
Laws of 2022 Ch 38 §  3 amended Family Court Act § 301.2 (1) to read as follows:
 
 
     1. "Juvenile delinquent" means:
     (a)(i)  a person at least twelve and less than eighteen years of age, having committed an act that would  constitute  a  crime  if  committed  by  an
adult; or
     (ii)  a person over sixteen and less than seventeen years of age or, a
   person over sixteen and less than eighteen years of age commencing Octo-
   ber first, two thousand nineteen, having committed an act that  would
   constitute  a violation as defined by subdivision three of section 10.00
   of the penal law if committed by  an  adult,  where  such  violation  is
   alleged  to  have  occurred in the same transaction or occurrence of the
   alleged criminal act; or
     (iii) a person over the age of seven and less than twelve years of age
   having committed an act that  would  constitute  one  of  the  following
   crimes,  if  committed  by an adult: (A) aggravated criminally negligent
   homicide as defined in section 125.11 of the penal  law;  (B)  vehicular
   manslaughter  in  the  second degree as defined in section 125.12 of the
   penal law; (C) vehicular manslaughter in the first degree as defined  in
   section  125.13  of  the penal law; (D) aggravated vehicular homicide as
   defined in section 125.14 of the penal  law;  (E)  manslaughter  in  the
   second  degree  as  defined  in  section  125.15  of  the penal law; (F)
   manslaughter in the first degree as defined in  section  125.20  of  the
   penal  law;  (G) aggravated manslaughter in the second degree as defined
   in section 125.21 of the penal law; (H) aggravated manslaughter  in  the
   first  degree  as defined in section 125.22 of the penal law; (I) murder
   in the second degree as defined in section 125.25 of the penal law;  (J)
   aggravated murder as defined in section 125.26 of the penal law; and (K)
   murder  in  the  first  degree as defined in section 125.27 of the penal
   law; and
     (b) who is:
     (i) not criminally responsible for such conduct by  reason  of  infan-
   Cy ; or
     (ii) the defendant in an action ordered removed from a crimi-
   nal  court to the family court pursuant to article seven hundred twenty-
   five of the criminal procedure law.
  
 
Family Court Act § 301.2 (8) 
 
Laws of 2022 Ch 38  § 4  Amended Family Court Act § 301.2 (8) to read as follows:
 
     8. "Designated felony act" means an act which, if done  by  an  adult,
   would  be  a  crime: (i) defined in sections 125.27 (murder in the first
   degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the
   first degree); or 150.20 (arson in the first degree) of  the  penal  law
   committed by a person thirteen, fourteen, fifteen, sixteen, or seventeen
   years  of age; or such conduct committed as a sexually motivated felony,
   where authorized pursuant to section  130.91  of  the  penal  law;  (ii)
   defined  in  sections  120.10  (assault  in  the  first  degree); 125.20
   (manslaughter in the first degree); 130.35 (rape in the  first  degree);
   130.50  (criminal  sexual  act  in the first degree); 130.70 (aggravated
   sexual abuse in the first degree);  135.20  (kidnapping  in  the  second
   degree)  but  only where the abduction involved the use or threat of use
   of deadly physical force; 150.15 (arson in the second degree) or  160.15
   (robbery  in  the  first  degree) of the penal law committed by a person
   thirteen, fourteen, fifteen, sixteen, or seventeen years of age; or such
   conduct committed as  a  sexually  motivated  felony,  where  authorized
   pursuant  to section 130.91 of the penal law; (iii) defined in the penal
   law as an attempt to commit murder in the  first  or  second  degree  or
   kidnapping in the first degree committed by a person thirteen, fourteen,
   fifteen,  sixteen,  or seventeen years of age; or such conduct committed
   as  a  sexually  motivated  felony, where authorized pursuant to section
   130.91 of the penal law; (iv) defined in section 140.30 (burglary in the
   first degree); subdivision one of section 140.25 (burglary in the second
   degree); subdivision two  of  section  160.10  (robbery  in  the  second
   degree) of the penal law; or section 265.03 of the penal law, where such
   machine  gun  or  such  firearm  is possessed on school grounds, as that
   phrase is defined in subdivision fourteen of section 220.00 of the penal
   law committed by a person fourteen, fifteen, sixteen, or  seventeen
   years  of age; or such conduct committed as a sexually motivated felony,
   where authorized pursuant to  section  130.91  of  the  penal  law;  (v)
   defined  in  section  120.05  (assault  in  the second degree) or 160.10
   (robbery in the second degree) of the penal law committed  by  a  person
   fourteen,  fifteen,  sixteen  or  seventeen  years of age but only where
   there has been a prior finding by a court that such person has previous-
   ly committed an act which, if committed by an adult, would be the  crime
   of  assault  in  the  second degree, robbery in the second degree or any
   designated felony act specified in paragraph (i), (ii), or (iii) of this
   subdivision regardless of the age of such person  at  the  time  of  the
   commission  of the prior act; (vi) other than a misdemeanor committed by
   a person at least twelve but less than eighteen years of age,  but  only
   where  there  have been two prior findings by the court that such person
   has committed a prior act which, if committed by an adult,  would  be  a
   felony.
 
 
Family Court Act §304.1 (3) 
 
Laws of 2022 Ch 38  §  5. Amended Family Court Act §304.1 (3) to read as follows:
 
 
     3. The detention of a child under ten years  of  age  in  a
   secure  detention  facility  shall  not  be  directed  under  any of the
   provisions of this article.
 
 
 
Family Court Act §304.1 (3)

Laws of 2022 Ch 38 §  6. Amended Family Court Act §304.1 (3)to read as follows:
 
     3.  The  detention  of  a child under  thirteen years of age in a
   secure detention facility shall not be directed, unless such child is at
   least ten years old and is considered a juvenile delinquent pursuant  to
   subparagraph  (iii) of paragraph (a) of subdivision one of section 301.2
   of this article, nor shall the detention of a child  adjudicated  solely
   for  an  act that would constitute a violation as defined in subdivision
   three of section 10.00 of the penal law, be directed under  any  of  the
   provisions of this article.
 
 
Social Services Law §409-a(1)(a)
Laws of 2022 Ch 38 §  7. Amended Social Services Law §409-a (1)(a) to read as follows:
 
 
   (a)  A social services official shall provide preventive services to a
   child and his or her family, in accordance  with  the  family's  service
   plan  as required by section four hundred nine-e of this chapter and the
   social services district's child welfare  services  plan  submitted  and
   approved pursuant to section four hundred nine-d of this chapter, upon a
   finding  by such official that (i) the child will be placed, returned to
   or continued in foster care unless such services are provided  and  that
   it  is  reasonable  to believe that by providing such services the child
   will be able to remain with or be returned to his or her family, and for
   a former foster care youth under the age of twenty-one who was previous-
   ly placed in the care and custody or custody  and  guardianship  of  the
   local commissioner of social services or other officer, board or depart-
   ment  authorized  to  receive  children  as  public  charges where it is
   reasonable to believe that by providing such services the former  foster
   care  youth  will avoid a return to foster care or (ii) the child is the
   subject of a petition under article seven of the family court act or  by
   the  probation  service,  to  be  at risk of being the subject of such a
   petition, and the social services official determines that the child  is
   at  risk  of  placement into foster care or (iii) the child is under the
   age of twelve, the child does not fall under the definition of  a  juve-
   nile delinquent pursuant to  subparagraph (iii) of para-
   graph  (a)  of  subdivision one of section 301.2 of the family court act
   and but for their age, their behavior would bring them within the juris-
   diction of the family court pursuant to  article  three  of  the  family
   court act, and the social services official determines that the child is
   at  risk of placement into foster care. Such finding shall be entered in
   the child's uniform case record established and maintained  pursuant  to
   section  four  hundred  nine-f  of  this article. The commissioner shall
   promulgate regulations to assist social  services  officials  in  making
   determinations  of eligibility for mandated preventive services pursuant
   to this subparagraph.
 
 
Laws of 2022 Ch 38 §  6 Effective date 
   Laws of 2022 Ch 38 §  6  §  13 provides that the amendments shall  take effect on the same date and in the same manner as a chapter of the laws of 2021 amending the family  court  act, the  social  services  law and the executive law relating to raising the lower age of juvenile delinquency jurisdiction from  age  seven  to  age twelve  and  establishing  differential  response  programs for children under the age of twelve, as proposed in  legislative  bills  numbers  S.4051-A  and  A. 4982-A, takes effect; provided, however, that the amendments to subparagraph (ii) of paragraph (a) of subdivision 1 of  section
409-a of the social services law made by section seven of this act shall
not  affect  the  expiration of such subparagraph and shall be deemed to
expire therewith.


March 9, 2022
 
Revised Forms Released 
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2022. These revisions reflect the required statutory adjustment on March 1, 2022 of the combined income cap under the Child Support Standards Act from $154,000  to $163,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $192,000 to $203,000.  Both of these adjustments  are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2022 in the Self Support Reserve from  $17,388 to $18,346.50  and in the federal Poverty Level Income for a single person from $12,880 to $13,590.

Uncontested Divorce Forms were revised March 1, 2022  reflecting these changes
The uncontested divorce packet and the following forms in uncontested divorce packet were revised: UD-8(2) Maintenance Guidelines Worksheet; UD -8(3) Child Support Worksheet; UD -10 Findings of Fact And Conclusions Of Law: UD -11 Judgment of Divorce; UD -13 Uncontested Matrimonial Request For Judicial Intervention
Worksheets for both Contested and Uncontested Divorces were revised March 1, 2022 reflecting these changes
The following contested divorce worksheets were revised: Temporary Maintenance Guidelines worksheet (for divorces started on or after 10/25/15); Post-Divorce Maintenance/Child Support Worksheet
 
Amendments to Domestic Relations Law §240-d (5)  and Family Court Act § 413-b 
Domestic Relations Law §240-d (5) and Family Court Act § 413-b which were enacted in 2021 (Laws of 2021, Ch.437) were amended to clarify that an order of support for an adult with developmental disabilities is not applicable to services under section 111-g of the social services law. Subdivision 6 was added to provide that a court's finding concerning a person's disability status is not binding on the state, a local government, or the person, for any other purpose, including whether the person is eligible for services from the state office for people with developmental disabilities. Laws of 2022, Ch 110, approved February 24, 2022, effective October 8, 2021
 
 
               Subdivision 5 was amended and a new subdivision 6 was added to read as follows:
 
               5. Except where inconsistent with this section, all provisions of this
   article relating to orders of child support shall apply to all orders of
   support for adults with developmental disabilities;  provided,  however,
   that  such orders shall not be eligible for services pursuant to section
   one hundred eleven-g of the social services law.
 
               6. A determination made pursuant to this section that the person is or
   is not developmentally disabled, as defined in subdivision twenty-two of
   section 1.03 of the mental hygiene law, shall  not  be  binding  on  the
   state, a local government or the person for any other purpose, including
   determinations  of eligibility for services authorized by the office for
   people with developmental disabilities. (new matter in bold)

March 1, 2022
 
Release of Revised forms and Child Support Standards Chart on March 1, 2022  
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2022. These revisions reflect the required statutory adjustment on March 1, 2022 of the combined income cap under the Child Support Standards Act from $154,000 to $163,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $192,000 to $203,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2022 in the Self Support Reserve from $17,226, to $18,347 and in the federal Poverty Level Income for a single person from $12,760 to $13,590.
 
The following forms were revised:
 
Preliminary conference stipulation/order contested matrimonial
Maintenance Guidelines Worksheet (UD-8 (2))
Child Support Worksheet (UD-8 (3))
Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)
Combined Worksheet for Maintenance and Child Support
Child Support Standards Act Chart

February 9, 2022
 
22 NYCRR 202.6 - Request for judicial intervention Rule Amended Effective February 1, 2022 to include in subdivision (b) that a request for judicial intervention shall be filed, without fee for an application for a  “change of sex designation” 
Section 202.6. Request for judicial intervention
(a) At any time after service of process, a party may file a request for judicial intervention. Except as provided in subdivision (b) of this section, in an action not yet assigned to a judge, the court shall not accept for filing a notice of motion, order to show cause, application for ex parte order, notice of petition, note of issue, notice of medical, dental or podiatric malpractice action, statement of net worth pursuant to section 236 of the Domestic Relations Law or request for a preliminary conference pursuant to section 202.12(a) of this Part, unless such notice or application is accompanied by a request for judicial intervention. Where an application for poor person relief is made, payment of the fee for filing the request for judicial intervention accompanying the application shall be required only upon denial of the application. A request for judicial intervention must be submitted, in duplicate, on a form authorized by the Chief Administrator of the Courts, with proof of service on the other parties to the action (but proof of service is not required where the application is ex parte).
 
(b) A request for judicial intervention shall be filed, without fee, for any application to a court not filed in an action or proceeding, as well as for a petition for the sale or finance of religious/not-for-profit property, an application for change of name or change of sex designation, a habeas corpus proceeding where the movant is institutionalized, an application under CPLR 3102(e) for court assistance in obtaining disclosure in an action pending in another state, a retention proceeding authorized by article 9 of the Mental Hygiene Law, a proceeding authorized by article 10 of the Mental Hygiene Law, an appeal to a county court of a civil case brought in a court of limited jurisdiction, an application to vacate a judgement on account of bankruptcy, a motion for an order authorizing emergency surgery, or within the City of New York, an uncontested action for a judgment for annulment, divorce or separation commenced pursuant to article 9, 10 or 11 of the Domestic Relations Law, and an application for an extreme risk protection order.
 
(c) In the counties within the City of New York, when a request for judicial intervention is filed, the clerk shall require submission of a copy of the receipt of purchase of the index number provided by the County Clerk, or a written statement of the County Clerk that an index number was purchased in the action. Unless otherwise authorized by the Chief Administrator, the filing of a request for judicial intervention pursuant to this section shall cause the assignment of the action to a judge pursuant to section 202.3 of this Part. The clerk may require that a self-addressed and stamped envelope accompany the request for judicial intervention.

January 16, 2022  

Court Rules

22 NYCRR 202.5-c Electronic Document Delivery System (new)


The Chief Administrator promulgated  new section 202.5-c of the Uniform Civil Rules for the Supreme and County Courts, effective immediately, to read as follows: 

§ 202.5-c. Electronic Document Delivery System. 

(a) Court documents may be transmitted to the courts of the unified court system by means of the electronic document delivery system (“EDDS”) only to the extent and in the manner provided in this section. For purposes of this section, “clerk of the court” shall mean the county clerk where the court is the Supreme Court or a County Court, and the chief clerk of the court where it is any other court. 

(b) How to use the EDDS. In order for a party to a court action or proceeding to use the EDDS to transmit one or more court documents to a court, such party must: (1) have use of a computer or other electronic device that permits access to the Internet, an email address and telephone number, and a scanner to digitize documents or some other device by which to convert documents into an electronically transmissible form; and (2) access a web site provided by the UCS for the transmission of the document(s) by the EDDS and, using that web site: (i) select a court to be the recipient of the document(s) and, where the Chief Administrator has authorized use of the EDDS for the filing of documents in an action or proceeding and the party is using the EDDS for such purpose, so indicate, (ii) enter certain basic information about the action or proceeding; (iii) upload the document(s) thereto in pdf or some other format authorized by the Chief Administrator of the Courts; and (iv) if a fee is required for the filing of the document(s), follow the on-line instructions for payment of that fee. 

(c) When may the EDDS be used. The EDDS may be used for the transmission of documents in such courts and in such classes of cases, and for such purposes including the filing thereof with a court, as may be authorized by order of the Chief Administrator. Notwithstanding any other provision hereunder: (1) a party may not use the EDDS to transmit documents in a court action or proceeding in a court in a county in which consensual or mandatory e-filing is available in such an action or proceeding, except that EDDS may be used in such a county for the purpose of (i) converting a pending action to e-filing in accordance with section 202.5-b(2)(iv) of these rules, (ii) transmitting exhibits for a conference, hearing, or trial; or (iii) any other use as may be authorized by the Chief Administrator; (2) unless the Chief Administrator shall otherwise provide as to a particular court or class of cases, a party may only use the EDDS for the transmission of documents for a purpose other than for filing in an action or proceeding; (3) where the Chief Administrator authorizes use of the EDDS for the transmission of documents for filing with a court in an action or proceeding, any such documents shall not be deemed filed until the clerk of such court or his or her designee shall have reviewed the documents and determined (i) that they are complete, (ii) that any fee that is required before the documents may be filed has been paid, (iii) that the documents include proof of service upon the other party or parties to the action or proceeding when proof of service is required

December 29, 2021

Laws of 2021, Chapter 833 adds CPLR 4249
The civil practice law and rules was amended by adding CPLR 4549, a new exception to the rule against hearsay. This was intended to  relax the common law exclusion of the hearsay statement of a party's agent or employee, provided that the statement was on a matter within the scope of that employment or agency relationship, and made during the existence of the relationship. The amendment is intended to change the extent of authority that a proponent must show in order to make the hearsay statement of an opposing party's agent or employee admissible. While under current law it appears clear that a hearsay statement will be admissible if there was actual authority to speak on behalf of the party, such authority often may be shown only by implication in light of the circumstances of the employment or agency relationship. In practice, this tends to limit "speaking authority" to only the high levels of management. See 2021 NY Legis Memo 833

CPLR §  4549 provides that an “statement offered against an opposing party shall not be excluded from evidence as hearsay if made by a person whom the opposing party authorized to make a statement on the subject or by the opposing party's agent or employee on a matter within the scope of that relationship and during the  existence of that relationship.  Laws of 2021, Ch 833, effective December 31, 2021



November 24, 2021

Laws of 2021, Ch 509, §1 amended Domestic Relations Law §236 (B)(5)(d), effective October 25, 2021

Laws of 2021, Ch 509, §1 amended Domestic Relations Law §236 (B)(5)(d), effective October 25, 2021 to renumber subparagraph 14 as subparagraph 15, and add a new subparagraph 14 is added to require that courts consider the best interest of companion animals when awarding possession of the animal during divorce or separation proceedings. 

This provision applies where it is determined that the companion animal is marital property. 

The rationale for the amendment appears in the sponsors memorandum in support of the legislation. It states that custody decisions involving pets in divorce proceedings are not uncommon. Courts typically deal with pets in divorce proceedings as they do with personal property such as cars and furniture. For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce. It observed that in "2017, Alaska became the first state in the country to require courts to consider the welfare of household pets when determining custody of such pets in divorce proceedings. It is now time for New York to pass similar legislation." It appears that the sponsors believed that if it is good for Alaska, it is good for New York.  

While companion animals have come to be considered “a special category of property  “and the Appellate Division has pointed out in dicta that “the courts have recognized the “cherished status” accorded to pets in our society”   under New York law dogs and cats are still considered personal property. Dogs  and cats are chattels.    as are other animals. That is why Courts “deal with pets in divorce proceedings as they do with personal property.” The effect of Domestic Relations Law §236 (B)(5)(d) (14) is to require the courts to take into consideration the best interests of personal property when awarding its possession to either spouse. That appears to be a task that courts are not equipped to handle. Following Domestic Relations Law §236 (B)(5)(d) (14) to its logical or illogical conclusion, it appears that the parties to a matrimonial action involving a companion animal may be required to provide pre-trial disclosure under CPLR 3101(d)(i) of the identity of pet experts and the subject matter on which each expert is expected to testify and permit the parties to call experts at trial to testify as to the best interests of their dog or cat.  

Domestic Relations Law §236 (B)(5)(d) (14) requires courts to consider the “best interest of companion animals” when awarding possession of the animal during divorce or separation proceedings. The best interest analysis in dog custody case has been rejected for good reasons by some lower courts. The Supreme Court in New York county has said that “…the wholesale application of the practices and principles associated with child custody cases to dog custody cases is unworkable and unwarranted. …[I]t is impossible to truly determine what is in a dog's best interests. …, Too, there is no proven or practical means of gauging a dog's happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag. The subjective factors that are key to a best interests analysis in child custody…are, for the most part, unascertainable when the subject is an animal rather than a human…[I]t is highly questionable whether significant resources should be expended and substantial time spent on such endeavors. It is no secret that our courts are overwhelmed with child custody cases, cases in which the happiness and welfare of our most precious commodity, children, are at stake. To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children. Such a drain of judicial resources is unthinkable.   

Domestic Relations Law §236 (B)(5)(d)(14) and (15), effective October 25, 2021 read as follows:

     (14) whether either party has committed an act  or  acts  of  domestic
   violence,  as  described  in  subdivision  one  of  section four hundred
   fifty-nine-a of the social services law, against the other party and the
   nature, extent, duration and impact of such act or acts; 
     (15) in awarding the possession of a companion animal, the court shall
   consider the best interest of such animal. "Companion animal", as  used
   in this subparagraph, shall have the same meaning as in subdivision five
   of section three hundred fifty of the agriculture and markets law; and
     (16)  any other factor which the court shall expressly find to be just
   and proper.
Laws of 2021, Ch 437, §1 amended the Domestic Relations Law to add Domestic Relations Law § 240-d.

Laws of 2021, Ch 437, §1 amended the Domestic Relations Law to add Domestic Relations Law § 240-d. Support orders for certain adult dependents, effective  October 8, 2021 to provide that  a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse and certain other professionals.

The purpose of this  legislation is to aid families and dependent adults who have surpassed the age of majority for child support, but have developmental disabilities that necessitate a living allowance. This award amount would be at the discretion of the Court, where the individual has a diagnosis of a developmental disability, as defined in the Mental Hygiene Law, resides with the person seeking the support, and is principally dependent on the  person for maintenance. (See 2021 NY Legis Memo 437)
 
 
Domestic Relations Law  § 240-d provides:
1. Notwithstanding any other law, a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined in subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under title eight of the education law, and acting within their lawful scope of practice.
 
2. Upon petition brought by such person, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one-b of section two hundred forty of this article. In addition to the provisions of subdivision one-b of section two hundred forty of this article, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.
 
3. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such adult dependents, as well as to enforce or modify orders or judgments.
4. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “exception trust” as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause (iii) of subparagraph two of paragraph (b) of subdivision two of section three hundred sixty-six of the social services law, and section 7-1.12 of the estates, powers and trusts law if such direction would assist in maximizing assistance to the child.
5. Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities.  (Added L.2021, c. 437, § 1, eff. Oct. 8, 2021.)
 

Laws of 2021, Ch 437 amended the Family Court Act, to add Family Court Act § 413-b effective October 8, 2021

Laws of 2021, Ch 437 amended the Family Court Act, to add Family Court Act § 413-b effective October 8, 2021 to provide that  a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse and certain other professionals

Family Court Act § 413-b provides:

§ 413-b. Support orders for certain adult dependents
1. Notwithstanding any other law, a person who would otherwise be chargeable under law with support of a minor child is also chargeable with the support of any such individual until such individual reaches the age of twenty-six, when it shall appear to the satisfaction of the court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under title eight of the education law, and acting within their lawful scope of practice.

 2. Upon petition brought by the parent or kinship caregiver of an adult child with a disability, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one of section four hundred thirteen of this part. In addition to the provisions of subdivision one of section four hundred thirteen of this part, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the child support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six.

 3. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such dependents, as well as to enforce or modify orders or judgments.

 4. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “exception trust” as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause (iii) of subparagraph two of paragraph (b) of subdivision two of section three hundred sixty-six of the social services law, and section 7-1.12 of the estates, powers and trusts law if such direction would assist in maximizing assistance to the child.

 5. Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities. (Added L.2021, c. 437, § 2, eff. Oct. 8, 2021.)

Laws of 2021, Ch 442 enacted the "Blind  persons right to parent act" which amended the Domestic Relations Law and Family Court Act

Laws of 2021, Ch 442 enacted the "Blind  persons right to parent act" which 
amended the Domestic Relations Law and Family Court Act to prohibit  the making of decisions concerning guardianship, custody or visitation or adoption petitions solely on the basis of a parent's, guardian's or custodian's blindness; prohibit the department of social services from denying, deciding or opposing a petition or request for guardianship, custody or visitation solely because the petitioner is blind and prohibit the department of social services from taking actions solely because a parent, custodian or guardian is blind. Became a law October 8, 2021. Effective 90 days after it became a law.
    
 Laws of 2021, Ch 442, § 3 amended the domestic relations law by  adding  a  new section. Domestic Relations Law § 75-m to read as follows:
    
 §  75-m.  Consideration  of  blindness during guardianship, custody or
   visitation proceedings.  1. The court may not deny or decide a  petition
   for  guardianship,  custody  or  visitation solely on the basis that the
   petitioner is blind. The blindness of the petitioner shall be considered
   relevant only to the extent that the court finds, based on  evidence  in
   the  record,  that the blindness affects the best interests of the child
   whose guardianship, custody or visitation is the subject  of  the  peti-
   tion.
     2. As used in this section, "blind" or "blindness" means:
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.
   

  Laws of 2021, Ch 442, § 4 amended the domestic relations law by  adding  a  new section. Domestic Relations Law § 111-d to read as follows:

     § 111-d. Consideration of blindness during  adoption  proceedings.  1.
   The  court  may not deny or decide a petition for adoption solely on the
   basis that the petitioner is blind.  The  blindness  of  the  petitioner
   shall  be  considered  relevant only to the extent that the court finds,
   based on evidence in the record, that the  blindness  affects  the  best
   interests of the child whose adoption is the subject of the petition.
     2. As used in this section, "blind" or "blindness" means:                                                               
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.
 

    Laws of 2021, Ch 442, §  5 amended the  family court act by adding a new section, Family Court Act §643 to  read as follows:

     § 643. Consideration of blindness during adoption proceedings. 1.  The
   court may not deny or decide a petition for adoption solely on the basis
   that the petitioner is blind. The blindness of the petitioner  shall  be
   considered  relevant  only  to the extent that the court finds, based on
   evidence in the record, that the blindness affects the best interests of
   the child whose adoption is the subject of the petition.
     2. As used in this section, "blind" or "blindness" means:
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.
 

    Laws of 2021, Ch 442, § 6 amended the family court act by adding a new  section, Family Court Act §  658  to    read as follows:
   
  §  658.  Consideration  of  blindness  during guardianship, custody or
   visitation proceedings. 1. The court may not deny or decide  a  petition
   for  custody  or  visitation  under this part or guardianship under part
   four of this article solely on the basis that the petitioner  is  blind.
   The blindness of the petitioner shall be considered relevant only to the
   extent  that  the court finds, based on evidence in the record, that the
   blindness affects the best interests of the  child  whose  guardianship,
   custody or visitation is the subject of the petition.
     2. As used in this section, "blind" or "blindness" means:
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.
   

  Laws of 2021, Ch 442, § 7 amended the social services law by adding a new section, social services law §393 to   read as follows:
  
   §  393.  Consideration  of  blindness  during guardianship, custody or
   adoption proceedings. 1. The department may not deny, decide or oppose a
   petition or request for guardianship, custody or visitation  under  this
   article  solely  on  the  basis that the petitioner, parent, guardian or
   custodian is blind. The blindness of the petitioner, parent, guardian or
   custodian shall be considered relevant  only  to  the  extent  that  the
   blindness  affects  the  best interests of the child whose guardianship,
   custody or visitation is the subject of the petition.
     2. The department shall not seek custody or guardianship  of  a  child
   solely  because  the child's parent, guardian or custodian is blind. The
   blindness of the parent, guardian or custodian shall be considered rele-
   vant only to the extent that the blindness affects the best interests of
   the child whose guardianship, custody or visitation is  the  subject  of
   the petition.
     3. As used in this section, "blind" or "blindness" means:
     a. vision that is 20/200 or less in the best corrected eye; or
     b. vision that subtends an angle of not greater than twenty degrees in
   the best corrected eye.

 
Laws of 2021, Ch 456, amended Family Court Act§ 312.2 on October 8, 2021,  effective 60 days after that date, to add subdivision (3)

  Laws of 2021, Ch 456, amended Family Court Act§ 312.2 on October 8, 2021,  effective 60 days after that date, to added subdivision (3), in relation to execution of      warrants in juvenile delinquency cases when family courts are closed.

  The "raise the age" legislation enacted in 2017 requires accused juvenile delinquents to be brought before available accessible magistrates, designated by each Appellate Division, for pre-petition hearings during evening, weekend and holiday hours when Family Courts are not in session. See Family Court Act §§ 305.2(4), 307.3(4) L.  2017, c. 59, part www, §§ 63, 65. This legislation amends Family Court Act § 312.2 to include similar provisions for juvenile delinquents returned on warrants when Family Courts are not in session. The legislation requires juveniles in such cases to be brought before "the most accessible magistrate, if any, designated by the appellate division." The magistrates would determine whether the juveniles would be released or detained and would then set a date for the juvenile to appear in Family Court, i.e., no later than the next day the Family Court is in session if the juvenile is detained and within ten court days if the juvenile is released. In determining whether the juvenile should be released, with or without conditions, or detained, the magistrate must apply the criteria in and issue the findings required by section 320.5 of the Family Court Act. In order that Family Court would be alerted to expect the case, the order of the magistrate must be immediately transmitted to it. (See 2021 NY Legis Memo 456)
   
 
    Family Court Act §312.2 subdivision 3 reads as follows:

     3. A juvenile who is arrested pursuant to a warrant issued under  this
   section  must  forthwith and with all reasonable speed be taken directly
   to the family court located in the county in which the warrant had  been
   issued,  or, when the family court is not in session, to the most acces-
   sible magistrate, if any, designated by the appellate  division  of  the
   supreme  court  in  the  applicable department. If a juvenile is brought
   before an accessible magistrate, the magistrate shall set a date for the
   juvenile to appear in the family  court  in  the  county  in  which  the
   warrant  had  been issued, which shall be no later than the next day the
   court is in session if the magistrate orders the juvenile to be detained
   and within ten court days if the magistrate orders the  juvenile  to  be
   released.  In  determining whether the juvenile should be released, with
   or without conditions, or  detained,  the  magistrate  shall  apply  the
   criterion and issue the findings required by section 320.5 of this arti-
   cle.  The magistrate shall transmit its order to the family court forth-
   with.



 
Laws of 2021, Ch. 474, § 1, added amended the Family Court Act to add Family Court Act § 162-a, effective October  8, 2021

Laws of 2021, Ch. 474, § 1, added amended the Family Court Act to add Family Court Act § 162-a, effective October  8, 2021 to provide that except as otherwise provided in Family Court Act § 162-a, restraints on children under the age of twenty-one, including, but not limited to, handcuffs, chains, shackles, irons or straitjackets, are prohibited in the courtroom.

The legislation provides that restraints are prohibited and must presumptively be removed upon entry of a juvenile into the courtroom) unless Family Court determines and explains on the record why restraints are "necessary to prevent: (1) physical injury by the child to himself or herself or another person; (2) physically disruptive courtroom behavior, as evidenced by a recent history of behavior that presented a substantial risk of physical harm to the child or another person where the behavior indicates a substantial likelihood of current physically disruptive courtroom behavior by the child; or (3) the child's flight from the courtroom, as evidenced by a recent history of absconding from the Court." Particular restraints permitted must be the "least restrictive alternative" and, in order to ensure due process, the child must be given an opportunity to he heard regarding a request to impose restraints. The legislation further provides that, in cases where the exception is invoked, only handcuffs or footcuffs may be used and hand-
cuffs may not be joined to footcuffs. (See 2021 NY Legis Memo 474)
 
Restrictions upon use of mechanical restraints on adult offenders in
criminal trials has long been recognized as necessary to a fair trial. The US Supreme Court, in Deck v. Missouri, in rejecting routine shackling as a violation of due process, noted its origins in common law:
 
    Blackstone's 1769 Commentaries on the Laws of England noted
   that "it is laid down in our ancient books" that a defendant "must
   be brought to the bar without irons, or in any manner of shackled
   or bonds, unless there be evident dangers of an escape." 544 U.S. 622, 626 (2005). 

Following Deck, the New York Court of Appeals, in People v. Best, 39 N.Y.3d 739 (2012), criticized a defendant's shackling in a bench trial in the absence of a showing of necessity on the record, noting that "judges are human, and the sight of a defendant in restraints may unconsciously influence even a judicial factfinder," in
addition to harming the defendant and the public's perception of both the defendant "and of criminal proceedings generally." Chief Judge Lippman, dissenting from the majority's conclusion that use of restraints constituted harmless error, observed that "(t)he unwarranted shackling of defendants strikes at the very heart of the right to be presumed innocent.  Visible shackles give the impression to any trier of fact
that a person is violent, a miscreant, and cannot be trusted."  More recently, in United States v. Haynes, 729 F.3d 178, 188 (2nd Cir., 2013), the US Court of Appeals, Second Circuit, held that:
 
It is beyond dispute that a defendant may not be tried in shackles
unless the trial judge finds on the record that it is necessary to use such a restraint as a last resort to satisfy a compelling interest such as preserving the safety of persons in the courtroom. Arguments for restricting use of restraints upon adult offenders are
even more compelling with respect to children. Not only is use of shackles an infringement upon the presumption of innocence at the fact-finding (trial) stage, it also impedes the ability and willingness of youth to participate in court proceedings, including dispositional and permanency hearings, and to engage in planning for their futures. Juveniles are critical participants in such hearings.  See Family Court Act §§
341.2(1), 355.5(8), 756-a(d-1). (See 2021 NY Legis Memo 474)

The Legislation solely addresses courtroom appearances. A similar
presumption currently applies to use of restraints during transportation of juveniles from New York State Office of Children and Family Services facilities pursuant to an injunction issued in the class action case of  Matter of John F. v. Carrion, -Misc.3d-, N.Y.L.J., Jan. 27, 2010 (S.Ct., N.Y.Co., 2010). (See 2021 NY Legis Memo 474)

Family Court Act § 162-a provides:
(a) Use of restraints. Except as otherwise provided in subdivision (b) of this section, restraints on children under the age of twenty-one, including, but not limited to, handcuffs, chains, shackles, irons or straitjackets, are prohibited in the courtroom.
(b) Exception. Permissible physical restraint consisting of handcuffs or footcuffs that shall not be joined to each other may be used in the courtroom during a proceeding before the court only if the court determines on the record, after providing the child with an opportunity to be heard, why such restraint is the least restrictive alternative necessary to prevent:
(1) physical injury to the child or another person by the child;
(2) physically disruptive courtroom behavior by the child, as evidenced by a recent history of behavior that presented a substantial risk of physical harm to the child or another person, where such behavior indicates a substantial likelihood of current physically disruptive courtroom behavior by the child; or
(3) flight from the courtroom by the child, as evidenced by a recent history of absconding from the court.  (Added L.2021, c. 474, § 1, effective  Oct. 8, 2021.)



September 16, 2021

New section 205.18 of the Uniform Rules for the Family Court,  effective
September 29, 2021:
 
Section 205.18. Hearings and Submission of Reports and Assessments on the Placement of a Child in a Qualified Residential Treatment Program
 
(1) The Commissioner of the local social services district or other agency requesting placement (hereafter “Commissioner”) shall file a petition or a motion requesting a court hearing on the placement of a child in a “Qualified residential treatment program” prior to or no later than five days after entry of the child into the placement. The Commissioner shall serve, send or securely transmit notice to all counsel, the parties, the attorney for the child and, if the child is ten years of age or older, the child, of the date, time and court part in which the case will be heard. At that appearance, the court shall either make a determination as to the appropriateness of and need for the placement or schedule a hearing for such determination. The determination shall be made no later than 60 days of the placement of the child in the “qualified residential treatment program.”
 
(2) The Commissioner shall arrange for the completion of an assessment and report by a “qualified individual” no later than 30 days after the date of the child's placement in the “qualified residential treatment program” and shall submit it to the court and serve. send or securely transmit it to counsel, the parties and the attorney no later than five days after completion of the report by the “qualified individual” but in no event less than ten days prior to the first scheduled hearing at which a determination will be made.
 
(3) The report and assessment shall include:
(a) The qualifications and training of the “qualified individual” preparing the report and assessment, including information as to affiliations, if any, with any state, local or authorized agency in the State of New York that provides placement services for children;
(b) The names of all caseworkers, mental health professionals and family members who contributed to the report and assessment as members of the team;, including any members suggested by the child if the child is fourteen years of age or older;
(c) An evaluation of the strengths and needs of the child and the need for the child's placement in the designated qualified residential treatment facility (hereinafter “facility”);
(d) The reasons why the needs of the child cannot be appropriately and effectively met in a kinship or non-kinship foster home placement;
(e) The specific facility and the level of care in which the child is or will be placed;
(f) A description of the designated facility and the specific treatment services offered to the child at that facility;
(g) The short term and long-term goals of the child's placement and how the placement at the designated facility meets those goals;
(h) How the placement in the specific facility and level of care is the most effective and appropriate placement in the least restrictive environment for the child;
(i) Documentation of the time frame and plan for the child's discharge from the qualified residential treatment facility; and
(j) Any mental health diagnosis and the basis for that diagnosis, as well as a summary of any diagnostic and treatment records, regarding the child within the past three years: provided that the diagnosis and treatment records shall be provided upon the request of counsel for a party, the attorney for the child or the court.
 
(4) If the court denies the Commissioner's application for the child to be placed in the specific “qualified residential treatment program” and/or level of care recommended by the Commissioner, the Commissioner shall submit a new report and assessment within ten days of the court's denial. The new report and assessment shall include a short term and long-term plan for the child including an alternative placement and/or return to parent/guardian. If the alternative placement is a qualified residential treatment program. a new assessment by a “qualified individual” must contain the information required by subdivision three of this section and must be provided to the court and all parties, including the attorney for the child, no later than five days after completion of the report by the “qualified individual” but in no event less than ten days prior to the adjourned date. In such a case, the court shall make a determination of approval or disapproval of the placement in the “qualified residential treatment program.” not later than 60 days after the placement of the child in such program.
 
(5) A court review as to whether the child's placement in the “qualified residential treatment program” remains necessary shall be scheduled by the court no later than the next permanency or extension of placement hearing. The Commissioner shall serve, send or securely transmit notice to the parties, counsel and attorney for the child and shall submit a new report and assessment within five days of its completion but not less than ten days prior to the scheduled hearing. At each permanency or extension of placement hearing following the approval of the placement in the “qualified residential treatment program.” the commissioner of the local social services district shall provide a new report and assessment including the information required by subdivision three of this section. The new report and assessment submitted for each such hearing shall include the information required by subdivision three of this section.
 
August 16, 2021

 
Laws of 2021, Ch 306 amended CPLR 4510 effective July 23, 2021  to establish a privilege for domestic violence advocates
 
CPLR § 4510. Rape crisis counselor or domestic violence advocate
(a) Definitions. When used in this section, the following terms shall have the following meanings:
 
1. “Rape crisis program” means any office, institution or center which has been approved pursuant to subdivision fifteen of section two hundred six of the public health law, as added by chapter 432 of the laws of 1993, offering counseling and assistance to clients concerning sexual offenses, sexual abuses or incest.
 
2. “Rape crisis counselor” means any person who has been certified by an approved rape crisis program as having satisfied the training standards specified in subdivision fifteen of section two hundred six of the public health law, as added by chapter 432 of the laws of 1993, and who, regardless of compensation, is acting under the direction and supervision of an approved rape crisis program.
 
3. “Client” means (i) any person who is seeking or receiving the services of a rape crisis counselor for the purpose of securing counseling or assistance concerning any sexual offenses, sexual abuse, incest or attempts to commit sexual offenses, sexual abuse, or incest, as defined in the penal law; or (ii) any victim of domestic violence as defined in section four hundred fifty-nine-a of the social services law.
 
4. “Domestic violence program” means a residential program for victims of domestic violence or a non-residential program for victims of domestic violence as defined in section four hundred fifty-nine-a of the social services law or any similar program operated by an Indian tribe, as defined by section two of the Indian law.
 
5. “Domestic violence advocate” means any person who is acting under the direction and supervision of a licensed and approved domestic violence program and has satisfied the training standards required by the office of children and family services.
 
(b) Confidential information privileged. A rape crisis counselor or domestic violence advocate shall not be required to disclose a communication made by his or her client to him or her, or advice given thereon, in the course of his or her services nor shall any clerk, stenographer or other person working for the same program as the rape crisis counselor or domestic violence advocate or for the rape crisis counselor or domestic violence advocate be allowed to disclose any such communication or advice given thereon nor shall any records made in the course of the services given to the client or recording of any communications made by or to a client be required to be disclosed, nor shall the client be compelled to disclose such communication or records, except:
 
1. that a rape crisis counselor or domestic violence advocate may disclose such otherwise confidential communication to the extent authorized by the client;
 
2. that a rape crisis counselor or domestic violence advocate shall not be required to treat as confidential a communication by a client which reveals the intent to commit a crime or harmful act;
 
3. that a domestic violence advocate shall not be required to treat as confidential a communication by a client which reveals a case of suspected child abuse or maltreatment pursuant to title six of article six of the social services law;
 
4. in a case in which the client waives the privilege by instituting charges against the rape crisis counselor or domestic violence advocate or the rape crisis program or domestic violence program and such action or proceeding involves confidential communications between the client and the rape crisis counselor or domestic violence advocate.
 
(c) Who may waive the privilege. The privilege may only be waived if the client, the personal representative of a deceased client, or, in the case of a client who has been adjudicated incompetent or for whom a conservator has been appointed, the committee or conservator provides the rape crisis counselor or domestic violence advocate with informed, written and reasonably time-limited consent.
 
(d) Limitation on waiver. A client who, for the purposes of obtaining compensation under article twenty-two of the executive law or insurance benefits, authorizes the disclosure of any privileged communication to an employee of the office of victim services or an insurance representative shall not be deemed to have waived the privilege created by this section. (Added L.1993, c. 432, § 1. Amended L.2010, c. 56, pt. A-1, § 49, eff. June 22, 2010; L.2021, c. 309, § 1, eff. July 23, 2021.)
 
 
Laws of 2021, Ch 352, §6 amended CPLR 4519 effective August 2, 2021 replacing "mentally ill" and adding "with a mental illness."
 
CPLR 4519 was amended to read as follows:
 
     §  4519.  Personal  transaction  or  communication between witness and
   decedent or person with a mental illness. Upon the  trial
   of  an  action or the hearing upon the merits of a special proceeding, a
   party or a person interested in the event, or a person from, through  or
   under  whom  such  a  party or interested person derives his interest or
   title by assignment or otherwise, shall not be examined as a witness  in
   his  own behalf or interest, or in behalf of the party succeeding to his
   title or interest against the executor, administrator or survivor  of  a
   deceased  person  or  the  committee  of  a person with a
   mental illness, or a person deriving his title or interest from, through
   or under a deceased person  or  person  with  a  mental
   illness,  by  assignment or otherwise, concerning a personal transaction
   or communication between the witness and the deceased person or person   with a mental illness, except where the executor,  admin-
   istrator, survivor, committee or person so deriving title or interest is
   examined  in  his  own  behalf,  or  the testimony of the
   person with a mental illness or deceased person is  given  in  evidence,
   concerning  the same transaction or communication. A person shall not be
   deemed interested for the purposes of this section by reason of being  a
   stockholder  or  officer  of any banking corporation which is a party to
   the action or proceeding, or interested in the event thereof.  No  party
   or  person interested in the event, who is otherwise competent to testi-
   fy, shall be disqualified from testifying by the possible imposition  of
   costs against him or the award of costs to him. A party or person inter-
   ested  in the event or a person from, through or under whom such a party
   or interested person derives his interest  or  title  by  assignment  or
   otherwise,  shall  not be qualified for the purposes of this section, to
   testify in his own behalf  or  interest,  or  in  behalf  of  the  party
   succeeding  to his title or interest, to personal transactions or commu-
   nications with the donee of a power  of  appointment  in  an  action  or
   proceeding  for  the  probate  of a will, which exercises or attempts to
   exercise a power of appointment granted by the will of a donor  of  such
   power,  or  in an action or proceeding involving the construction of the
   will of the donee after its admission to probate.
     Nothing contained in this section,  however,  shall  render  a  person
   incompetent  to  testify  as  to the facts of an accident or the results
   therefrom where the proceeding, hearing,  defense  or  cause  of  action
   involves  a  claim of negligence or contributory negligence in an action
   wherein one or more parties is  the  representative  of  a  deceased  or
   incompetent  person based upon, or by reason of, the operation or owner-
   ship of a motor vehicle being operated upon the highways of  the  state,
   or  the  operation  or  ownership  of aircraft being operated in the air
   space over the state, or the operation or ownership of a vessel  on  any
   of the lakes, rivers, streams, canals or other waters of this state, but
   this  provision  shall  not  be  construed as permitting testimony as to
   conversations with the deceased.
 
 
Laws of 2021, Ch 352  amended domestic relations law 140, 141 and 142 effective  August 2, 2021  replacing  mentally ill to with a developmental illness and replacing mentally retarded with a developmental disability.
 
Domestic Relations Law §140, subdivision (c) was amended  to  read  as
   follows:
 
     (c)    Party a person with a developmental illness
   or  person with a mental illness. An  action  to  annul  a
   marriage  on  the ground that one of the parties thereto was a
   person with a developmental disability may  be  maintained  at
   any  time  during  the  life-time  of  either party by any relative of a
   person with a developmental disability, who  has  an
   interest  to  avoid the marriage.   An action to annul a marriage on the
   ground that one of the parties thereto was a person  with
   a mental illness may be maintained at any time during the continuance of
   the  mental  illness,  or,  after the death of the person
   with a mental illness in that condition, and  during  the  life  of  the
   other  party  to  the  marriage,  by  any relative of the
   person with a mental illness who has an interest to avoid the  marriage.
   Such  an action may also be maintained by the  person with
   a mental illness at any time after restoration to a sound mind;  but  in
   that  case,  the  marriage should not be annulled if it appears that the
   parties freely cohabited as husband and wife after  the 
   person with a mental illness was restored to a sound mind.  Where one of
   the  parties  to  a  marriage  was a person with a mental
   illness at the time of the marriage, an action may also be maintained by
   the other party at  any  time  during  the  continuance  of  the  mental
   illness,  provided  the  plaintiff did not know of the mental illness at
   the time of the marriage.  Where no relative of the
   person  with  a developmental disability or person with a
   mental illness brings an action to annul the marriage and the   person        with  a  mental illness is not restored to sound mind, the
   court may allow an action for that purpose to be maintained at any  time
   during  the life-time of both the parties to the marriage, by any person
   as the next friend of the
   person with a mental illness or person with a developmental disability.
 
 
Laws of 2021, Ch 352, § 9 amended Domestic Relations Law §141 effective  August 2, 2021 replacing  "mentally ill" with with a  mental  illness  and relacing is incurably mentally ill to have an  incurable  mental
Illness. "
 
Domestic Relations Law §141 was amended to read as follows:
 
     § 141.  Action to annul marriage on ground of incurable mental illness
   for five years; procedure; support. 1. If the marriage be   annulled  on
   the  ground  of the mental illness of a spouse, the court may include in
   the judgment an order providing for his or her  suitable  support,  care
   and  maintenance  during  life  from the property or income of the other
   spouse. The court shall specify the amount of  such  support,  care  and
   maintenance  and, before rendering judgment, may exact security for such
   support, care and maintenance during life and shall order the filing and
   recording of the instrument creating such security in the office of  the
   clerk of the county in which the action is brought and the filing of two
   certified  copies thereof with the office of mental health at its Albany
   office.  The  provisions  of  the judgment relating to support, care and
   maintenance of the spouse with a  mental  illness  during
   his  or  her life and to security therefor may be modified or amended at
   any time by the court upon due notice  to  the  other  party  and  other
   interested  parties as the court may direct and in proper case the value
   of the suitable support, care and maintenance to such spouse during  the
   balance  of  his or her life based upon appropriate mortality tables may
   be adjudged and determined by  the  court  in  which  the  estate  of  a
   deceased  spouse  is being administered and the same may be recovered on
   behalf of the  spouse  with  a  mental  illness  from  the
   estate  of  the  deceased  spouse.   If the spouse with a
   mental illness is maintained in an institution or  otherwise  under  the
   jurisdiction  of the office of mental health, the suitable support, care
   and maintenance as required in the judgment, unless  otherwise  directed
   by  the  court,  shall  be the charge established by the commissioner of
   mental health and such charge may be recovered in the manner provided by
   law. Such amount shall continue to be so required for the support of the
    spouse with a mental illness in the event of his  or  her
   removal from the custody of the office of mental health unless thereaft-
   er  otherwise  directed by the court. Any security exacted for the suit-
   able support, care and maintenance during life  of  the 
   spouse  with  a  mental illness shall be available to that spouse or any
   person on his or her  behalf  or  to  any  person  or  agency  providing
   support,  care  and  maintenance  for  such spouse in the event that the
   required payments for such support, care and maintenance have  not  been
   made and upon application to the court the other spouse shall be ordered
   and directed to provide additional or further security.
 
     2.  Judgment annulling a marriage on such ground shall not be rendered
   until, in addition to any other proofs in the case, a thorough  examina-
   tion  of  the  alleged  [party with a mental illness shall
   have been made by three physicians who  are  recognized  authorities  on
   mental  disease,  to  be  appointed by the court, all of whom shall have
   agreed that such party has  an  incurable
   mental  illness and shall have so reported to the court. In such action,
   the testimony of a physician attached to a state hospital in the depart-
   ment of mental hygiene as to information which he acquired in  attending
   a  patient  in  a professional capacity at such hospital, shall be taken
   before a referee appointed by a judge of the court in which such  action
   is  pending  if  the  court  in  its discretion shall determine that the
   distance such physician must travel to attend the trial would be a great
   inconvenience to him or the hospital,  or that other  sufficient  reason
   exists  for  the  appointment  of  a referee for such purpose; provided,
   however, that any judge of such court at any  time  in  his  discretion,
   notwithstanding such deposition, may order that a subpoena issue for the
   attendance  and  examination  of  such  physician  upon the trial of the
   action. In such case a copy of the order shall be served  together  with
   the subpoena.
 
     3.  Except  as  provided  in  paragraph five of this section, when the
   person alleged to have an  incurable  mental
   illness  is  confined in a state hospital for persons
   with a mental illness of this state, one, and one only,  of  the  physi-
   cians  so  appointed  shall be a member of the resident medical staff of
   such hospital designated by the director thereof. If the alleged  incur-
   ably  [person with a mental illness is not confined in a
   state hospital for [persons with a mental  illness  of
   this  state,  one of the examining physicians named in pursuance of this
   section shall be the director of a state hospital for
   persons  with a mental illness if the alleged person with
   a mental illness is within this state, or the superintendent or compara-
   ble officer of a state hospital for persons  with  a
   mental  illness of the state or country where the alleged
   person with a mental illness is present if the  alleged 
   person  with  a  mental  illness is outside of this state. The report of
   such superintendent or comparable officer of a state hospital  for 
    persons with a mental illness of such other state or coun-
   try  shall not be received in evidence or considered by the court unless
   he shall be a well educated physician with at least five years of train-
   ing and experience in the care and treatment of persons  suffering  from
   mental disorders.
 
     4. When the plaintiff has been permitted to bring such action or pros-
   ecute the same as a poor person and the alleged incurably
   defendant  with a mental illness is present within this state, the court
   shall appoint three physicians who are examining physicians, as  defined
   by  section  1.05  of  the  mental hygiene law, in the employment of the
   department of mental hygiene. If the alleged  person  with
   a  mental  illness  be  outside of this state, the court may, upon proof
   thereof, appoint three examining physicians who are qualified under  the
   laws  or  regulations  of the foreign state or country where the alleged
   person with a mental illness  is  present  and  who  have
   qualifications  comparable  to  those  specified  in section 1.05 of the
   mental hygiene law of the state, provided, however,  that  one  of  such
   examining  physicians  shall be the superintendent or comparable officer
   of a state hospital for persons with a mental illness
   of such foreign state or country with  qualifications  as  specified  in
   paragraph four. Such examiners shall make the examination of the alleged
   party  with  a mental illness present in this state and
   file with the court a verified report of their findings and  conclusions
   without  costs  to  such  plaintiff when the plaintiff is a poor person.
   Examination of an alleged party  with  a  mental  illness
   present outside of this state shall be made at the expense of the plain-
   tiff.  Such  report  shall be received in evidence upon the trial of the
   action without the personal appearance or testimony of  such  examiners.
   If  the  court  shall  deem  it necessary that the testimony of any such
   examiners be taken, the court may order the taking of such testimony  by
   deposition  only. The examiners so appointed by the court may be members
   of the resident medical staff of any state hospital, whether or not  the
   alleged  person with a mental illness is being confined
   there.
  
Laws of 2021, Ch 352, § 10 amended domestic relations law § 142 effective  August 2, 2021, replacing  "mentally ill" with with  a  developmental disability or person with a mental illness and adding "with a mental illness."
 
 
Domestic Relations Law § 142 was amended to read as follows:
 
     § 142.  Dismissal of complaint in action by next  friend  to  annul  a
   marriage. Where the next friend of an infant, person
   with  a  developmental disability or person with a mental
   illness maintains an action annulling a marriage, the court may  dismiss
   the  complaint  if  justice  so  requires, although, in a like case, the
   party to the marriage, if plaintiff, would be entitled to judgment.
 
 
Recent Court Rules Amendments
 
 
The Uniform Civil Rules for the Supreme Court and the County Court were amended effective February 1, 2021. (See AO/270/2020). The Amendments and additions to the Uniform Rules which are applicable in matrimonial actions are below.
 
 
22 NYCRR 202-a - Motions
           
22 NYCRR 202.8 (a)) provides that counsel “should” use tabs on hard or working copies when submitting papers containing exhibits. Copies must be legible.  If a document to be annexed to an affidavit or affirmation is voluminous and only discrete portions are relevant to the motion, counsel must attach excerpts and submit the full exhibit separately. 
 
22 NYCRR 202.8-a  provides:
 
Motion in General
 
(a) Form of Motion Papers. The movant shall specify in the notice of motion, order to show cause, and in a concluding section of a memorandum of law, the exact relief sought. Regardless of whether the papers are filed electronically or in hard copy or as working copies, counsel must submit as part of the motion papers copies of all pleadings and other documents as required by the CPLR and as necessary for an informed decision on the motion (especially on motions pursuant to CPLR 3211 and 3212). Counsel should use tabs on hard or working copies when submitting papers containing exhibits. Copies must be legible. If a document to be annexed to an affidavit or affirmation is voluminous and only discrete portions are relevant to the motion, counsel shall attach excerpts and submit the full exhibit separately. Documents in a foreign language shall be translated as required by CPLR 2101(b). Whenever reliance is placed upon a decision or other authority not readily available to the court, a copy of the case or of pertinent portions of the authority shall be submitted with the motion papers.
 
(b) Proposed orders. When appropriate, proposed orders should be submitted with motions, e.g., motions to be relieved, pro hac vice admissions, open commissions, etc. No proposed order should be submitted with motion papers on a dispositive motion.
 
(c) Adjournment of Motions. Unless the court orders otherwise, no motion may be adjourned on consent more than three times or for a cumulative total of more than 60 days.(Added on Dec. 29. 2020, effective February 1, 2021)
 
 
22 NYCRR 202.8-b - Word Count limits and Certification.
 
22 NYCRR 202.8-b (a) limits the number of words in documents submitted to the court on motions.  It provides that unless otherwise permitted by the court, affidavits, affirmations, briefs and memoranda of law in chief are limited to 7,000 words each. Reply affidavits, affirmations, and memoranda must be no more than 4,200 words.  The word count does not include the caption, table of contents, table of authorities, and signature block. (See 22 NYCRR 202.8-b (b)).
 
The Uniform rules provide that reply affidavits, affirmations, and memoranda may not contain any arguments that do not respond or relate to those made in the memoranda in chief. (See 22 NYCRR 202.8-b (a)).  
 
22 NYCRR 202.8-b (d) provides that the court may, upon oral or letter application on notice to all parties permit the submission of affidavits, affirmations, briefs or memoranda which exceed the limitations set forth in 22 NYCRR 202.8-b (a).
 
Every brief, memorandum, affirmation, and affidavit must include a certification at the end of the document by the counsel who has filed the document setting forth the number of words in the document and certifying that the document complies with the word count limit. The counsel certifying compliance may rely on the word count of the word-processing system used to prepare the document. (See 22 NYCRR 202.8-b (c))
 
 
22 NYCRR 202.8-b provides:
Length of Papers
 
(a) Unless otherwise permitted by the court: (i) affidavits, affirmations, briefs and memoranda of law in chief shall be limited to 7,000 words each; (ii) reply affidavits, affirmations, and memoranda shall be no more than 4,200 words and shall not contain any arguments that do not respond or relate to those made in the memoranda in chief.
 
(b) For purposes of paragraph (a) above, the word count shall exclude the caption, table of contents, table of authorities, and signature block.
 
(c) Every brief, memorandum, affirmation, and affidavit shall include on a page attached to the end of the applicable document, a certification by the counsel who has filed the document setting forth the number of words in the document and certifying that the document complies with the word count limit. The counsel certifying compliance may rely on the word count of the word-processing system used to prepare the document.
 
(d) The court may, upon oral or letter application on notice to all parties permit the submission of affidavits, affirmations, briefs or memoranda which exceed the limitations set forth in paragraph (a) above. In the event that the court grants permission for an oversize submission, the certification required by paragraph (b) above shall set forth the number of words in the document and certify compliance with the limit, if any set forth by the court. (Added on Dec. 29. 2020, effective February 1, 2021)
 
           
22 NYCRR 202.8-c - Sur-reply papers, including correspondence, addressing the merits of a motion are not permitted. No response is necessary.
 
                                   
22 NYCRR 202.8-c provides:
 
Sur-Reply and Post-Submission Papers
 
Absent express permission in advance, sur-reply papers, including correspondence, addressing the merits of a motion are not permitted, except that counsel may inform the court by letter of the citation of any post-submission court decision that is relevant to the pending issues, but there shall be no additional argument. Materials submitted in violation hereof will not be read or considered. Opposing counsel who receives a copy of materials submitted in violation of this Rule shall not respond in kind. (Added on Dec. 29. 2020, effective February 1, 2021)
 
 
22 NYCRR 202.8-d - Motions shall be brought on by order to show cause only when there is genuine urgency. Reply papers not permitted absent advance permission
 
22 NYCRR 202.8-d provides:
 
Orders to Show Cause
 
Motions shall be brought on by order to show cause only when there is genuine urgency (e.g., applications for provisional relief), a stay is required or a statute mandates so proceeding. See Section 202.8-e. Absent advance permission of the court, reply papers shall not be submitted on orders to show cause. (Added on Dec. 29. 2020, effective February 1, 2021)



22 NYCRR 202.8-e - Absent a showing of significant prejudice temporary restraining order should not be issued ex parte. Unless excused by the court, applicant must give notice of the time, date and place that the application
 
The current version of 22 NYCRR &s;§202.7, which has been in effect since 2007 provides that any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, must contain, in addition to the other information required by the section, an affirmation demonstrating there will be significant prejudice to the party seeking the restraining order by giving of notice. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application. (22 NYCRR &s;§202.7(f)).
 
22 NYCRR 202.8-e appears to duplicate 22 NYCRR 202.7 (f). It provides that unless the moving party can demonstrate significant prejudice because of giving notice, or that notice could not be given despite a good faith effort to provide notice, a temporary restraining order should not be issued ex parte. Unless excused by the court, the applicant must give notice of the time, date and place that the application will be made in a manner, and provide copies of all supporting papers, to the opposing parties sufficiently in advance to permit them an opportunity to appear and contest the application. Any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, must contain, in addition to the other information required by 22 NYCRR 202.8-e, an affirmation demonstrating either that: (a) notice has been given; or (b) notice could not be given despite a good faith effort to provide it or (c) there will be significant prejudice to the party seeking the restraining order by giving of notice. (22 NYCRR 202.8-e).
 
22 NYCRR 202.8-e provides:
 
Temporary restraining order should not be issued ex parte. Unless excused by the court, the applicant must give notice of the time, date and place that the application
Unless the moving party can demonstrate significant prejudice by reason of giving notice, or that notice could not be given despite a good faith effort to provide notice, a temporary restraining order should not be issued ex parte. Unless excused by the court, the applicant must give notice of the time, date and place that the application will be made in a manner, and provide copies of all supporting papers, to the opposing parties sufficiently in advance to permit them an opportunity to appear and contest the application. Any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, shall contain, in addition to the other information required by this section, an affirmation demonstrating either that: (a) notice has been given; or (b) notice could not be given despite a good faith effort to provide it or (c) there will be significant prejudice to the party seeking the restraining order by giving of notice. This subdivision shall not be applicable to orders to show cause or motions in special proceedings brought under Article 7 of the Real Property Actions and Proceedings Law, nor to orders to show cause or motions requesting an order of protection under section 240 of the Domestic Relations Law, unless otherwise ordered by the court. (Added on Dec. 29. 2020, effective February 1, 2021)



22 NYCRR 202.8-f - Oral Argument of Motions may be requested if not required by court. arguments may be conducted by the court by electronic means
 
 
22 NYCRR 202.8-f provides:


Oral Argument
 
(a) Each court or court part shall adopt a procedure governing request for oral argument of motions, provided that, in the absence of the adoption of such a procedure by a particular court or part, the provisions of paragraph (b) shall apply. The procedure to be adopted shall set forth whether oral argument is required on all motions or whether the court will determine, on a case-by-case basis, whether oral argument will be heard and how counsel shall request argument and, if oral argument is permitted, when counsel shall appear.
 
(b) Any party may request oral argument of a motion by letter accompanying the motion papers. Notice of the date selected by the court shall be given, if practicable, at least 14 days before the scheduled oral argument. At that time, counsel shall be prepared to argue the motion, discuss resolution of the issue(s) presented and/or schedule a trial or hearing.
 
(c) Oral arguments may be conducted by the court by electronic means. (Added on Dec. 29. 2020, effective February 1, 2021)



22 NYCRR 202.8-g. Motions for Summary Judgment must have annexed a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.
 
22 NYCRR 202.8-g provides
Motions for Summary Judgment; Statements of Material Facts
(a) Upon any motion for summary judgment, other than a motion made pursuant to CPLR 3213, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.
(b) In such a case, the papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party and, if necessary, additional paragraphs containing a separate short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
(c) Each numbered paragraph in the statement of material facts required to be served by the moving party will be deemed to be admitted unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.
(d) Each statement of material fact by the movant or opponent pursuant to subdivision (a) or (b), including each statement controverting any statement of material fact, must be followed by citation to evidence submitted in support of or in opposition to the motion. (Added on Dec. 29. 2020, effective February 1, 2021)


August 5, 2021
Laws of 2021, Ch 352, §6 amended CPLR 4519 effective August 2, 2021 replacing "mentally ill" and adding "with a mental illness."
 
CPLR 4519 was amended to read as follows:
 
     §  4519.  Personal  transaction  or  communication between witness and
   decedent or person with a mental illness. Upon the  trial
   of  an  action or the hearing upon the merits of a special proceeding, a
   party or a person interested in the event, or a person from, through  or
   under  whom  such  a  party or interested person derives his interest or
   title by assignment or otherwise, shall not be examined as a witness  in
   his  own behalf or interest, or in behalf of the party succeeding to his
   title or interest against the executor, administrator or survivor  of  a
   deceased  person  or  the  committee  of  a person with a
   mental illness, or a person deriving his title or interest from, through
   or under a deceased person  or  person  with  a  mental
   illness,  by  assignment or otherwise, concerning a personal transaction
   or communication between the witness and the deceased person or person                  with a mental illness, except where the executor,  admin-
   istrator, survivor, committee or person so deriving title or interest is
   examined  in  his  own  behalf,  or  the testimony of the
   person with a mental illness or deceased person is  given  in  evidence,
   concerning  the same transaction or communication. A person shall not be
   deemed interested for the purposes of this section by reason of being  a
   stockholder  or  officer  of any banking corporation which is a party to
   the action or proceeding, or interested in the event thereof.  No  party
   or  person interested in the event, who is otherwise competent to testi-
   fy, shall be disqualified from testifying by the possible imposition  of
   costs against him or the award of costs to him. A party or person inter-
   ested  in the event or a person from, through or under whom such a party
   or interested person derives his interest  or  title  by  assignment  or
   otherwise,  shall  not be qualified for the purposes of this section, to
   testify in his own behalf  or  interest,  or  in  behalf  of  the  party
   succeeding  to his title or interest, to personal transactions or commu-
   nications with the donee of a power  of  appointment  in  an  action  or
   proceeding  for  the  probate  of a will, which exercises or attempts to
   exercise a power of appointment granted by the will of a donor  of  such
   power,  or  in an action or proceeding involving the construction of the
   will of the donee after its admission to probate.
     Nothing contained in this section,  however,  shall  render  a  person
   incompetent  to  testify  as  to the facts of an accident or the results
   therefrom where the proceeding, hearing,  defense  or  cause  of  action
   involves  a  claim of negligence or contributory negligence in an action
   wherein one or more parties is  the  representative  of  a  deceased  or
   incompetent  person based upon, or by reason of, the operation or owner-
   ship of a motor vehicle being operated upon the highways of  the  state,
   or  the  operation  or  ownership  of aircraft being operated in the air
   space over the state, or the operation or ownership of a vessel  on  any
   of the lakes, rivers, streams, canals or other waters of this state, but
   this  provision  shall  not  be  construed as permitting testimony as to
   conversations with the deceased.
 
 
Laws of 2021, Ch 352  amended domestic relations law 140, 141 and 142 effective  August 2, 2021  replacing  mentally ill to with a developmental illness and replacing mentally retarded with a developmental disability.
 
Domestic Relations Law §140, subdivision (c) was amended  to  read  as
   follows:
 
     (c)    Party a person with a developmental illness
   or  person with a mental illness. An  action  to  annul  a
   marriage  on  the ground that one of the parties thereto was a
   person with a developmental disability may  be  maintained  at
   any  time  during  the  life-time  of  either party by any relative of a
   person with a developmental disability, who  has  an
   interest  to  avoid the marriage.   An action to annul a marriage on the
   ground that one of the parties thereto was a person  with
   a mental illness may be maintained at any time during the continuance of
   the  mental  illness,  or,  after the death of the person
   with a mental illness in that condition, and  during  the  life  of  the
   other  party  to  the  marriage,  by  any relative of the
   person with a mental illness who has an interest to avoid the  marriage.
   Such  an action may also be maintained by the  person with
   a mental illness at any time after restoration to a sound mind;  but  in
   that  case,  the  marriage should not be annulled if it appears that the
   parties freely cohabited as husband and wife after  the 
   person with a mental illness was restored to a sound mind.  Where one of
   the  parties  to  a  marriage  was a person with a mental
   illness at the time of the marriage, an action may also be maintained by
   the other party at  any  time  during  the  continuance  of  the  mental
   illness,  provided  the  plaintiff did not know of the mental illness at
   the time of the marriage.  Where no relative of the
   person  with  a developmental disability or person with a
   mental illness brings an action to annul the marriage and the   person        with  a  mental illness is not restored to sound mind, the
   court may allow an action for that purpose to be maintained at any  time
   during  the life-time of both the parties to the marriage, by any person
   as the next friend of the
   person with a mental illness or person with a developmental disability.
 
 
Laws of 2021, Ch 352, § 9 amended Domestic Relations Law §141 effective  August 2, 2021 replacing  "mentally ill" with with a  mental  illness  and relacing is incurably mentally ill to have an  incurable  mental
Illness. "
 
Domestic Relations Law §141 was amended to read as follows:
 
     § 141.  Action to annul marriage on ground of incurable mental illness
   for five years; procedure; support. 1. If the marriage be   annulled  on
   the  ground  of the mental illness of a spouse, the court may include in
   the judgment an order providing for his or her  suitable  support,  care
   and  maintenance  during  life  from the property or income of the other
   spouse. The court shall specify the amount of  such  support,  care  and
   maintenance  and, before rendering judgment, may exact security for such
   support, care and maintenance during life and shall order the filing and
   recording of the instrument creating such security in the office of  the
   clerk of the county in which the action is brought and the filing of two
   certified  copies thereof with the office of mental health at its Albany
   office.  The  provisions  of  the judgment relating to support, care and
   maintenance of the spouse with a  mental  illness  during
   his  or  her life and to security therefor may be modified or amended at
   any time by the court upon due notice  to  the  other  party  and  other
   interested  parties as the court may direct and in proper case the value
   of the suitable support, care and maintenance to such spouse during  the
   balance  of  his or her life based upon appropriate mortality tables may
   be adjudged and determined by  the  court  in  which  the  estate  of  a
   deceased  spouse  is being administered and the same may be recovered on
   behalf of the  spouse  with  a  mental  illness  from  the
   estate  of  the  deceased  spouse.   If the spouse with a
   mental illness is maintained in an institution or  otherwise  under  the
   jurisdiction  of the office of mental health, the suitable support, care
   and maintenance as required in the judgment, unless  otherwise  directed
   by  the  court,  shall  be the charge established by the commissioner of
   mental health and such charge may be recovered in the manner provided by
   law. Such amount shall continue to be so required for the support of the
    spouse with a mental illness in the event of his  or  her
   removal from the custody of the office of mental health unless thereaft-
   er  otherwise  directed by the court. Any security exacted for the suit-
   able support, care and maintenance during life  of  the 
   spouse  with  a  mental illness shall be available to that spouse or any
   person on his or her  behalf  or  to  any  person  or  agency  providing
   support,  care  and  maintenance  for  such spouse in the event that the
   required payments for such support, care and maintenance have  not  been
   made and upon application to the court the other spouse shall be ordered
   and directed to provide additional or further security.
 
     2.  Judgment annulling a marriage on such ground shall not be rendered
   until, in addition to any other proofs in the case, a thorough  examina-
   tion  of  the  alleged  [party with a mental illness shall
   have been made by three physicians who  are  recognized  authorities  on
   mental  disease,  to  be  appointed by the court, all of whom shall have
   agreed that such party has  an  incurable
   mental  illness and shall have so reported to the court. In such action,
   the testimony of a physician attached to a state hospital in the depart-
   ment of mental hygiene as to information which he acquired in  attending
   a  patient  in  a professional capacity at such hospital, shall be taken
   before a referee appointed by a judge of the court in which such  action
   is  pending  if  the  court  in  its discretion shall determine that the
   distance such physician must travel to attend the trial would be a great
   inconvenience to him or the hospital,  or that other  sufficient  reason
   exists  for  the  appointment  of  a referee for such purpose; provided,
   however, that any judge of such court at any  time  in  his  discretion,
   notwithstanding such deposition, may order that a subpoena issue for the
   attendance  and  examination  of  such  physician  upon the trial of the
   action. In such case a copy of the order shall be served  together  with
   the subpoena.
 
     3.  Except  as  provided  in  paragraph five of this section, when the
   person alleged to have an  incurable  mental
   illness  is  confined in a state hospital for persons
   with a mental illness of this state, one, and one only,  of  the  physi-
   cians  so  appointed  shall be a member of the resident medical staff of
   such hospital designated by the director thereof. If the alleged  incur-
   ably  [person with a mental illness is not confined in a
   state hospital for [persons with a mental  illness  of
   this  state,  one of the examining physicians named in pursuance of this
   section shall be the director of a state hospital for
   persons  with a mental illness if the alleged person with
   a mental illness is within this state, or the superintendent or compara-
   ble officer of a state hospital for persons  with  a
   mental  illness of the state or country where the alleged
   person with a mental illness is present if the  alleged 
   person  with  a  mental  illness is outside of this state. The report of
   such superintendent or comparable officer of a state hospital  for 
    persons with a mental illness of such other state or coun-
   try  shall not be received in evidence or considered by the court unless
   he shall be a well educated physician with at least five years of train-
   ing and experience in the care and treatment of persons  suffering  from
   mental disorders.
 
     4. When the plaintiff has been permitted to bring such action or pros-
   ecute the same as a poor person and the alleged incurably
   defendant  with a mental illness is present within this state, the court
   shall appoint three physicians who are examining physicians, as  defined
   by  section  1.05  of  the  mental hygiene law, in the employment of the
   department of mental hygiene. If the alleged  person  with
   a  mental  illness  be  outside of this state, the court may, upon proof
   thereof, appoint three examining physicians who are qualified under  the
   laws  or  regulations  of the foreign state or country where the alleged
   person with a mental illness  is  present  and  who  have
   qualifications  comparable  to  those  specified  in section 1.05 of the
   mental hygiene law of the state, provided, however,  that  one  of  such
   examining  physicians  shall be the superintendent or comparable officer
   of a state hospital for persons with a mental illness
   of such foreign state or country with  qualifications  as  specified  in
   paragraph four. Such examiners shall make the examination of the alleged
   party  with  a mental illness present in this state and
   file with the court a verified report of their findings and  conclusions
   without  costs  to  such  plaintiff when the plaintiff is a poor person.
   Examination of an alleged party  with  a  mental  illness
   present outside of this state shall be made at the expense of the plain-
   tiff.  Such  report  shall be received in evidence upon the trial of the
   action without the personal appearance or testimony of  such  examiners.
   If  the  court  shall  deem  it necessary that the testimony of any such
   examiners be taken, the court may order the taking of such testimony  by
   deposition  only. The examiners so appointed by the court may be members
   of the resident medical staff of any state hospital, whether or not  the
   alleged  person with a mental illness is being confined
   there.
  
Laws of 2021, Ch 352, § 10 amended domestic relations law § 142 effective  August 2, 2021, replacing  "mentally ill" with with  a  developmental disability or person with a mental illness and adding "with a mental illness."
 
 
Domestic Relations Law § 142 was amended to read as follows:
 
     § 142.  Dismissal of complaint in action by next  friend  to  annul  a
   marriage. Where the next friend of an infant, person
   with  a  developmental disability or person with a mental
   illness maintains an action annulling a marriage, the court may  dismiss
   the  complaint  if  justice  so  requires, although, in a like case, the
   party to the marriage, if plaintiff, would be entitled to judgment.
 
 
​
August 1, 2021
 
Laws of 2021, Chapter 306, effective August 22, 2021, amended several provisions of the Domestic Relations Law to raise the age of consent for purposes of marriage to the age of eighteen. 
 Domestic Relations Law §15-a was amended Laws of 2021, Chapter 306, Section 1, to prohibit any marriage in which either party is under the age of eighteen. The word “seventeen” was replaced with the word “eighteen.”
 
It was amended to read as follows:
§  15-a.  Marriages of minors under eighteen years of age.
 
Any marriage in which either party is under the age of eighteen years is hereby prohibited. Any town or city clerk who shall  knowingly issue a marriage license to any persons, one or both of whom shall be  at the time of their contemplated marriage actually under the age of eighteen years, shall be guilty  of  a  misdemeanor  and  on conviction thereof shall be fined in the sum of one hundred dollars.
 
Domestic Relations Law §13-b was amended Laws of 2021, Chapter 306, Section 2,  to conform it with raising the age of marriage to eighteen, by removing the prior provision stating that parties must be at least seventeen in order for clergyman or magistrate to solemnize such marriages without waiting specified periods of time.
 
It was amended to read as follows:
§ 13-b. Time within which marriage may be solemnized. A marriage shall not  be  solemnized  within  twenty-four hours after the issuance of the marriage license, unless authorized by an order of a court of record  as hereinafter  provided,  nor shall it be solemnized after sixty days from the date of the issuance  of  the  marriage  license  unless  authorized pursuant  to  section  three  hundred fifty-four-d of the executive law.
Every license to marry hereafter issued by a  town  or  city  clerk,  in addition to other requirements specified by this chapter, must contain a statement  of  the day and the hour the license is issued and the period during which the marriage may be solemnized. It shall be the duty of the clergyman or magistrate performing the  marriage  ceremony,  or  if  the marriage is solemnized by written contract, of the judge before whom the
contract  is  acknowledged,  to  annex  to  or endorse upon the marriage license the date and hour the marriage is solemnized. A judge or justice of the supreme court of this state or the county judge of the county  in which  either party to be married resides, or the judge of the family    court of  such  county, if  it  shall  appear  from  an examination of the license and any other proofs submitted by the parties that one of the parties is in danger  of imminent  death, or by reason of other emergency public interest will be promoted thereby, or that such delay will  work  irreparable  injury  or great  hardship upon the contracting parties, or one of them, may, make an order authorizing the immediate solemnization  of  the marriage and upon filing such order with the clergyman or magistrate performing the marriage ceremony, or if the marriage is to  be solemnized by written  contract,  with  the  judge  before  whom  the    contract  is  acknowledged,  such  clergyman or magistrate may solemnize such marriage, or such judge may take such acknowledgment  as  the  case may  be,  without waiting for such three day period and twenty-four hour period to elapse. The clergyman, magistrate  or  judge  must  file  such order  with  the  town  or city clerk who issued the license within five days after the marriage is solemnized. Such  town  or  city  clerk  must record and index the order in the book required to be kept by him or her for recording affidavits, statements, consents and licenses, and when so recorded  the  order  shall  become a public record and available in any prosecution under this section. A person who shall solemnize a  marriage in  violation  of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of fifty dollars for each offense, and in addition thereto,  his  or  her  right  to  solemnize  a marriage shall be suspended for ninety days.
 
 
Domestic Relations Law §25 was amended Laws of 2021, Chapter 306, Section 3,  to conform it with raising the age of marriage to eighteen by removing a provision that referred to marriages between minors or with a minor. 
It was amended to read as follows:
§ 25. License, when to be obtained. The  provisions  of  this  article pertaining  to  the  granting  of  the licenses before a marriage can be lawfully celebrated  apply  to  all  persons  who  assume  the  marriage relation  in  accordance with subdivision four of section eleven of this chapter. Nothing in this article contained shall be construed to  render void  by  reason of a failure to procure a marriage license any marriage
solemnized between persons of full age.
  
Domestic Relations Law  §7 was amended by Laws of 2021, Chapter 306, Section 4, removing text in order to make any marriage where either party is under the age of eighteen voidable.
 It was amended to read as follows:
 1. Is under the age  of  legal  consent,  which  is  eighteen  years;
 
Domestic Relations Law §15 subdivision 3, which relates to criteria that must be met prior to a town or city clerk issued a marriage license to a couple when either party is less than eighteen years of age but at least seventeen was repealed by Laws of 2021, Chapter 306, Section 5. 
Domestic Relations Law §11-a, subdivision 1(c), which relates to the duty of a city clerk to solemnize the rites of matrimony between parties in which one or both individuals are under eighteen was repealed by Laws of 2021, Chapter 306, Section 6. 
Domestic Relations Law §84 relating to the impact on a guardianship of a marriage by a person prior to reaching the age of eighteen was  repealed by Laws of 2021, Chapter 306, Section 7. 
Laws of 2021, Chapter 306, Section 8 states that this act will take effect, thirty days after it becomes law, it will apply to licenses issued after such date and to marriages that had not been solemnized prior to said date. Laws of 2021, Ch 306 became a law on July 22, 2021.
 
 
New and Amended Local Rules of the Appellate Division, First Department Updated June 25, 2021
 
Hard Copy Filing - NEW
 
Briefs, Records and Appendices. Commencing with appeals perfected for the
September 2021 Term, in addition to electronic filing, the Court will require the
original and one copy (for a total of two hard copies) of records, appendices and briefs in civil appeals only to be filed with the clerk.
 
In all e-filed matters, the filing of such hard copies shall be delayed until receipt
of email notification that the clerk has reviewed and approved the electronic version of the document. Once approved, the hard copies shall be filed within two business days of the notification (see Rule 1245.6[2]).
 
Motions and Original Proceedings. Motions and applications, and original
proceedings shall be filed in digital form only (via NYSCEF or Digital Submission
Portal). No hard copy submission is required.
 
Hyperlinks – NEW
 
Commencing with all appeals perfected for the September 2021 Term, the Court
will accept, on a voluntary basis, briefs with hyperlinks to cited primary authorities (constitutions, case law, statutes, rules and regulations) available on Westlaw, Lexis, or state or federal government websites. Citations to secondary and other sources should not be hyperlinked. All citations (with or without hyperlinks) shall appear in standard citation form.
 
Electronic Filing
 
Matters Subject to Mandatory E-filing
 
All matters before the First Department, except original proceedings and
attorney matters, are subject to mandatory e-filing via NYSCEF in accordance with the procedural and electronic filing rules of the Court.
 
See https://nycourts.gov/courts/AD1/PDFs/AD1-2.0AugustUpdate2021.pdf
(Last accessed July 12, 2021)
 
Amended Local Rules of the Appellate Division, Third Department as of November 2, 2020 - 22 NYCRR 850.4 (a) 
Rule 1250.9 of the Practice Rules of the Appellate Division requires parties to submit a digital copy of all briefs, records and appendices, in addition to hard copies.
As of November 2, 2020, Rule 850.4 (a) of the Rules of Practice of the Third Department requires digital copies of all papers related to motions and applications, in addition to hard copies.
            These Rules apply to all matters, regardless of whether the matter is subject to mandatory e-filing.  22 NYCRR 1250.1 (a) (12) defines "digital copy" as "a document in text-searchable portable document format and otherwise compliant with the technical requirements established by the court." E-filed matters satisfy the "digital copy" requirement 22 NYCRR 1250.9. "Pro se or unrepresented parties shall be exempt from the requirements of filing a digital copy of any brief or other document" (22 NYCRR 1250.9 [e]), including motions and applications (see 22 NYCRR 850.4 [a]).
          For all non-E-filed matters, digital copies shall be submitted through the Court's Digital Submission Portal. The Third Department requires digital copies to comply with the technical requirements as set forth in Attachment A of the E-filing Rules of the Appellate Division. Use the links below to submit digital copies. Filers who are using the digital portal for the first time must request access to use the system.
(See https://www.nycourts.gov/ad3/Clerk/Index.html ) Last accessed July 11, 2021)
 
Amended Local Rules of the Appellate Division: Fourth Department - 22 NYCRR 1000.4 – July  1, 2020 Digital Submission of Motion Papers in Non efiled cases 
Effective July 1, 2020, the local rules of the Appellate Division, Fourth Department (22 NYCRR Part 1000) have been amended to provide for digital submission of motion papers. The amended motion rule, new Rule 1000.4 (a), requires the submission of digital motion papers in non-e-filed cases, with an exception for exempt attorneys and parties, and dispenses with the requirement that a hard copy of such motion papers be filed.  (See 22 NYCRR Part 1000.4)
 
22 NYCRR 1000.4 (a).
In matters not subject to electronic filing, except as otherwise provided, all motion and application papers shall be submitted in digital format through the Court’s digital copy portal, and shall be served on all parties electronically to the extent practicable in accordance with 22 NYCRR 1250.1 (c)(4). Digital copies of motions and applications shall comply with the technical specifications for electronically filed documents (Attachment A to 22 NYCRR Part 1245). Where such papers are submitted in digital format, no hard copy submission is required. Exempt attorneys and exempt litigants, as defined in 22 NYCRR 1245.4, are exempt from the digital filing requirement and must file original papers in hard copy in accordance with 22 NYCRR 1250.4 (a).
 
Electronic filing (e-filing): Fourth Department New Rule 22 NYCRR 1000.17  - July 1, 2020 Mandatory e-filing in Family Court

Effective July 1, 2020, the local rules of the Appellate Division, Fourth Department (22 NYCRR Part 1000) have been amended to provide for mandatory e-filing in Family Court and criminal matters, Rule 1000.17, addresses the application of the e-filing rules to assigned counsel, requires the e-filing of a specified appendix in both Family Court and criminal matters, and encourages e-filing of court transcripts where possible. The new rule also requires motions to be e-filed in Family Court and criminal matters, and dispenses with the requirement that a hard copy of such motions be filed. 
(See https://ad4.nycourts.gov/press/notices/5ef1db8ea5e5aa60dc973a3b  (last accessed July 11, 2021)
 
New and Amended Local Rules of the Appellate Division Fourth Department Effective April 1 2021[1] 
1000.2 Designation of Case Types Subject to Electronic Filing
 
Pursuant to 22 NYCRR 1245.2, to the extent not previously designated by the
Court for mandatory electronic filing, all appeals filed with the Court in which a
notice of appeal is filed on or after April 1, 2021, all matters transferred to the
Court by order dated on or after April 1, 2021, and all special proceedings
commenced in the Court on or after April 1, 2021 shall be designated for
mandatory electronic filing and subject to 22 NYCRR Part 1245 and the Rules of
Practice of this Court governing electronic filing. [2]
 
1000.4 Motions
 
(a) Digital submissions required. In matters not subject to electronic filing, except as
otherwise provided, all motion and application papers shall be submitted in digital
format through the Court’s digital copy portal, and shall be served on all parties electronically to the extent practicable in accordance with 22 NYCRR 1250.1 (c) (4). Digital copies of motions and applications shall comply with the technical specifications for electronically filed documents (Attachment A to 22 NYCRR Part 1245). [3]Where
such papers are submitted in digital format, no hard copy submission is required.
Exempt attorneys and exempt litigants, as defined in 22 NYCRR 1245.4, are
exempt from the digital filing requirement and must file original papers in hard
copy in accordance with 22 NYCRR 1250.4 (a).
 
(d) Family Court Act § 1114 and CPLR 5704 (a). Unless otherwise ordered by a
Justice of this Court, an application for a stay pursuant to Family Court Act § 1114
or an application pursuant to CPLR 5704 (a) shall be made by order to show cause
pursuant to 22 NYCRR 1250.4 (b). An application to extend a stay granted
pursuant to Family Court Act § 1114 shall be made by motion on notice pursuant
to 22 NYCRR 1250.4 (a). [4]
 
1000.7 Form and Content of Records and Appendices; Exhibits
 
(b) Certification of record or appendix. An original record shall be certified either by:
(1) a certificate of the appellant's attorney pursuant to CPLR 2105; (2) a certificate
of the proper clerk; or (3) a stipulation in lieu of certification pursuant to CPLR
5532 or, if the parties are unable to stipulate, an order settling the record. [5] Any
dispute over a certification of the record or appendix pursuant to 22 NYCRR
1250.7 (g) or this subdivision, [6] or the contents of a record or appendix so certified,
shall be directed to the court from which the appeal is taken.
 
(d) Appendices - criminal appeals. Pursuant to 22 NYCRR 1250.7 (d) (3), in a
criminal matter, when permission to proceed as a poor person has been granted,
the appendix to be filed and served by the appellant shall contain, in the following
order: the description of the action required by CPLR 5531; a copy of the notice of
appeal with proof of service and filing; a copy of the certificate of conviction and
the judgment from which the appeal is taken; a copy of the indictment, superior
court information or other accusatory instrument; all motion papers, affidavits and,
to the extent practicable, written and photographic exhibits relevant and necessary
to the determination of the appeal; a copy of any prior order entered by the trial
court affecting the appeal, including but not limited to an order that grants a stay;
and, pursuant to 22 NYCRR 1250.7 (g), the stipulation of the parties or their
attorneys to the correctness of the record, the order settling the record, the
certificate of the appellant's attorney pursuant to CPLR 2105, or the certificate of
the proper clerk. [7] [8]
 
(e) Demand for exhibits. Absent a stipulation of the parties pursuant to 22 NYCRR
1250.7 (c) or 1250.11 (c), all original exhibits shall be submitted to the Court.
Upon perfecting an appeal, an appellant shall file the original exhibits or, when the
exhibits are in the control of a respondent or a third party, a five-day written
demand for the exhibits or a subpoena duces tecum for the exhibits issued in
accordance with CPLR article 23, with proof of service thereof. The failure of a
respondent to comply with a five-day demand may result in sanctions pursuant to
22 NYCRR 1250.1 (h). [9]
 
1000.9 Time, Number and Manner of Filing of Records, Appendices and
Briefs
 
(a) Extension of time to perfect. An extension of time to perfect an appeal may be
obtained, pursuant to 22 NYCRR 1250.9 (b), by a letter application, stipulation or
motion. A stipulation to extend the time to perfect an appeal pursuant to 22
NYCRR 1250.9 (b) shall be filed on or before the date by which the appeal is
required to be perfected. [10] A motion for an extension of time to perfect an appeal
pursuant to 22 NYCRR 1250.9 (b) shall be supported by an affidavit
demonstrating with particularity a reasonable excuse for the delay and an intent to
perfect the appeal within a reasonable time.
 
(b) Extension of time to file brief. An extension of time to file and serve a responsive
brief may be obtained, pursuant to 22 NYCRR 1250.9 (g), by a letter application,
stipulation or motion. [11]A stipulation to extend the time to file and serve a
responsive brief pursuant to 22 NYCRR 1250.9 (g) (1) shall be filed on or before
the date by which the brief was originally required to be filed. In no case shall the
parties stipulate to [12]an extension of time to file and serve a
responsive brief that would permit the filing and service of the brief within 30
days of the date upon which the matter is scheduled to be heard. A motion for an
extension of time to file and serve a responsive brief pursuant to 22 NYCRR
1250.9 (g) (2) shall be supported by an affidavit demonstrating with particularity a
reasonable excuse for the delay and an intent to file and serve the brief within a
reasonable time.
 
(c) Hard copies of records and appendices
 
(1) Hard copies of records and appendices in matters perfected upon the
reproduced full record method or appendix method. Except where a party
is exempt from filing a digital copy of a document pursuant to 22 NYCRR
1245.4 or 1250.9 (e), the hard copy filing requirement in 22 NYCRR
1245.6 (a) and 1250.9 (a) (1) and (a) (2) with respect to records and
appendices in matters perfected using the reproduced full record method or
appendix method shall be satisfied by the filing of an original and two hard
copies of the record or appendix. Parties exempt from filing a digital copy
of a document shall file the number of hard copies of records and
appendices otherwise provided by the rules.
(2) Hard copies of records and appendices in matters perfected upon the
original record. The hard copy filing requirement in 22 NYCRR 1245.6 (a)
with respect to records and appendices in matters perfected upon the
original record shall be satisfied by the filing of a hard copy of the complete
record, consistent with 22 NYCRR 1250.9 (a) (4) (ii). [13]
 
(d)[14] Digital copies. In matters not subject to electronic filing, digital copies of the
records, appendices and briefs filed pursuant to 22 NYCRR § 1250.9 (a), (c) and
(d) shall comply with the technical specifications for electronically filed
documents (Attachment A to 22 NYCRR Part 1245) and shall be filed and served
as directed by the Clerk of the Court.[15]
 
(e) Service of original record in matters not subject to e-filing. When perfecting on
the original record pursuant to 22 NYCRR 1250.9 (a) (4), an appellant shall file a
hard copy of the complete record, together with proof of service of one hard copy
of the record upon each other party to the appeal. [16]
 
1000.11 Additional Rules Relating to Criminal Appeals
(c) Pro se supplemental briefs where counsel does not seek to withdraw. When
assigned counsel does not move to be relieved as counsel[17] , a defendant wishing to file a pro se supplemental brief pursuant to 22 NYCRR 1250.11 (g) (2)shall file an original and five copies of such brief, with proof of service of one copy on assigned counsel and one copy on the People. [18]  The[19] People may file and serve an original and five hard copies and a digital copy of a responding brief, with proof of service of one copy on assigned counsel and one copy on the defendant [20]no later than 45 days after
defendant has served the pro se supplemental brief. A request for an extension of
time to file and serve a pro se supplemental brief or a responding brief shall be
made by motion and supported by an affidavit demonstrating with particularity a
reasonable excuse for the delay and an intent to file and serve the brief within a
reasonable time. [21]
 
1000.12 Transferred Proceedings.
 
(a) Original papers. A proceeding transferred to this Court pursuant to CPLR
7804 (g) shall be prosecuted upon the original papers, which shall include the
notice of petition or order to show cause and petition, answer, any other transcript
or document submitted to Supreme Court, the transcript of any proceedings at
Supreme Court, the order of transfer and any other order of Supreme Court. When
the proceeding has been transferred prior to the filing and service of an answer, a
respondent shall file and serve an answer within 25 days of filing and service of
the order of transfer. When a proceeding has been transferred to this Court
pursuant to Executive Law § 298, the State Division of Human Rights shall file
with the Clerk the record of the proceedings within 45 days of the date of entry of
the order of transfer. Pursuant to Rule 1000.2, matters transferred to the Court by
order dated on or after April 1, 2021 must be electronically filed pursuant to 22
NYCRR Part 1245. [22]
 
1000.15 Calendar Preference or Adjournment; Calendar Notice; Oral
Argument; Post-Argument Submissions
 
(b) Scheduling order. After an appeal is perfected or an original or transferred
proceeding is filed or received, the Clerk shall, where appropriate, issue a
scheduling order, which will specify the term of Court for which the matter has
been scheduled and set a deadline for the service and filing of respondents’ briefs[23], if any. A party or a party’s attorney shall notify the Clerk in
writing within 15 days of the date that the scheduling order was mailed of
unavailability for oral argument on a specific date or on specific dates during the
term.
 
1000.15 Calendar Preference or Adjournment; Calendar Notice; Oral
Argument; Post-Argument Submissions
 
(e) Post-argument submissions. Any request for leave to file a post-argument
submission shall be [24]filed, with proof of service, [25] within five
business days of oral argument, and shall be accompanied by an original, five hard
copies, and a digital [26]copy of the proposed submission.
 
1000.17 Electronic Filing
 
(a) Entry of initial information for electronic filing
 
(1) Application for assigned counsel. When the appellant seeks the assignment
of counsel to prosecute an appeal, the entry of initial information for
electronic filing pursuant to 22 NYCRR 1245.3 (a) shall not be required
until the Court[27] issues an order with respect to an application for the
assignment of counsel. Where the Court[28] issues an order assigning counsel,
the entry of initial information, to the extent not previously accomplished,
shall be completed within 14 days of the date of the order. Where an
application for the assignment of counsel is denied, the appellant shall be
deemed exempt from e-filing and the matter shall be perfected in hard copy,
unless the appellant chooses to voluntarily participate in e-filing pursuant to
22 NYCRR 1245.4 (d) or engages counsel to prosecute the appeal who is
not an exempt attorney.
 
(3) Effect of failure to enter[29] initial[30] information. Except as otherwise provided,
no submission will be accepted in a case subject to mandatory e-filing prior
to the entry of initial information and service of notification of the docket
number pursuant to 22 NYCRR 1245.3.
 
(b) Perfecting a criminal appeal.
 
(4) Hard copy filing; transcripts. Hard copies of the appendix, appellant’s brief,
and the transcripts upon which the appeal is based must be filed with the
clerk within two business days of receipt by the appellant of email
notification that the clerk has reviewed and approved the electronic filing
required in subdivision (2) of this section. [31]The appellant shall submit one hard copy each of the appendix and transcripts, and an original and five hard copies of appellant’s brief. [32] A failure to file such additional hard copies of documents shall cause the filing to be deemed incomplete.
 
(c) Perfecting a Family Court appeal.
 
(1) Service of notice of appellate docket number. With respect to a Family
Court appeal, service of notification of the appellate docket number, as
required in 22 NYCRR 1245.3 (b), must be made upon both respondent's
counsel and respondent individually. [33]
 
(5) Hard copy filing; transcripts. Hard copies of the appendix, appellant’s
brief, and the transcripts upon which the appeal is based must be filed with
the clerk within two business days of receipt by the appellant of email
notification that the clerk has reviewed and approved the electronic filing
required in subdivision (3) of this section.[34] The appellant shall submit one hard copy each of the appendix and transcripts, and an original and five hard copies of appellant’s brief. [35] A failure to file such additional hard copies of documents shall cause
the filing to be deemed incomplete.
 
(6) Respondent on Appeal.
(A) Respondent’s e-filing status. A respondent shall be deemed exempt
from e-filing unless the Court[36] issues an order assigning counsel to
represent the respondent on appeal, the respondent engages appellate
counsel who is not an exempt attorney, or the respondent chooses to
voluntarily participate in e-filing pursuant to 22 NYCRR 1245.4 (d).
(B) Entry of information by respondent’s counsel. When the Court[37]
issues an order assigning counsel to represent a respondent on appeal
or a respondent engages counsel who is not an exempt attorney,
counsel for the respondent must record that representation in
accordance with 22 NYCRR 1245.3 (d) within 20 days of the date of
the order of assignment or the date upon which appellate counsel
was engaged, as appropriate; provided that, if the assignment or
engagement of appellate counsel for a respondent occurs prior to the
entry, by appellant’s counsel, of initial information for e-filing
pursuant to 22 NYCRR 1245.3 (a), counsel for the respondent must
record that representation within 20 days of service upon
respondent’s counsel of notification of the appellate docket number
as required in 22 NYCRR 1245.3 (b).
 
[1] New matter underlined. Deleted matter in Footnotes.
[2] New
[3] New
[4] New
[5] New
[6] New
[7] New
[8] Deleted: and the stipulation of the parties or their attorneys to the complete record, the order settling the record, or the certification of the record pursuant to 22 NYCRR 1250.7 (g). The appellant shall also file a copy of any prior order entered by this Court or the trial court affecting the appeal including, but not limited to, an order that: expedites the appeal; grants permission to proceed on appeal as a poor person or on less than the required number of records and briefs; assigns counsel; grants an extension of time to perfect the appeal; grants a stay or injunctive relief; grants relief from dismissal of the appeal; or grants permission to exceed page limitations.
[9] New
[10] New
[11] New
[12] Deleted: , or apply by letter for,
[13] New
[14] Deleted: (c)
[15] Deleted: c
[16] New
[17] Deleted: and defendant has filed a
pro se supplemental brief pursuant to 22 NYCRR 1250.11 (g) (2)
[18] New
[19] Deleted: t
[20] Deleted: the defendant and assigned counsel,
[21] New
[22] New
[23] Deleted: and reply briefs
[24] Deleted: made in writing
[25] New
[26] New
[27] Deleted: c;
[28] Deleted: c
[29] New
[30] Deleted: I
[31] Deleted: With respect to criminal appeals
in which permission to proceed as a poor person has been granted, t
[32] Deleted: The filing of hard
copies shall otherwise be as set forth in 22 NYCRR 1245.6 (a).
[33] Deleted: Where the Court has issued an order
assigning counsel to prosecute an appeal, such that an appellate docket
number has previously been received by counsel for the appellant, service
of notification of the appellate docket number shall be made within seven
days of the date upon which counsel completes the entry of initial
information for electronic filing pursuant to 22 NYCRR 1245.3 (a).
[34] Deleted: With respect to Family Court appeals in which permission to proceed as a poor person has been granted, t
[35] Deleted: The filing of hard copies shall otherwise be as set forth in 22 NYCRR 1245.6
(a).
[36] Deleted : c
[37] Deleted: c

The Child Support Standards Chart (PDF) was released on March 1, 2021. 
​
​New Uniform Rules for Trial Courts adopted effective February 1, 2021. The Chief Administrative Judge enacted an order which amended the Uniform Rules for Trial Courts effective February 1, 2021. Click on the link to download a copy of the Special Edition of Bits and Bytes™ which contains all of the amended and new rules.
​
22 NYCRR 202.16 (k) and 202.16-b amended effective January 19, 2021 (AO/31/21)(Click on link to download a copy).
 
Laws of 2021, Ch 56, Part L § 4 amended the Family Court Act, effective September 29, 2021 subject to certain conditions, by adding a new section 353.7 to read as follows:
  
Placement in qualified residential treatment programs
 
1. The provisions of this section shall apply when a respondent is placed on or after September twenty-ninth, two thousand twenty-one and resides in a non-secure setting that is a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district or the office of children and family services in accordance with this article.
  2. (a) When a respondent is in the care and custody of a local social services district or the office of children and family services pursuant to this article, such social services district or office shall report any anticipated placement of the respondent into a qualified residential treatment program as defined in section four hundred nine-h of the social services law to the court and the attorneys for the parties, including the attorney for the respondent, forthwith, but not later than one business day following either the decision to place the respondent in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district or office shall subsequently notify the court and the attorneys for the parties, including the attorney for the respondent, of the date the placement change occurred, such notice shall occur no later than one business day following the placement change.
  (b) When a respondent whose legal custody was transferred to a local social services district or the office of children and family services in accordance with this article resides in a qualified residential treatment program as defined in section four hundred nine-h of the social services law, and where such respondent's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district or the office of children and family services with legal custody of the respondent, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the respondent in the qualified residential treatment program commenced.
  3. (a) Within sixty days of the start of a placement of a respondent referenced in subdivision one of this section in a qualified residential treatment program, the court shall:
  (i) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law;
  (ii) Determine whether the needs of the respondent can be met through placement in a foster family home and, if not, whether placement of the respondent in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the respondent as specified in the respondent's permanency plan; and
  (iii) Approve or disapprove the placement of the respondent in a qualified residential treatment program. Provided that, where a qualified individual determines that the placement of the respondent in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the respondent in the qualified residential treatment program if:
  (A) the court finds, and states in the written order that:
  (1) circumstances exist that necessitate the continued placement of the respondent in the qualified residential treatment program;
  (2) there is not an alternative setting available that can meet the respondent's needs in a less restrictive environment; and
  (3) that continued placement in the qualified residential treatment program serves the respondent's needs and best interests or the need for protection of the community; and
  (B) the court's written order states the specific reasons why the court has made the findings required pursuant to clause (A) of this subparagraph.
  (iv) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination.
  (b) At the conclusion of the review, if the court disapproves placement of the respondent in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the respondent and direct the local social services district or office of children and family services, as applicable, to make such other arrangements for the respondent's care and welfare that is in the best interest of the respondent and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order.
  4. The court may, on its own motion, or the motion of any of the parties or the attorney for the respondent, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to clause (A) of subparagraph (iii) of paragraph (a) of subdivision three of this section and provide such written order to the parties and the attorney for the respondent expeditiously, but no later than five days.
  5. Documentation of the court's determination pursuant to this section shall be recorded in the respondent's case record.
  6. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such respondent, including but not limited to the respondent's permanency hearing, provided such approval is completed within sixty days of the start of such placement.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
     
Laws of 2021, Ch 56, Part L § 5 amended Family Court Act §355.5, effective September 29, 2021 subject to certain conditions, by adding a new subdivision 10 to read as follows:
 
10. Where the respondent remains placed in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, the commissioner of the local social services district or the office of children and family services with legal custody of the respondent shall submit evidence at the permanency hearing with respect to the respondent:
(a) demonstrating that ongoing assessment of the strengths and needs of the respondent cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment, and that the placement is consistent with the short-term and long-term goals for the respondent, as specified in the respondent's permanency plan;
(b) documenting the specific treatment and service needs that will be met for the respondent in the placement and the length of time the respondent is expected to need the treatment or services; and
(c) documenting the efforts made by the local social services district or the office of children and family services with legal custody of the respondent to prepare the respondent to return home, or to be placed with a fit and willing relative, legal guardian or adoptive parent, or in a foster family home.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
 
Laws of 2021, Ch 56, pt. L, § 6. amended Family Court Act §756-a, effective September 29, 2021 subject to certain conditions, by adding a new   subdivision (h) to read as follows:
 
h) Where the respondent remains placed in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, the commissioner of the local social services district with legal custody of the respondent shall submit evidence at the permanency hearing with respect to the respondent:
(i) demonstrating that ongoing assessment of the strengths and needs of the respondent continues to support the determination that the needs of the respondent cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment, and that the placement is consistent with the short-term and long-term goals of the respondent, as specified in the respondent's permanency plan;
(ii) documenting the specific treatment or service needs that will be met for the respondent in the placement and the length of time the respondent is expected to need the treatment or services; and
(iii) documenting the efforts made by the local social services district with legal custody of the respondent to prepare the respondent to return home, or to be placed with a fit and willing relative, legal guardian or adoptive parent, or in a foster family home.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
 
Laws of 2021, Ch 56, Part L § 7 amended the Family Court Act, effective September 29, 2021 subject to certain conditions, by adding a new section 756-b to read as follows:
 
Court review of placement in a qualified residential treatment program.
 
1. The provisions of this section shall apply when a respondent is placed on or after September twenty-ninth, two thousand twenty-one and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district in accordance with this part.
  2. (a) When a respondent is in the care and custody of a local social services district pursuant to this part, such social services district shall report any anticipated placement of the respondent into a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, to the court and the attorneys for the parties, including the attorney for the respondent, forthwith, but not later than one business day following either the decision to place the respondent in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district shall subsequently notify the court and the attorneys for the parties, including the attorney for the respondent, of the date the placement change occurred; such notice shall occur no later than one business day following the placement change.
  (b) When a respondent whose legal custody was transferred to a local social services district in accordance with this part resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such respondent's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the respondent in the qualified residential treatment program commenced.
  3. (a) Within sixty days of the start of a placement of a respondent referenced in subdivision one of this section in a qualified residential treatment program, the court shall:
  (i) Consider the assessment, determination and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law;
  (ii) Determine whether the needs of the respondent can be met through placement in a foster family home and, if not, whether placement of the respondent in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the respondent as specified in the respondent's permanency plan; and
  (iii) Approve or disapprove the placement of the respondent in a qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the respondent in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the respondent in the qualified residential treatment program if:
  (A) the court finds, and states in the written order that:
  (1) circumstances exist that necessitate the continued placement of the respondent in the qualified residential treatment program;
  (2) there is not an alternative setting available that can meet the respondent's needs in a less restrictive environment; and
  (3) that it would be contrary to the welfare of the respondent to be placed in a less restrictive setting and that continued placement in the qualified residential treatment program is in the respondent's best interest; and
  (B) the court's written order states the specific reasons why the court has made the findings required pursuant to clause (A) of this subparagraph.
  (iv) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination.
  (b) At the conclusion of the review, if the court disapproves placement of the respondent in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the respondent and direct the local social services district to make such other arrangements for the respondent's care and welfare that is in the best interest of the respondent and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order.
  4. The court may, on its own motion, or the motion of any of the parties or the attorney for the respondent, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to clause (A) of subparagraph (iii) of paragraph (a) of subdivision three of this section and provide such written order to the parties and the attorney for the respondent expeditiously, but no later than five days.
  5. Documentation of the court's determination pursuant to this section shall be recorded in the respondent's case record.
  6. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such respondent, including but not limited to the respondent's permanency hearing, provided such approval is completed within sixty days of the start of such placement.
 (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
 
Laws of 2021, Ch 56, Part L § 8 amended the opening paragraph of Family Court Act §1017(5), effective September 29, 2021 subject to certain conditions, by designating it paragraph (a) and adding new paragraph (b) to read as follows:
 
        (b)  When  a  child whose legal custody was transferred to the commissioner of a local social  services  district  in  accordance  with  this section resides in a qualified residential treatment program, as defined in  section  four  hundred  nine-h of the social services law, and whereby such child's initial placement or change in placement  in  such  program commenced  on  or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall  schedule a court review to make an assessment and determination of  such placement  in  accordance with section one thousand fifty-five-c of this article. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
 
Laws of 2021, Ch 56, Part L § 9 amended the opening paragraph of Family Court Act §1055(j), effective September 29, 2021 subject to certain conditions, by designating it paragraph (i) and adding new paragraph (ii) to read as follows:
 
        (ii)  When  a child whose legal custody was transferred to the commissioner of a local social  services  district  in  accordance  with  this section resides in a qualified residential treatment program, as defined in  section  four  hundred  nine-h of the social services law, and where such child's initial placement or change in placement  in  such  program commenced  on  or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (i) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of  such placement  in  accordance with section one thousand fifty-five-c of this part. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
 
 Laws of 2021, Ch 56, Part L § 10 amended the family court act, effective September 29, 2021 subject to certain conditions, by adding a new section 1055-c to read as follows:
 
Court review of placement in a qualified residential treatment program.
 
1. The provisions of this section shall apply when a child is placed on or after September twenty-ninth, two thousand twenty-one and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to the commissioner of a local social services district in accordance with this article.
  2. Within sixty days of the start of a placement of a child referenced in subdivision one of this section in a qualified residential treatment program, the court shall:
  (a) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law;
  (b) Determine whether the needs of the child can be met through placement in a foster family home and, if not, whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the child, as specified in the child's permanency plan; and
  (c) Approve or disapprove the placement of the child in a qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the child in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the child in the qualified residential treatment program if:
  (i) the court finds, and states in the written order that:
  (A) circumstances exist that necessitate the continued placement of the child in the qualified residential treatment program;
  (B) there is not an alternative setting available that can meet the child's needs in a less restrictive environment; and
  (C) that continued placement in the qualified residential treatment program is in the child's best interest; and
  (ii) the court's written order states the specific reasons why the court has made the findings required pursuant to subparagraph (i) of this paragraph.
  (d) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination.
  3. At the conclusion of the review, if the court disapproves placement of the child in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the child and direct the local social services district to make such other arrangements for the child's care and welfare that is in the best interest of the child and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order.
  4. The court may, on its own motion, or the motion of any of the parties or the attorney for the child, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to subparagraph (i) of paragraph (c) of subdivision two of this section and provide such written order to the parties and the attorney for the child expeditiously, but no later than five days.
  5. Documentation of the court's determination pursuant to this section shall be recorded in the child's case record.
  6. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such child, including but not limited to the child's permanency hearing, provided such approval is completed within sixty days of the start of such placement.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
 
Laws of 2021, Ch 56, Part L § 11 amended Family Court Act §1089, (c)(5)(ix)(C), effective September 29, 2021 subject to certain conditions, by adding a new paragraph 6 to read as follows:
 
        (C) if the child is over age fourteen and has voluntarily withheld his or her consent to an adoption, the facts and circumstances regarding the child’s decision to withhold consent and the reasons therefor; and
        (6) Where the child remains placed in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, the commissioner of the social services district with legal custody of the child shall submit evidence at the permanency hearing with respect to the child:
      (i)  demonstrating that ongoing assessment of the strengths and needs of the child continues to support the determination that the needs of the child cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment, and that the placement is consistent with the short-term and long-term goals for the child, as specified in the      child's permanency plan;
        (ii) documenting the specific treatment or service needs that will be met for the child in the placement and the length of time the child is expected to need the treatment or services; and
        (iii) documenting the efforts made by the local social services district to prepare the child to return home, or to be placed with a fit and willing relative, legal guardian or adoptive parent, or in a foster     family home.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
 
  Laws of 2021, Ch 56, Part L § 12 amended Family Court Act §1089, effective September 29, 2021 subject to certain conditions, by designating the opening paragraph of subdivision (d), 2 (vii)(H) item (I) and a new item (II) was added to read as follows:
 
       (II) When a child whose legal custody was transferred to  the  commissioner  of  a  local  social  services  district in accordance with this section resides in a qualified residential treatment program as  defined in section four hundred nine-h of the social services law and where such child's  initial  placement  or  change  in  placement  in  such program commenced on or after September twenty-ninth, two  thousand  twenty-one, upon  receipt of notice required pursuant to item (I) of this clause and     motion of the local social services district, the court shall schedule a  court review to make an assessment and determination of  such  placement  in  accordance  with  section  three  hundred ninety-three of the social services law or section one thousand fifty-five-c, one thousand  ninety-one-a  or one thousand ninety-seven of this chapter. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the       qualified residential treatment program commenced.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
Laws of 2021, Ch 56, Part L § 13. amended the Family Court Act, effective September 29, 2021 subject to certain conditions, by adding a new section 1091-a to read as follows:
Court review of placement in a qualified residential treatment program.
1. The provisions of this section shall apply when a former foster care youth is placed on or after September twenty-ninth, two thousand twenty-one, and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district or the office of children and family services in accordance with this article.
  2. (a) When a former foster care youth is in the care and custody of a local social services district or the office of children and family services pursuant to this article, such social services district or office shall report any anticipated placement of the former foster care youth into a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, to the court and the attorneys for the parties, including the attorney for the former foster care youth, forthwith, but not later than one business day following either the decision to place the former foster care youth in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district or office shall subsequently notify the court and attorneys for the parties, including the attorney for the former foster care youth, of the date the placement change occurred; such notice shall occur no later than one business day following the placement change.
  (b) When a former foster care youth whose legal custody was transferred to a local social services district or the office of children and family services in accordance with this article resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such former foster care youth's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the former foster care youth in the qualified residential treatment program commenced.
  3. Within sixty days of the start of a placement of a former foster care youth referenced in subdivision one of this section in a qualified residential treatment program, the court shall:
  (a) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law;
  (b) Determine whether the needs of the former foster care youth can be met through placement in a foster family home and, if not, whether placement of the former foster care youth in a qualified residential treatment program provides the most effective and appropriate level of care for the former foster care youth in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the former foster care youth, as specified in the former foster care youth's permanency plan; and
  (c) Approve or disapprove the placement of the former foster care youth in a qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the former foster care youth in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the former foster care youth in the qualified residential treatment program if:
  (i) the court finds, and states in the written order that:
  (A) circumstances exist that necessitate the continued placement of the former foster care youth in the qualified residential treatment program;
  (B) there is not an alternative setting available that can meet the former foster care youth's needs in a less restrictive environment; and
  (C) that continued placement in the qualified residential treatment program is in the former foster care youth's best interest; and
  (ii) the court's written order states the specific reasons why the court has made the findings required pursuant to subparagraph (i) of this paragraph.
  (d) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination.
  4. At the conclusion of the review, if the court disapproves placement of the former foster care youth in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the former foster care youth and direct the local social services district or office of children and family services, as applicable, to make such other arrangements for the former foster care youth's care and welfare that is in the best interest of the former foster care youth and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order.
  5. The court may, on its own motion, or the motion of any of the parties or the attorney for the former foster care youth, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to subparagraph (i) of paragraph (c) of subdivision three of this section and provide such written order to the parties and the attorney for the former foster care youth expeditiously, but no later than five days.
  6. Documentation of the court's determination pursuant to this section shall be recorded in the former foster care youth's case record.
  7. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such former foster care youth, including but not limited to the former foster care youth's permanency hearing, provided such approval is completed within sixty days of the start of such placement.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
 
Laws of 2021, Ch 56, Part L § 14 amended the family court act, effective September 29, 2021 subject to certain conditions, by adding a new section 1097 to read as follows:
 
Court review of placement in a qualified residential treatment program.
 
1. The provisions of this section shall apply when a child is placed on or after September twenty-ninth, two thousand twenty-one, and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district in accordance with this article.
  2. (a) When a child is in the care and custody of a local social services district pursuant to this article, such social services district shall report any anticipated placement of the child into a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, to the court and the attorneys for the parties, including the attorney for the child, forthwith, but not later than one business day following either the decision to place the child in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district shall subsequently notify the court and attorneys for the parties, including the attorney for the child, of the date the placement change occurred, such notice shall occur no later than one business day following the placement change.
  (b) When a child whose legal custody was transferred to a local social services district in accordance with this article resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such child's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced.
  3. Within sixty days of the start of a placement of a child referenced in subdivision one of this section in a qualified residential treatment program, the court shall:
  (a) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law;
  (b) Determine whether the needs of the child can be met through placement in a foster family home and, if not, whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the child, as specified in the child's permanency plan; and
  (c) Approve or disapprove the placement of the child in the qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the child in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the child in the qualified residential treatment program if:
  (i) the court finds, and states in the written order that:
  (A) circumstances exist that necessitate the continued placement of the child in the qualified residential treatment program;
  (B) there is not an alternative setting available that can meet the child's needs in a less restrictive environment; and
  (C) that continued placement in the qualified residential treatment program is in the child's best interest; and
  (ii) the court's written order states the specific reasons why the court has made the findings required pursuant to subparagraph (i) of this paragraph.
  (d) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination.
  4. At the conclusion of the review, if the court disapproves placement of the child in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the child and direct the local social services district to make such other arrangements for the child's care and welfare that is in the best interest of the child and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order.
  5. The court may, on its own motion, or the motion of any of the parties or the attorney for the child, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to subparagraph (i) of paragraph (c) of subdivision three of this section and provide such written order to the parties and the attorney for the child expeditiously, but no later than five days.
  6. Documentation of the court's determination pursuant to this section shall be recorded in the child's case record.
  7. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such child, including but not limited to the child's permanency hearing, provided such approval is completed within sixty days of the start of such placement.
(Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a))
 
 
Laws of 2021, Ch 56, pt. L, § 17
 
Ҥ 17. This act shall take effect September 29, 2021; provided, however, that the provisions of section fifteen of this act shall expire and be deemed repealed December 31, 2026; and provided, further, that:
(a)(i) notwithstanding any other provision of law, provisions in this act shall not take effect unless and until the state title IV-E agency submits to the United States Department of Health and Human Services, Administration for Children, Youth and Families, an amendment to the title IV-E state plan and the United States Department of Health and Human Services, Administration for Children, Youth and Families approves said title IV-E state plan amendment regarding when a child is placed in a qualified residential treatment program in relation to the following components: (1) the qualified individual and the establishment of the assessment by the qualified individual to be completed prior to or within 30-days of the child's placement as established by section three of this act; (2) the 60 day court reviews, including the ability to conduct at the same time as another hearing scheduled for the child, as established by sections one, two, four, seven, eight, nine, ten, twelve, thirteen and fourteen of this act; and (3) permanency hearing requirements as established by sections five, six and eleven of this act;
(ii) provided however, that if the United States Department of Health and Human Services, Administration for Children, Youth and Families fails to approve or disapproves any of the components listed in paragraph (i) of this subdivision, such action shall not impact the effective date for the remaining components listed therein;
(b) the office of children and family services shall inform the legislative bill drafting commission upon the occurrence of the submission set forth in subdivision (a) of this section and any approval related thereto in order that the commission may maintain an effective and timely database of the official texts of the state of laws of New York in furtherance of effectuating the provisions of section 44 of the legislative law and section 70-b of the public officers law;
(c) for the purposes of this act, the term “placement” shall refer only to placements made on or after the effective date of the Title IV-E state plan to establish the 30-day assessment, 60-day court review and permanency hearing requirements set forth in this act that occur on or after its effective date; and
(d) the office of children and family services and the office of court administration are hereby authorized to promulgate such rules and regulations on an emergency basis as may be necessary to implement the provisions of this act on or before such effective date.
 
 
 

Laws of 2021, Ch 97 amended Family Court Act §§ 712, 732, 773 and 1012, effective April 8, 2021 by deleting the word "incorrigible".

The Legislative Memorandum in support of the legislation states that the use of the word "incorrigible" in the context of family or children's courts dates back to the first juvenile court in Chicago in the late 1800s. It was adopted in New York when the first children's courts were established in the early 20th century and has carried over in each iteration of our juvenile or family court system since that time. Primarily applied to girls, and disproportionately to girls of color, this term - in practice - tends to single out girls of color for behaviors that do not match stereotypical feminine behavior. "Incorrigible" is defined as a person who is "incapable of being corrected, not reformable" (Merriam-Webster) and, thus this term is completely out of line with the current understanding of the goals of our Family Court system. The use of "incorrigibility" as a basis for Family Court intervention disparately impacts and harms girls and young women of color.  Eliminating this term from the Family Court Act is intended to send a positive message and assist in the efforts to achieve full equality and empowerment for girls, young women, and people of color.
 
Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to require reason for recusal

Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to add a new section 9. It provides that any judge who recuses himself  or  herself  from sitting  in  or  taking  any  part  in the decision of an action, claim,  matter, motion or proceeding must state the reason for  the  recusal  in  writing  or on the record. However, a judge is not required to provide a reason for recusal when the reason may result  in embarrassment, or is of a personal nature, affecting the judge  or  a   person  related to the judge within the sixth degree by consanguinity or    affinity.
 
Laws of 2020, Ch 346 amended Family Court Act §1055 (e) and Family Court Act §1091
 
Under existing law, young adults can return to foster care when they have no alternative and agree to participate in a vocational or educational program, upon the approval of the Family Court.
Family Court Act §1055 (e)  was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a subdivision (ii) to allow a former foster care youth to re-enter the foster care system without having to file a motion with the family court during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic. The commissioner of the local social services department is required to consider the same factors that the court is required to consider when determining the appropriateness of the former foster care youth reentering the foster care system. Any requirement to enroll in vocational or education program when a former foster care youth reenters the system is  waived during the time of the state of emergency. This section clarifies that to the extent a former foster care youth is denied the request to return to the custody of the local commissioner of social services, or other board or department authorized to receive children as public charges, that the youth would still have the opportunity to file a motion as authorized pursuant to family court act 1092. (See 2020 NY Legis Memo 346)
 
 Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to require reason for recusal
 
Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to add a new section 9. It provides that any judge who recuses himself  or  herself  from sitting  in  or  taking  any  part  in the decision of an action, claim,  matter, motion or proceeding must state the reason for  the  recusal  in  writing  or on the record. However, a judge is not required to provide a reason for recusal when the reason may result  in embarrassment, or is of a personal nature, affecting the judge  or  a   person  related to the judge within the sixth degree by consanguinity or    affinity.
 
 Laws of 2020, Ch 346 amended Family Court Act §1055 (e) and Family Court Act §1091
 
Under existing law, young adults can return to foster care when they have no alternative and agree to participate in a vocational or educational program, upon the approval of the Family Court.
 Family Court Act §1055 (e)  was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a subdivision (ii) to allow a former foster care youth to re-enter the foster care system without having to file a motion with the family court during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic. The commissioner of the local social services department is required to consider the same factors that the court is required to consider when determining the appropriateness of the former foster care youth reentering the foster care system. Any requirement to enroll in vocational or education program when a former foster care youth reenters the system is  waived during the time of the state of emergency. This section clarifies that to the extent a former foster care youth is denied the request to return to the custody of the local commissioner of social services, or other board or department authorized to receive children as public charges, that the youth would still have the opportunity to file a motion as authorized pursuant to family court act 1092. (See 2020 NY Legis Memo 346)
  
Laws of 2020, Ch 346, amended Family Court Act §1091
 
The opening paragraph of Family Court Act §1091 was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a provision which requires that during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic that former foster care youth can re-enter the foster care system without making a motion to the court, and that any requirement to enroll and
attend an educational or vocational program will be waived for the dura-
tion of the state of emergency. This section also clarifies, subsequent to former foster youth's return to placement without making a motion, as authorized under this section during the COVID-19 state of emergency, that nothing in this section would prohibit a local social service district from filing a motion for requisite findings needed to claim reimbursement under Title IV-E of the Federal Social Security Act to support the youth's care, and the family court shall hear and determine such motions. (See 2020 NY Legis Memo 346)

Laws of 2020, Chapter 299 amended Family Court Act §§ 305.2 and 344.2

Laws of 2020, Chapter 299 amended Family Court Act §§ 305.2 and 344.2 effective November 1, 2021,  to require video recording of the entirety of interrogations in all juvenile cases, including the provision of Miranda warnings and the waiver, if any, of rights by the juveniles. It requires that recording procedures be consistent with regulations to be promulgated by the Division of Criminal Justice Services. It applies to interrogations that take place in law enforcement facilities, which, pursuant to Family Court Act § 305.2(4) and section 205.20 of the Uniform Rules of the Family Court, must be in rooms that have been inspected and approved by the Chief Administrator of the Courts for the questioning of youth. All persons in the recording must be identifiable and the speech must be intelligible. As is applicable to other statements by juveniles, the recording would be subject to discovery pursuant to Family Court Act § 331.2. Further, like other factors in juvenile delinquency Huntley hearings, including the presence or absence of parents, location of questioning and the validity of any waiver of rights, the fact and quality of the recording would be among factors comprising the totality of circumstances affecting admissibility of accused juveniles' statements. Failure to record would not, by itself, be a ground for granting a suppression motion. (See NY Legis Memo 299)
 
 Laws of 2020, Ch 261 amended the domestic relations law and family court act
 
Laws of 2020, Ch 261, effective November 11, 2020 amended domestic relations law §  240 (3)(a)(8) and (9), domestic relations law §  252 (1) (h) and (i), family court act § 352.3 (1), family court act §  446 (i) and (j), family court act § 551 (j) and (k), family court act §  656 (j) and (k), family court act §  759 (g), (h) and (i); family court act §  842 (j) and (k). family court act §  1056 (1) (h) and (i), criminal procedure law §  530.12 (1)(a) (7), criminal procedure law § 530.12, (5) (c) and (e), and a new paragraph (f) was added, criminal procedure law § 530.13 (1)(c) and  criminal procedure law §  530.13 (4)(c) and a new paragraph (d) was added,  to provide that an order of protection can be issued that requires that the respondent refrain from controlling any connected devices affecting the home, vehicle or property of the person protected by the order.  "Connected device", means any device, or other physical object that is capable of connecting to the internet, directly or indirectly,  and  that  is  assigned  an internet protocol address or bluetooth address.


​​Laws of 2020, Chapters 55 and 56 (Budget Bills) added Article 5 -c to the Family Court Act, Judgments of Parentage of Children Conceived Through Assisted Reproduction Or Pursuant To Surrogacy Agreements (effective February 15, 2121), and made numerous amendments to the Domestic Relations Law, Family Court Act and other Family Related Laws 

Laws of 2020, Ch 55, §1, enacted April 3, 2020 added an additional factor to the property distribution factors in Domestic Relations Law §236 [B]5] [d]. Factor 14 “any other factor which the court shall expressly find to be just and proper” was renumbered factor 15, and a new “domestic violence” factor 14 was added: (14) whether either party has committed an act  or  acts  of  domestic  violence, as described in subdivision  one  of  section four hundred    fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts.  The amendment takes effect on May 3, 2020 and applies to matrimonial actions commenced on or after the effective date.  See our Recent Legislation page.

Laws Amended by Laws of 2020 Chapters 55 and 56 (Budget Bills)

                                                 SUBPART K (Effective November 1, 2020)
 
  § 9.  Paragraphs (a) and (b) of subdivision 2 of section 842-a of the family court act, was amended and a new paragraph (c) was added.
  
  § 10. Paragraphs (a) and (b) of subdivision 3 of section 842-a of the family court act was amended and a new paragraph (c) was added.
  
  § 11. Subdivisions 6 and 7 of section 842-a of the family court act were amended.
 
  § 12. This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
 
                                                              SUBPART L
 
     Section 1. Subdivision 5 of section 1017 of the family court act, was amended.
 
     § 2. Subdivision (j) of section 1055 of the family court act was amended.
    
     § 3.  Clause (H) of subparagraph (vii) of paragraph 2 of subdivision (d) of section 1089 of the family court act, was amended.
 
   § 4.  Paragraph (g) of subdivision 3 of section 358-a of the social services law was amended.
 
     § 5. This act shall take effect on the same date and in the same manner as a chapter of the laws of 2019 amending the family court act and the social services law relating to notice of indicated reports of child maltreatment and changes of placement in child protective and voluntary foster care placement and review proceedings, as proposed in
   legislative bills numbers S. 6215 and A. 7974, takes effect.
 
 
Laws of 2020, Chapter 56
 
                                  PART L (Effective) February 15, 2021
 
     Section 1. The family court act was amended by adding a new article 5-C:   JUDGMENTS OF PARENTAGE OF CHILDREN CONCEIVED THROUGH ASSISTED REPRODUCTION OR PURSUANT TO SURROGACY AGREEMENTS
 
     § 2. Section 73 of the domestic relations law was REPEALED.
 
     § 3. Section 121 of the domestic relations law was amended.
 
     § 4. Section 122 of the domestic relations law was amended.
 
     § 5. Section 123 of the domestic relations law was amended.
 
     § 6. Section 124 of the domestic relations law was amended.
 
    § 7.  Section 4135 of the public health law, subdivision 1, subdivision 2 and subdivision 3 were amended.
 
     § 8.  Section 4135-b of the public health law, subdivisions 1 and 2 and subdivision 3 were amended.
 
     § 9.  Paragraph (e) of subdivision 1 of section 4138 of the public health law, was amended.
 
     § 10. The article heading of article 8 of the domestic relations law, was amended to read as follows:  GENETIC SURROGATE PARENTING CONTRACTS
 
     § 11. The general business law was amended by adding a new article 44
 
     § 12. The public health law was amended by adding a new article 25-B.
 
    § 13.  Subdivisions 4, 5, 6, 7 and 8 of section 4365 of the public health law were renumbered subdivisions 5, 6, 7, 8 and 9 and a new subdivision 4 was added.
 
    § 14.  Paragraph (a) of subdivision 1 of section 440 of the family court act, was amended.
 
     § 15. Section 516-a of the family court act, subdivisions (b) and (c) and subdivision (d) were amended.
 
     § 16.  Paragraph (b) of subdivision 1 of section 1017 of the family court act was amended.
 
     § 17. Section 4-1.2 of the estates, powers and trusts law, the section heading, the opening    paragraph of subparagraph 1 of paragraph (a), the opening paragraph of
   subparagraph 2 of paragraph (a) and the opening paragraph of subparagraph 3 of paragraph (a), subparagraph 2 of paragraph (a), clause (A) of subparagraph 2 of paragraph (a, and clause (C) of subparagraph 2 of paragraph (a) and paragraph (b) were amended.
 
    § 18. Subdivision 1, paragraph g of subdivision 2, subdivision 3, and subdivision 4 of section 111-c of the social services law, subdivision 1, paragraph g of subdivision    2, subdivision 3, and subdivision 4 were      amended.
 
    § 19. Section 111-k of the social services law, paragraphs (a) and (b) of subdivision 1 was amended.
 
     § 20. Subdivisions 1 and 2 of section 372-c of the social services Law were amended.
 
     § 21. Subdivision (a) of section 439 of the family court act, was amended.
 
   § 22. Subparagraph (D) of paragraph 17 of subsection (a) of section 1113 of the insurance law was amended.
 
   § 23. Paragraph 32 of subsection (a) of section 1113 of the insurance law, was renumbered    paragraph 33 and a new paragraph 32 was added.
 
     § 24. Subsection (a) of section 2105 of the insurance law, was amended.
 
     § 25. Subsection (b) of section 4101 of the insurance law, was amended.
  
     § 26.  Group A of table one as contained in paragraph 1 of subsection (a) of section 4103 of the insurance law, was amended.
 
     § 27. Group C of table three as contained in subsection (b) of section    4107 of the insurance law, was amended.
 
     § 28. Section 4-1.3 of the estates, powers and trust law was amended.
 
     § 29. This act shall take effect February 15, 2021, provided, however, that the amendments to subdivision (a) of section 439 of the family court act made by section twenty-one of this act shall not affect the    expiration of such subdivision and shall be deemed to expire therewith.    Effective immediately, the addition, amendment and/or repeal of any rule    or regulation necessary for the implementation of this act on its effect-   tive date are authorized to be made and completed on or before such   effective date.
 
                                                Part R (Effective January 1, 2022)
 
     § 10. Section 651-a of the family court act, as amended by chapter 12
   of the laws of 1996, was amended.
 
     § 11. This act shall take effect immediately; provided, however that sections one, three, four, five, six, seven, eight, nine and ten of this act shall take effect January 1, 2022.  Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to
   be made and completed by the office of children and family services on or before such effective date.

Laws of 2020, Ch 55, §1, enacted April 3, 2020 added an additional factor to the property distribution factors in Domestic Relations Law §236 [B]5] [d]. Factor 14 “any other factor which the court shall expressly find to be just and proper” was renumbered factor 15, and a new “domestic violence” factor 14 was added: (14) whether either party has committed an act  or  acts  of  domestic  violence, as described in subdivision  one  of  section four hundred    fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts.  The amendment takes effect on May 3, 2020 and applies to matrimonial actions commenced on or after the effective date. 
​Recent Legislation and Court Rules
 On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000  to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000  to $192,000.  In addition,  as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. For Chart & Forms seehttps://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf)  and http://ww2.nycourts.gov/divorce/legislationandcourtrules.shtml​
​
Recent Legislation and Court Rules
          Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section 358-a  
             Laws of 2019, Ch 732[1] amended Family Court Act §§1055 and 1089  as well as of the Social Services Law section 358-a, to require an agency with which a child has been placed, either voluntarily or as a result of an abuse or neglect finding, or to whom guardianship and custody has been transferred as a result of the child being freed for adoption, to report to the attorney for the child not later than ten days in advance of any change in the child's placement status and not later than the next business day in any case in which an emergency placement change has been made. According to the memorandum in support of the legislation, first, it requires a report within five days of the date that any report of abuse or maltreatment is found to be indicated. Indicated reports include those naming the child and, where the subjects of the reports involve the person or persons caring for the child, reports naming other children in the home.  It contains an important proviso that such reports notify the recipients that the information shall be kept confidential, shall be used only in connection with the child protective, foster care or related proceedings under the Family Court Act and may not be re-disclosed except as necessary for suchproceeding or proceedings and as authorized by law. Second, recognizing that fairness also dictates that such notifications be made to the attorneys for all parties, not simply the attorneys for the children, the measure requires that, except in cases involving children freed for adoption, both notices of changes in placement and indicated child maltreatment reports be conveyed to attorneys for the birth parents.
 
      Family Court Act §1017 was amended by adding a new subdivision 5 to read as follows:
 
     5. In any case in which an order has  been  issued  pursuant  to  this
   article  remanding or placing a child in the custody of the local social
   services district, the social services  official  or  authorized  agency
   charged  with  custody or care of the child shall report any anticipated
   change in placement to the attorneys for the parties  and  the  attorney
   for  the  child not later than ten days prior to such change in any case
   in which the child is moved from the foster home or program  into  which
   he  or  she  has  been placed or in which the foster parents move out of
   state with the child; provided, however, that where an immediate  change
   of  placement  on  an  emergency  basis is required, the report shall be
   transmitted no later than the next business day  after  such  change  in
   placement  has  been  made.  The  social services official or authorized
   agency shall also submit a report to the attorneys for the  parties  and
   the attorney for the child or include in the placement change report any
   indicated  report of child abuse or maltreatment concerning the child or
   (if a person or persons caring for the child is or are  the  subject  of
   the report) another child in the same home within five days of the indi-
   cation  of  the report. The official or agency may protect the confiden-
   tiality of identifying or address information regarding  the  foster  or
   prospective  adoptive  parents.   Reports regarding indicated reports of
   child abuse or maltreatment provided pursuant to this subdivision  shall
   include  a  statement  advising  recipients that the information in such
   report of child abuse or maltreatment shall be kept confidential,  shall
   be  used  only  in  connection  with  a proceeding under this article or
   related proceedings under this act and may not be redisclosed except  as
   necessary  for  such proceeding or proceedings and as authorized by law.
   Reports under this paragraph  may  be  transmitted  by  any  appropriate
   means,  including,  but not limited to, by electronic means or placement
   on the record during proceedings in family court.[2]
 
 
     Family Court Act, §1055 (b)(E) was repealed. [3]
 
 
     Family Court Act § 1055 was amended by adding a  new    subdivision (j) to read as follows:
 
     (j)  In  any  case  in which an order has been issued pursuant to this
   section placing a child in the custody or care of  the  commissioner  of
   social  services,  the  social  services  official  or authorized agency
   charged with custody of the child shall report any anticipated change in
   placement to the attorneys for the parties  and  the  attorney  for  the
   child  not later than ten days prior to such change in any case in which
   the child is moved from the foster home or program into which he or  she
   has  been  placed  or in which the foster parents move out of state with
   the child; provided, however, that where an immediate change  of  place-
   ment  on an emergency basis is required, the report shall be transmitted
   no later than the next business day after such change in  placement  has
   been  made. The social services official or authorized agency shall also
   submit a report to the attorneys for the parties and  the  attorney  for
   the child or include in the placement change report any indicated report
   of  child  abuse or maltreatment concerning the child or (if a person or
   persons caring for the child is or are the subject of the report) anoth-
   er child in the same home within five days  of  the  indication  of  the
   report.  The official or agency may protect the confidentiality of iden-
   tifying or address information regarding the foster or prospective adop-
   tive parents. Reports regarding indicated  reports  of  child  abuse  or
   maltreatment  provided  pursuant  to  this  subdivision  shall include a
   statement advising recipients that the information  in  such  report  of
   child  abuse  or  maltreatment shall be kept confidential, shall be used
   only in connection with a  proceeding  under  this  article  or  related
   proceedings  under  this act and may not be redisclosed except as neces-
   sary for such proceeding  or  proceedings  and  as  authorized  by  law.
   Reports  under  this  paragraph  may  be  transmitted by any appropriate
   means, including, but not limited to, by electronic means  or  placement
   on the record during proceedings in family court. [4]
 
    Family Court Act 1089 (d) 2 (vii) was amended by adding a new  clause  (H)  to
   read as follows:
 
     (H) a direction that the social services official or authorized agency
   charged  with care and custody or guardianship and custody of the child,
   as applicable, report any anticipated change in placement to the  attor-
   neys  for  the parties and the attorney for the child not later than ten
   days prior to such change in any case in which the child is  moved  from
   the  foster  home  or program into which he or she has been placed or in
   which the foster parents move out of state  with  the  child;  provided,
   however,  that  where  an  immediate change of placement on an emergency
   basis is required, the report shall be transmitted  no  later  than  the
   next  business  day  after  such  change in placement has been made. The
   social services official or authorized agency shall also submit a report
   to the attorneys for the parties and  the  attorney  for  the  child  or
   include  in  the  placement  change report any indicated report of child
   abuse or maltreatment concerning the child or (if a  person  or  persons
   caring  for the child is or are the subject of the report) another child
   in the same home within five days of the indication of the  report.  The
   official  or  agency  may  protect the confidentiality of identifying or
   address  information  regarding  the  foster  or  prospective   adoptive
   parents. Reports under this paragraph shall not be sent to attorneys for
   birth  parents  whose  parental  rights have been terminated or who have
   surrendered their child or children. Reports regarding indicated reports
   of child abuse or maltreatment provided  pursuant  to  this  subdivision                                      
   shall  include  a  statement advising recipients that the information in
   such report of child abuse or maltreatment shall be  kept  confidential,
   shall be used only in connection with a proceeding under this article or
   related  proceedings under this act and may not be redisclosed except as
   necessary for such proceeding or proceedings and as authorized  by  law.
   Reports under this paragraph may be transmitted by any appropriate means
   including,  but  not limited to, by electronic means or placement on the
   record during proceedings in family court; and [5]
 
 
    Social Services Law  §358-a, subd. 3 was  amended by adding a new paragraph (g) to read as follows:
 
     (g)  In  any  case  in which an order has been issued pursuant to this
   section  approving  a  foster  care  placement  instrument,  the  social
   services  official  or authorized agency charged with custody or care of
   the child shall report any anticipated change in placement to the attor-
   neys for the parties and the attorney for the child not later  than  ten
   days  prior  to such change in any case in which the child is moved from
   the foster home or program into which he or she has been  placed  or  in
   which  the  foster  parents  move out of state with the child; provided,
   however, that where an immediate change of  placement  on  an  emergency
   basis  is  required,  the  report shall be transmitted no later than the
   next business day after such change in placement has  been  made.    The
   social services official or authorized agency shall also submit a report
   to  the  attorneys  for  the  parties  and the attorney for the child or
   include in the placement change report any  indicated  report  of  child
   abuse  or  maltreatment  concerning the child or (if a person or persons
   caring for the child is or are the subject of the report) another  child
   in  the  same home within five days of the indication of the report. The
   official or agency may protect the  confidentiality  of  identifying  or
   address   information  regarding  the  foster  or  prospective  adoptive
   parents.    Reports  regarding  indicated  reports  of  child  abuse  or
   maltreatment  provided  pursuant  to  this  subdivision  shall include a
   statement advising recipients that the information  in  such  report  of
   child  abuse  or  maltreatment shall be kept confidential, shall be used
   only in connection with a  proceeding  under  this  section  or  related
   proceedings under the family court act and may not be redisclosed except
   as  necessary  for  such  proceeding or proceedings and as authorized by
   law.  Reports under this paragraph may be transmitted by any appropriate
   means including, but not limited to, by electronic means or placement on
   the record during proceedings in family court. [6]
 
 
 
 
Laws of 2019, Ch 716, enacted and effective December 20, 2019, amended Domestic Relations Law and the Civil Rights Law.  
             Domestic Relations Law section 15 was amended to amend the
'Notice to Applicant', which appears on every application for a marriage license, to include language that informs those seeking a license that either or both spouses may elect to change their middle name to his or her current last name, any former last name he or she has had, or the last name of the other spouse. Domestic Relations Law section 14-a was amended to include the option of changing a middle name on the marriage license. Civil Rights Law section 65 was amended to provide that any person may elect to resume the use of a former middle name upon divorce or annulment, and that the state shall not impose a fee to change the middle name on a state identifying document due to a change in marital status. The purpose of the amendments is to allow  one or both parties to a marriage to elect to change their middle name on their marriage license. According to the memorandum in support of the legislation, many women and men are opting to change their last name upon marriage but want to keep their former last name in some capacity.  One popular way to accomplish this is to keep the former last name as a new or second middle name. Many states allow for such a change to occur with ease on the marriage license, but New York did not.
 
 
             Domestic Relations Law § 15, subdiv.1 (b) was amended to read as follows:
 
     (b) Every application for a marriage license shall contain a statement
   to the following effect:
                              NOTICE TO APPLICANTS
     (1) Every person has the right to adopt any name by which  he  or  she
   wishes  to  be  known simply by using that name consistently and without
   intent to defraud.
     (2) A person's last name (surname) does not automatically change  upon
   marriage,  and neither party to the marriage must change his or her last
   name. Parties to a marriage need not have the same last name.
     (3) One or both parties to a marriage may elect to change the  surname
   by  which  he  or  she wishes to be known after the solemnization of the
   marriage by entering the new name in the space below. Such  entry  shall
   consist of one of the following surnames:
     (i) the surname of the other spouse; or
     (ii) any former surname of either spouse; or
     (iii)  a  name combining into a single surname all or a segment of the
   premarriage surname or any former surname of each spouse; or
     (iv) a combination name separated by a hyphen, provided that each part
   of such combination surname is the premarriage surname,  or  any  former
   surname, of each of the spouses.
     (4)  One  or both parties to a marriage may elect to change the middle
   name by which he or she wishes to be known after  the  solemnization  of
   the  marriage  by  entering  the new name in the space below. Such entry
   shall consist of one of the following options:
     (i) the current surname of the spouse electing to change  his  or  her
   name; or
     (ii)  any  former  surname of the spouse electing to change his or her
   name; or
     (iii) the surname of the other spouse.
     (5) The use of this option will have the effect of providing a  record
   of  the  change  of  name.  The marriage certificate, containing the new
   name, if any, constitutes proof that the use of the  new  name,  or  the
   retention of the former name, is lawful.
     (6)  Neither the use of, nor the failure to use, this option of
   selecting a new surname or middle name  by  means  of  this  application
   abrogates  the  right  of  each person to adopt a different name through
   usage at some future date.
                     .....................................
                     (Optional -- Enter new surname above)[7]
 
 
            
 
Laws of 2019, Ch 712 enacted and effective on December  20,  2019, amended Domestic Relations Law §11-a, subd. 1 a  to allow the New York City clerk to designate additional staff members as he or she deems necessary to officiate marriages. 
     Domestic Relations Law §11-a, subd. 1 a was amended to read as follows:
 
 
a.  The city clerk of a city of the first class of  over  one  million
inhabitants  may  designate  in writing any or all of the deputy city clerks and from among the permanent members of the city clerk's staff as many  staff  members  as  the city  clerk deems necessary to perform marriage ceremonies, which designation shall be in writing and be filed  in  the  office  of  such  city clerk.    The  day  of such filing shall be endorsed on the designation. Any such designation shall be and remain in effect for six  months  from the filing thereof.
 
 
 
  Laws of 2019, Ch 663, enacted on  December 12, 2019, effective 90 days after it becomes a law, amended Family Court Act § 812, subd. 5, and Criminal Procedure Law § 530.11.
             Family Court Act § 812 and Criminal Procedure Law § 530.11, include protections for alleged victims of domestic violence. The statutes placed responsibility upon law enforcement, prosecutors and the courts to ensure by written notice that victims are made aware of their rights, of the expectations they may have to obtain assistance from both the civil and criminal justice systems and of the remedies and resources available to them. The notice must be in writing in both English and Spanish and must recite the statutory language verbatim. The required language in the notice was overly complex. Family Court Act § 812 and Criminal Procedure Law § 530.11 were amended  substantially simplify the language contained in the notice while, at the same time, expanding the breadth of information it provides. The measure also provides that the notice be made available, at minimum, in plain English, Spanish, Russian and Chinese.
 
             Family Court Act 812, subd. 5 provides:
 
 
     5. Notice. Every police officer, peace officer  or  district  attorney
   investigating  a  family  offense  under  this  article shall advise the
   victim of the availability of a shelter or other services in the  commu-
   nity,  and shall immediately give the victim written notice of the legal
   rights and remedies available to a victim of a family offense under  the
   relevant  provisions  of  this  act and the criminal procedure law. Such notice        shall  be
   available,  at  minimum,  in  plain  English, Spanish, Chinese and
   Russian and, if necessary, shall be delivered orally and  shall  include
   but  not be limited to the information contained in the following state-
   ment:
    
             "Are you the victim
   of domestic violence? If you need help now, you can  call  911  for  the
   police  to  come  to you. You can also call a domestic violence hotline.
   You can have a confidential talk with an advocate at the  hotline  about
   help  you  can get in your community including: where you can get treat-
   ment for injuries, where you can get shelter, where you can get support,
   and what you can do to be safe. The New York State  24-hour  Domestic  &
   Sexual Violence Hotline number is (insert the statewide multilingual 800
   number).  They  can  give  you information in many languages. If you are
   deaf or hard of hearing, call 711.  This is what the police can do:
     They can help you and your children find a safe place such as a family
   or friend's house or a shelter in your community.
     You can ask the officer to take you or help you and your children  get
   to a safe place in your community.
     They can help connect you to a local domestic violence program.
     They can help you get to a hospital or clinic for medical care.
     They can help you get your personal belongings.
     They  must  complete  a report discussing the incident. They will give
   you a copy of this police report before they  leave  the  scene.  It  is
   free.
     They  may, and sometimes must, arrest the person who harmed you if you
   are the victim of a crime. The person arrested could be released at  any
   time, so it is important to plan for your safety.
     If  you  have  been abused or threatened, this is what you can ask the
   police or district attorney to do:
     File a criminal complaint against the person who harmed you.
     Ask the criminal court to issue an order of  protection  for  you  and
   your  child  if  the  district  attorney  files a criminal case with the
   court.
     Give you information about filing a family offense  petition  in  your
   local family court.
     You  also  have  the  right  to  ask  the family court for an order of
   protection for you and your children.
     This is what you can ask the family court to do:
     To have your family offense petition filed the  same  day  you  go  to
   court.
     To  have your request heard in court the same day you file or the next
   day court is open.
     Only a judge can issue an order of protection. The judge does that  as
   part  of  a  criminal or family court case against the person who harmed
 
   you. An order of protection in family court or  in  criminal  court  can
   say:
     That  the  other  person  have no contact or communication with you by
   mail, phone, computer or through other people.
     That the other person stay away from you and your children, your home,
   job or school.
     That the other person not  assault,  harass,  threaten,  strangle,  or
   commit another family offense against you or your children.
     That  the  other  person turn in their firearms and firearms licenses,
   and not get any more firearms.
     That you have temporary custody of your children.
     That the other person pay temporary child support.
     That the other person not harm your pets or service animals.
     If the family court is closed because it is night,  a  weekend,  or  a
   holiday,  you  can  go  to  a  criminal  court  to  ask  for an order of
   protection.
     If you do not speak English or cannot speak it well, you can  ask  the
   police,  the  district  attorney, or the criminal or family court to get
   you an interpreter who speaks your language. The  interpreter  can  help
   you explain what happened.
     You  can  get  the forms you need to ask for an order of protection at
   your local family court (insert addresses and  contact  information  for
   courts).  You can also get them online: www.NYCourts.gov/forms.
     You do not need a lawyer to ask for an order of protection.
     You  have  a  right to get a lawyer in the family court. If the family
   court finds that you cannot afford to pay for a lawyer, it must get  you
   one for free.
     If you file a complaint or family court petition, you will be asked to
   swear to its truthfulness because it is a crime to file a legal document
   that you know is false."
 
     The  division  of  criminal  justice services in consultation with the
   state office for the prevention of domestic violence shall  prepare  the
   form  of  such  written  notice  consistent  with the provisions of this
   section and distribute copies thereof to the appropriate law enforcement
   officials pursuant to subdivision nine of section eight  hundred  forty-
   one  of  the executive law. Additionally, copies of such notice shall be
   provided to the chief administrator of the courts to be  distributed  to
   victims of family offenses through the family court at such time as such
   persons  first  come  before  the  court  and to the state department of
   health for distribution to all hospitals defined under  article  twenty-
   eight  of  the  public  health law. No cause of action for damages shall
   arise in favor of any person by reason of any failure to comply with the
   provisions of this subdivision except upon a showing of gross negligence
   or willful misconduct. [8]
 
 
Laws of 2019, Ch 627, enacted December 12, 2019 and effective immediately amended CPLR 3215 (b) to outline the procedure for an inquest on a default judgment. 
             A defendant who defaults in appearing concedes only liability. Therefore, the defaulting defendant may still contest damages at an inquest. In Rokina Opt. Co. v Camera King, , 63 N.Y.2d 728, 730 supra, the Court of Appeals held that "judgment against a defaulting party may be entered only upon application to the court along with notice to the defaulting party and 'a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages'."
 
             As amended, CPLR 3215 (b) provides that a party entitled to judgment may be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or affirmations as proof of damages. However, if the defaulting party gives reasonable notice that it will appear  at  the  inquest, the party seeking damages may submit any  proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or, after  giving  reasonable  notice  that  it  will  do  so, by written sworn statements of the witnesses. If the party seeking judgment gives such notice and submits proof by written sworn statements, he or she must make all of those witnesses available for cross-examination. 
 
 
             CRPL 3215(b) was amended to read as follows:
 
     (b)  Procedure before court.  The court, with or without a jury, may
   make an assessment or take an account or proof, or may direct a refer-
   ence.  The party entitled to judgment may be permitted to submit, in
   addition to the proof required by subdivision (f) of this section, prop-
   erly executed affidavits or affirmations as proof of damages, provided
   that if the defaulting party gives reasonable notice that it will appear
   at the inquest, the party seeking damages may submit any such proof by
   oral testimony of the witnesses in open court or, after giving reason-
   able notice that it will do so, by written sworn statements of the
   witnesses, but shall make all such witnesses available for cross-exami-
   nation.  When a reference is directed, the court may direct that the
   report be returned to it for further action or, except where otherwise
   prescribed by law, that judgment be entered by the clerk in accordance
   with the report without any further application. Except in a matrimonial
   action, no finding of fact in writing shall be necessary to the entry of
   a judgment on default. The judgment shall not exceed in amount or differ
   in type from that demanded in the complaint or stated in the notice
   served pursuant to subdivision (b) of rule 305 of this chapter.
  
Laws of 2019, Ch 623, enacted December 12, 2019 amended the Family Court Act § 657(c) to include non-parents with lawful orders of custody as persons who may make medical decisions for minors in their care. 
Laws of 2019, Ch 623, amended the Family Court Act § 657(c) to add persons possessing a lawful order of custody as persons who have the right and responsibility, alongside the current provision of those possessing a lawful order of guardianship, to make medical decisions and necessary consents regarding the child in their care. It also amended Public Health Law Section 2504(4) to include non-parents with lawful orders of custody along with parents and guardians as persons whose consent is not needed for the provision of medical, dental, health and hospital services when in the
 
             Family Court Act § 657 (c) provides:
                           
 
     (c) Notwithstanding any other provision of law to the contrary,
   persons possessing a lawful order of guardianship or custody of a child
   shall have the right and responsibility to make decisions, including
   issuing any necessary consents, regarding the child's protection, educa-
   tion, care and control, health and medical needs, and the physical
   custody of the person of the child. Provided, however, that nothing in
   this subdivision shall be construed to limit the ability of a child to
   consent to his or her own medical care as may be otherwise provided by
   law.
 
Laws of 2019, Ch 602, enacted December 6, 2019 amended Family Court Act § 322.4.            
             Family Court Act section 322.2(4) was amended to provide that dismissal of a petition upon issuance of an order of commitment "constitutes a bar to further prosecution of the charge or charges contained in the petition."
 
 
     Family Court Act section 322.2(4), paragraphs (a), (c) and (d) of subdivision 5 and subdivision 6 were amended to read as follows:
 
     4. If the court finds that there is probable cause to believe that the
   respondent committed a misdemeanor, the respondent shall be committed to
   the  custody of the appropriate commissioner for a reasonable period not
   to exceed ninety days. Unless the court specifies that  such  commitment
   shall be in a residential facility, such commissioner having custody may
   arrange  for  treatment in an appropriate facility or program, including
   an outpatient program, in accordance with  subdivision  (e)  of  section
   7.09  or  subdivision (c-1) of section 13.09 respectively, of the mental
   hygiene law. The court shall dismiss the petition on the issuance of the
   order of commitment and such dismissal shall constitute a bar to further
   prosecution of the charge or charges contained in the petition.
 
     (a) If the court finds that there is probable cause  to  believe  that
   the respondent committed a felony, it shall order the respondent commit-
   ted  to  the custody of the commissioner of mental health or the commis-
   sioner of the office for people with developmental disabilities  for  an
   initial  period  not  to  exceed  one  year from the date of such order.
   Unless the court specifies that such commitment shall be in  a  residen-
   tial  facility,  such commissioner having custody may arrange for treat-
   ment  in  an  appropriate  facility  or program, including an outpatient
   program, in accordance with subdivision (e) of section 7.09 or  subdivi-
   sion  (c-1)  of  section  13.09 respectively, of the mental hygiene law.
   Such period may be extended annually upon  further  application  to  the
   court  by  the commissioner having custody or his or her designee.  Such
   application must be made not more than sixty days prior to  the  expira-
   tion  of  such  period  on  forms that have been prescribed by the chief
   administrator of the courts. At that time, the  commissioner  must  give
   written notice of the application to the respondent, the counsel repres-
   enting  the  respondent  and  the  mental  hygiene  legal service if the
   respondent is at a residential facility. Upon receipt of  such  applica-
   tion, the court must conduct a hearing to determine the issue of capaci-
   ty. If, at the conclusion of a hearing conducted pursuant to this subdi-
   vision,  the court finds that the respondent is no longer incapacitated,
   he or she shall be returned to the family court for further  proceedings
   pursuant  to this article. If the court is satisfied that the respondent
   continues to be  incapacitated,  the  court  shall  authorize  continued
   custody  of  the respondent by the commissioner in a facility or program
   for a period not to exceed one year. Such extensions shall not  continue
   beyond  a  reasonable  period of time necessary to determine whether the
   respondent will attain the capacity to proceed to a fact finding hearing
   in the foreseeable future but in no  event  shall  continue  beyond  the
   respondent's  eighteenth  birthday  or,  if  the respondent was at least
   sixteen years of age when the act was committed, beyond the respondent's
   twenty-first birthday.
 
     (c) If the court finds that there is probable cause  to  believe  that
   the  respondent  has  committed a designated felony act, the court shall
   require that treatment be provided in a residential facility within  the
   appropriate  office  of the department of mental hygiene or in an outpa-
   tient facility if the commissioner having custody of the child petitions
   the court pursuant to subdivision seven of this section and  such  court
   approves.
 
     (d)  The  commissioner  shall  review  the condition of the respondent
   within forty-five days after the respondent is committed to the  custody
   of  the commissioner. He or she shall make a second review within ninety
   days after the respondent is committed to his or her custody.  Thereaft-
   er,  he or she shall review the condition of the respondent every ninety
   days.  The respondent and the counsel for the respondent, shall be noti-
   fied of any such review and afforded an opportunity  to  be  heard.  The
   commissioner  having  custody  shall  apply  to  the  court for an order
   dismissing the petition whenever he or she determines that  there  is  a
   substantial probability that the respondent will continue to be incapac-
   itated  for  the foreseeable future. At the time of such application the
   commissioner must give written notice of the application to the respond-
   ent, the presentment agency and the mental hygiene legal service if  the
   respondent  is  at a residential facility. Upon receipt of such applica-
   tion, the court may on its own motion conduct  a  hearing  to  determine
   whether  there  is  substantial  probability  that  the  respondent will
   continue to be incapacitated for the foreseeable  future,  and  it  must
   conduct  such  hearing if a demand therefor is made by the respondent or
   the mental hygiene legal service within ten  days  from  the  date  that
   notice of the application was given to them. The respondent may apply to
   the court for an order of dismissal on the same ground.
 
     6.  Any order pursuant to this section dismissing a petition shall not
   preclude an application for voluntary or involuntary care and  treatment
   in  a facility or program of the appropriate office of the department of
   mental hygiene pursuant to the provisions of  the  mental  hygiene  law.
   Unless  the respondent is admitted pursuant to such an application he or
   she shall be released.[9]
 
 
             Family Court Act § 322.2, subd. 7 was amended to to permit treatment
services to be provided on an outpatient basis for youth deemed by the
Family Court to lack capacity upon application by the Commissioner of
Mental Health or of People With Developmental Disabilities and with
approval of the Court.
 
   Family Court Act section 322.2, subdivision 7 was amended to read as follows 
 
7. If the commissioner having custody of a child committed to a  resi-
   dential facility pursuant to subdivision four or paragraph (a) of subdi-
   vision  five  of this section determines at any time that such child may
   be more appropriately treated in a non-residential  facility  or  on  an
   outpatient  basis,  he  or  she  may  arrange for such treatment. If the
   commissioner having custody of a child committed to a residential facil-
   ity pursuant to paragraph (c) of subdivision five of this section deter-
   mines at any time that such child may be more appropriately treated in a
   non-residential facility or on an outpatient basis, he or she may  peti-
   tion  the family court for a hearing. If the court finds after a hearing
   that treatment in a non-residential facility or on an  outpatient  basis
   would  be  more  appropriate  for such child, the court shall modify its
   order of commitment to direct the commissioner  to  transfer
    the child to a non-residential facility or arrange outpatient
   treatment. Application for  a hearing  to  determine  whether  any
   child  committed  to  a  residential facility under subdivisions four or
   five of this section may be more appropriately treated in a non-residen-
   tial facility or on an outpatient basis may be made by the respondent. [10]
 
 
   
Laws of 2019, Ch 602, enacted December 6, 2019 amended  Family Court Act § 322.1
 
    Family Court Act § 322.1 was amended to remove the requirement that examinations be conducted in a hospital setting in order to provide that, where a juvenile respondent is in custody, the examination may be conducted where the juvenile is in custody 'so long as no reasonable outpatient setting is available." This is consistent with the decision of the Family Court in Matter of Justin L., 56 Misc.3d 1167 (Fam. CL, Kings Co., 2017), in which the court's Mental Health Service Clinic was ordered to send evaluators to the juvenile detention center since Bellevue Hospital maintained that its clinicians were not trained to perform capacity examinations for juveniles.
 
 Family Court Act § 322.1, subd.1 was amended to read as follows:
 
     1. At any proceeding under this article, the court must issue an order
   that the respondent be examined as provided herein when  it  is  of  the
   opinion  that  the  respondent  may be an incapacitated person. Notwith-
   standing the provisions of this or any other law, the court  may  direct
   that the examination be conducted on an outpatient basis.  If the
   respondent  is in custody at the time the court issues an order of
   examination, the examination may be conducted at  the  place  where  the
   respondent is being held in custody so long as no reasonable alternative
   outpatient  setting  is available. The court shall order that two quali-
   fied psychiatric examiners as defined in subdivision  seven  of  section
   730.10 of the criminal procedure law examine the respondent to determine
   if  he or she may be diagnosed as a person with mental illness or an       intellectual or developmental disability.[11]
 
 
Laws of 2019, Ch 529 amended CPLR 4503 (a) (2) (A), approved and effective November 20, 2019 to add clause (iii) and to add lifetime trustee to (a)(2)(B). 
CPLR § 4503 provides as follows:
§ 4503. Attorney
 (a) 1. Confidential communication privileged. Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof. Evidence of any such communication obtained by any such person, and evidence resulting therefrom, shall not be disclosed by any state, municipal or local governmental agency or by the legislature or any committee or body thereof. The relationship of an attorney and client shall exist between a professional service corporation organized under article fifteen of the business corporation law to practice as an attorney and counselor-at-law and the clients to whom it renders legal services.
 
2. Personal representatives. (A) For purposes of the attorney-client privilege, if the client is a personal representative and the attorney represents the personal representative in that capacity, in the absence of an agreement between the attorney and the personal representative to the contrary:
(i) No beneficiary of the estate is, or shall be treated as, the client of the attorney solely by reason of his or her status as beneficiary; 
(ii) The existence of a fiduciary relationship between the personal representative and a beneficiary of the estate does not by itself constitute or give rise to any waiver of the privilege for confidential communications made in the course of professional employment between the attorney or his or her employee and the personal representative who is the client; and
(iii) The fiduciary's testimony that he or she has relied on the attorney's advice shall not by itself constitute such a waiver.
 
(B) For purposes of this paragraph, “personal representative” shall mean (i) the administrator, administrator c.t.a., ancillary administrator, executor, preliminary executor, temporary administrator, lifetime trustee or trustee to whom letters have been issued within the meaning of subdivision thirty-four of section one hundred three of the surrogate's court procedure act, and (ii) the guardian of an incapacitated communicant if and to the extent that the order appointing such guardian under subdivision (c) of section 81.16 of the mental hygiene law or any subsequent order of any court expressly provides that the guardian is to be the personal representative of the incapacitated communicant for purposes of this section; “beneficiary” shall have the meaning set forth in subdivision eight of section one hundred three of the surrogate's court procedure act and “estate” shall have the meaning set forth in subdivision nineteen of section one hundred three of the surrogate's court procedure act.
 
(b) Wills and revocable trusts. In any action involving the probate, validity or construction of a will or, after the grantor's death, a revocable trust, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will, revocable trust, or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent.


[1]      § 6. This act shall take effect immediately, provided that sections
   one, three, four and five of this act shall take effect on the one
   hundred twentieth day after it shall have become a law; provided, howev-
   er, that section two of this act shall be deemed to have taken effect on
   the same date as section 1 of chapter 342 of  the  laws  of  2010,  took
   effect.  Effective immediately, the addition, amendment and/or repeal of
   any rule or regulation necessary for the implementation of this  act  on
   its  effective date are authorized to be made and completed on or before
   such effective date.
    
 

[2] Laws of 2019, Ch 732, §  1. 

[3] Laws of 2019, Ch 732, §  2. 

[4] Laws of 2019, Ch 732, §  3. 

[5] Laws of 2019, Ch 732, §  4. 

[6] Laws of 2019, Ch 732, §  5. 

[7] Laws of 2019, Ch 716, §2

[8]  There was an identical amendment to Criminal Procedure Law § 530.11.

[9] Laws of 2019, Ch 602, §  2. 

[10] Laws of 2019, Ch 602, §  2. 

[11] Laws of 2019, Ch 602, §  1.   
​
Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended Family Court Act § 412(2)(d), Domestic Relations Law § 236[B](5-a) (b)(5) and Domestic Relations Law § 236[B](6)(b)(4) 

Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended the Family Court Act and the Domestic Relations Law to change the biennial date of adjustment of the "income cap" under the maintenance guidelines law to coincide with the biennial adjustment date of the "income cap" under the Child Support Standards Act. Family Court Act § 412(2)(d), Domestic Relations Law § 236B(5-a)(b)(5) and § 236B(6)(b)(4) were amended to fix the date of the biennial adjustment of the temporary, post-divorce and spousal maintenance "income caps" at March 1" rather than January 31', as currently provided. By making the date March 1st rather than January 31st, the adjustment of the maintenance income cap would coincide with the date of adjustment of the child support combined parental income cap, as well as the date of adjustment of the federal poverty income level and self-support reserve.

The maintenance guidelines law which was enacted in 2015 provided that the maintenance income cap would be set initially at $175,000 and would increase pursuant to an adjustment formula keyed to increases in the CPI on January 31, 2016 and every two years thereafter. January 31' was the date set for adjustment of the temporary maintenance income cap under the temporary maintenance law, enacted in 2010, in effect prior to enactment of the maintenance guidelines law. It also was the date that the child support combined income cap pursuant to the Child Support Standards Act would have been adjusted. 

However, effective January 31, 2016, the date of adjustment of the Child Support Combined Income Cap was changed to March 1" rather than January 31' to conform with the date of adjustment of the self-support reserve pursuant
to Social Services Law § 111-I (2)(b). 

The adjustment date of the maintenance income cap was changed so that 
the adjustments in the maintenance and child support income caps all occur at the same time. 

Family Court Act § 412(2)(d) was amended to read as follows: 
(d) "income cap" shall mean up to and including one hundred  eighty-four  thousand  dollars  of  the  payor's  annual  income; provided, however, beginning March  first,  two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes  in  the  consumer  price  index  for  all urban consumers (CPI-U) as published by the United States  department  of  labor  bureau  of  labor statistics for the prior two years multiplied by the then income cap and then  rounded  to  the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 1, effective November 20, 2019)
Domestic Relations Law § 236[B](5-a) (b)(5) was amended to read as follows:
(5) "Income cap" shall mean up to and including one hundred eighty-four  thousand  dollars  of  the  payor's  annual  income; provided, however, beginning March  first,  two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes  in  the  consumer  price  index  for  all urban consumers (CPI-U) as published by the United States  department  of  labor  bureau  of  labor  statistics for the prior two years multiplied by the then income cap and then  rounded  to  the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 2, effective November 20, 2019)
  Domestic Relations Law § 236[B](6)(b)(4) was amended to read as follows:
     (4)  "Income cap" shall mean up to and including one hundred eighty-four  thousand  dollars  of  the  payor's  annual  income;  provided,  however,  beginning  March first, two thousand twenty and every two years thereafter, the income cap  amount shall increase by the sum of the average annual percentage changes in the consumer price  index  for  all  urban  consumers  (CPI-U)  as published  by  the  United  States  department  of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap.  (Laws of 2019, Ch 523, § 3, effective November 20, 2019)

Laws of 2019, Ch 434 enacted October 29, 2019, amended Family Court Act § 
1028-a (i), effective October 29, 2019.
 
  Family Court Act § 1028-a(a)(i) defines who may apply to become a foster parent under the circumstances described in that section. Applicants had been limited to relatives who were related within the third degree of consanguinity to either parent. This class of applicants excluded non-blood relatives, such as step-grandparents and "fictive" kin, who are included in the class of kinship foster parents who may exit foster care and become kinship guardianship with subsidies pursuant to social services law section 458-a thru 458-f. Family Court Act § 1028-a was amended to include to include, as eligible to apply to become foster parents,  all persons who are related to children as described in social services law §458-a (3) (a), (b), or (c)   who meet Family Court Act § 1028-a requirements.
 

Family Court Act § 1028-a provides:

§ 1028-a. Application of a relative to become a foster parent

 (a) Upon the application of a relative to become a foster parent of a child in foster care, the court shall, subject to the provisions of this subdivision, hold a hearing to determine whether the child should be placed with a relative in foster care. Such hearing shall only be held if:
(i) the person is related to the child as described under paragraph (a), (b), or (c) of subdivision three of section four hundred fifty-eight-a of the social services law;
(ii) the child has been temporarily removed under this part, or placed pursuant to section one thousand fifty-five of this article, and placed in non-relative foster care;
(iii) the relative indicates a willingness to become the foster parent for such child and has not refused previously to be considered as a foster parent or custodian of the child, provided, however, that an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal;
(iv) the local social services district has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the office of children and family services; and
(v) the application is brought within six months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than twelve months from the date that the child was removed.
(b) The court shall give due consideration to such application and shall make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child.
(c) After such hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, pursuant to regulations of the office of children and family services, to commence an investigation of the home of the relative within twenty-four hours and thereafter expedite approval or certification of such relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of such relative as a foster parent.

(Added L.2005, c. 671, § 3, eff. March 15, 2006. Amended L.2006, c. 12, § 2, eff. March 15, 2006; L.2019, c. 434, § 1, eff. Oct. 29, 2019.)

Laws of 2019, Ch 491, effective January 15, 2020, amended Domestic Relations Law §112 and Public Health Law 

The public health law was amended by adding a new section, § 4138-e. According to the Assembly Memorandum in support of the legislation the amendment is intended to restore adult adoptees' right to access information that non-adopted persons, including those who "age-out" of foster care, have a legal right to obtain. In New York, an adopted person cannot access his or her original birth certificate unless the adopted person goes through a judicial proceeding and, even then, the outcome does not guarantee that access will be granted. This amendment  will allow adult adoptees, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person (living) or lawful representatives of such deceased adopted person's direct line descendants, to obtain a certified copy of the adopted person's original long form birth certificate. Adoptees will continue, under existing law, to be able to secure "non-identifying" information which may include, but not be limited to, their religious and ethnic heritage and medical history information that may be necessary for preventive health care and the treatment of illnesses linked to family history and genetics. To whatever extent "non-identifying" information may be unavailable, the restoration of the civil right to one's own original birth certificate will restore equal opportunity for seeking
such information.
 

Public Health Law § 4138-e  provides that an adopted person eighteen years of age, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person, or lawful representatives of such deceased adopted person's direct line descendants can obtain a certified copy of the adopted person's original long form birth certificate, from the commissioner or a local registrar, in the same manner as such certificates are available to persons born in the state of New York who were not adopted. It also requires the commissioner to provide the adopted person or other authorized person with the background information about the adopted child and the adopted child's birth parents sent to the commissioner pursuant to subdivision 1 of § 114 of the domestic relations law.
 
In addition, in the event that the commissioner does not have the
original birth certificate of an adopted person, it requires courts and other agencies that have records containing the information that would have appeared on the adopted person's original long form birth certificate to provide such information, including all identifying information about the adopted person's birth parents, to the adult
adopted person or other authorized person upon a simple written request therefor that includes proof of identity. (Section 1)

 
Public Health Law § 4138, subd 4 was amended to authorize the commissioner to make microfilm or other suitable copies of an original certificate of birth in accordance with section 4138-e and to authorize the commissioner to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 2)

Public health law § 4138 subd. 5 was amended to state that a certified copy of the original long form certificate of birth of such a person shall be issued to an adult adopted person in accordance with § 4138-e of the public health law. (Section 3)
 
Public Health Law § 4138 subd. 3 (a) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 4)
 
Public Health Law § 4138 subd. 3 (b) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 5)
 
Public Health Law § 4138 subd. 8 was added of the public health law to authorize adopted persons eighteen years of age or older, or the birth parent (s), to submit a change of name and/or address to be attached to the original birth certificate of the adopted person. (Section 6)  

Public Health Law § 4138-d was amended to remove the provision that allows an adoption agency to restrict access to non-identifying information that is not in the best interest of the adoptee, the biological sibling or the birth parent(s). (Section 7)
 
Public Health Law § 4104 was amended to include additional provisions under vital statistics that would be applicable to the city of New York. (Section 8)
 
Domestic Relations Law § 114, subd. 1 was amended to require that any order of adoption direct that the information to be provided to the adoptive parents about the child and the child's birth parents shall include the child's and birthparents' information at the time of surrender and, in addition, that the information provided to the
adoptive parents also be provided to the commissioner of health. (Section 9)
 
The effective date of the amendments is January 15, 2020. (Section 10)

 
Laws of 2019, Ch 258, effective September 16, 2019
     
Laws of 2019, Ch 258, enacted September 16, 2019 amended Domestic Relations Law §110 by adding a new closing paragraph which provides: A petition to adopt, where the petitioner's parentage is legally-recognized under New York State law, shall not be denied solely on the basis that the petitioner's parentage is already legally-recognized.
 
 
According to the Assembly Memorandum in support of the Legislation, under existing New York law, judges already have the ability to grant an adoption of a child by a petitioner whose parentage is already legally-recognized. These adoptions are routinely granted and can be very important for many same-sex couples and their children. While the spouse of a woman who gives birth to a child is presumed to be the child's parent, same-sex couples find themselves in a legally precarious position when traveling in places that do not fully respect the rights of non-biological parents even when they are married. A New York adoption would be honored in another jurisdiction, and afforded full faith and credit. This gives children the security that both their parents will be legally recognized wherever family members may be.
 


Laws of 2019, Ch 313 effective September 13, 2019

Laws of 2019, Ch 313 enacted September 13, 2019 amended the Domestic Relations Law (DRL) and the Family Court Act (FCA) to specify that the incarceration of the child support obligor is not to be treated as voluntary unemployment in either the establishment or modification of a support order unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. The amendments provide that incarceration shall not be a bar to establish a substantial change in circumstances, barring these exceptions. (amendments are underlined below)
 
Domestic Relations Law § 240 (1-b) (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations. The amendment reads as follows:
  
     (v)  an amount imputed as income based upon the parent's former
   resources or income, if the court determines that a parent has reduced
   resources or income in order to reduce or avoid the parent's obligation
   for child support; provided that incarceration shall not be considered
   voluntary unemployment, unless such incarceration is the result of non-
   payment of a child support order, or an offense against the custodial
   parent or child who is the subject of the order or judgment;  

Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations.
 
      Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to read as follows:

(i) The court may modify an order of child support, including an order
   incorporating without merging an agreement or stipulation of the
   parties, upon a showing of a substantial change in circumstances.
   Incarceration shall not be considered voluntary unemployment and shall
   not be a bar to finding a substantial change in circumstances provided
   such incarceration is not the result of non-payment of a child support
   order, or an offense against the custodial parent or child who is the
   subject of the order or judgment.
  

Family Court Act § 413 subd. 1 (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations.

Family Court Act § 413 subd. 1 (b) (5) (v) was amended to read as follows:

     (v) an amount imputed as income based upon the parent’s former
   resources or income, if the court determines that a parent has reduced
   resources or income in order to reduce or avoid the parent’s obligation
   for child support; provided that incarceration shall not be considered
   voluntary unemployment, unless such incarceration is the result of non-
   payment of a child support order, or an offense against the custodial
   parent or child who is the subject of the order or judgment; 

Family Court Act § 451 subd. 3 (a) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations.

Family Court Act § 451 subd. 3 (a) was amended to read as follows:

     (a) The court may modify an order of child support, including an order
   incorporating without merging an agreement or stipulation of the
   parties, upon a showing of a substantial change in circumstances.
   Incarceration shall not be considered voluntary unemployment and shall
   not be a bar to finding a substantial change in circumstances provided
   such incarceration is not the result of non-payment of a child support
   order, or an offense against the custodial parent or child who is the
   subject of the order or judgment. 


Social Services Law § 111-g, subd. 3 (a) was amended to comply with the mandatory provision of the federal Bipartisan Budget Act of 2018 to increase from $25 to $35 the annual service fee for providing child support services in the case of an individual who has never received Title IV-A assistance. In addition, the Social Services Law was amended to comply with the federal requirement to increase from $500 to $550 the amount of support that the State must collect and disburse to the family prior to imposing the fee for each federal fiscal year. 

Social Services Law § 111-g, subd. 3 (a) was amended to read as follows:

    (a)  A person who is receiving child support services pursuant to this
   section who has never received assistance pursuant to title IV-A of the
   federal social security act shall be subject to an annual service fee of
   thirty-five dollars for each child support case if at least five hundred fifty dollars of                  support has been collected in the    federal fiscal year. Where a custodial parent has children with different noncustodial parents, the order payable by each noncustodial parent    shall be a separate child support case for the purpose of imposing an
   annual service fee.  The fee shall be deducted from child support
   payments received on behalf of the individual receiving services. 

According to the Assembly Memorandum in support of the Legislation, the bill implements federal requirements and provides that incarceration shall not be a bar to establish a substantial change in circumstance, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Because incarceration cannot be treated as voluntary unemployment (except in the enumerated circumstances), support awards for incarcerated individuals will not be imputed from pre-incarceration earnings. Instead, modification would be based on the incarcerated individual's current financial circumstances. If there is a basis for a modification, the child support guidelines would be applied to the incarcerated individual's current income and assets to determine his or her new support obligation. While incarceration itself would not be grounds for a modification, any significant reduction in the noncustodial parent's ability to pay support could be the basis of a downward modification (except in the enumerated circumstances).

  Domestic Relations Law §240 (1-c) (b) was amended by Laws of 2019, Ch 182 to add to subdivision (B) which provides that 
There  is  a rebuttable presumption that it is not in the best interests of the child to   be  placed  in  the custody of or have unsupervised visits with a person who has been convicted of a felony sex  offense,  as  defined  in section  70.80  of  the penal law, or convicted of an offense in another jurisdiction which, if committed in this state, would constitute such  a felony  sex  offense, where the victim of such offense was the child who is the subject of the proceeding.  ►Laws of 2019, Ch 182, §1, effective September 22, 2019.

Family Court Act §651 (a) was amended by Laws of 2019, Ch 182, read as follows:
When referred from the supreme court or county court to the family court, the family court has jurisdiction to determine, in accordance with subdivisions one and one-c of section two hundred forty of the domestic relations law and with the same powers possessed by the supreme court in addition to its own powers, habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors.  Laws of 2019, Ch 182, §2, effective September 22, 2019.
 


Unlawful dissemination or publication of an intimate image added to Family Court Act §812
 
Laws of 2019, Ch 109 added the crime of unlawful dissemination or publication of an intimate image to the Penal Law as § 245.15 effective September 21, 2019. It amended Family Court Act 812 to include it in the list of crimes that constitute a family offense and added it to Criminal Procedure Law 530. 11 The Civil Rights Law was amended to add new cause of action, in Civil Rights Law § 52–b titled Private right of action for unlawful dissemination or publication of an intimate image. It provides, among other things,  that any person depicted in a still or video image, regardless of whether or not the original still or video image was consensually obtained, shall have a cause of action against an individual who, for the purpose of harassing, annoying or alarming such person, disseminated or published, or threatened to disseminate or publish, such still or video image, where such image: was taken when such person had a reasonable expectation that the image would remain private; and   depicts (i) an unclothed or exposed intimate part of such person; or (ii) such person engaging in sexual conduct, as defined in subdivision ten of section 130.00 of the penal law, with another person; and was disseminated or published, or threatened to be disseminated or published, without the consent of such person.





Appellate Division Revises Statement of Client Rights

A Joint Order of the Departments of the New York State Supreme Court, Appellate Division adopted a Revised Form of Statement of Client’s Rights and Responsibilities pursuant to 22 NYCRR 1400.2, effective February 15, 2019.
  
 
Laws of 2018, Ch 516 - CPLR 4511(c) - Judicial notice of Google Maps.  
 
            Laws of 2018, Ch 516 amended CPLR 4511, effective December 28, 2018, to insert subdivision (c) which provides for a rebuttable presumption of judicial notice of web mapping or global imaging websites such as Google Maps.  Every court must take judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption that such image, map, location, distance, calculation, or other information fairly and accurately depicts the evidence presented.  The presumption may be rebutted by credible and reliable evidence that the image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool does not fairly and accurately portray that which it is being offered to prove.  A   party intending to offer the image or information at a trial or hearing must, at least 30 days before the trial or hearing, give notice of such intent, providing a copy or specifying the internet address at which the image or information may be inspected. No later than 10 days before the trial or hearing, a party upon whom the notice is served may object to the request for judicial notice of such image or information, stating the grounds for the objection. Unless objection is made pursuant to this provision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this provision, the court must take judicial notice of the image or information. Former subdivisions (c) and (d) were renumbered as (d) and (e).
 
 
Laws of 2018, Ch 415 - Domestic Relations Law §11.
 
            Domestic Relations Law §11 was amended effective December 21, 2018, by adding a new subdivision 2-a which adds to the list of those persons who may solemnize a marriage, a member of the New York state legislature, provided that he or she does not charge or receive a fee.
 
 
Laws of 2018, Chapter 362  

            Laws of 2018, Ch 362 amended amend Articles seven and ten of the Family Court Act with regard to PINS and child protective proceedings involving truancy allegations. The Chapter:
 
Amended Family Court Act § 735 to require designated lead PINS diversion agencies to review and document efforts by school districts to resolve truancy or school misbehavior in all PINS proceedings containing such allegations regardless of the potential petitioner
 
Amended Family Court Act § 736 to require that the school district or local educational agency be notified of the court proceeding and be allowed to participate and provide assistance where the court determines that such participation and /or assistance would aid in the resolution of the petition.
 
Amended Family Court Act § 742 of the Family Court Act to permit the court
to refer PINS proceedings to diversion agencies at any stage in the proceeding. To minimize the unnecessary filing of educational neglect petitions against parents, the amendment adds provisions that, in effect, establish a rebuttable presumption in favor of diversion.
 
Amended the definition of educational neglect in Family Court Act § 1012(f) to require proof of parental failure to provide educational services to a child "notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition," thus making failure to resolve educational problems through diversion a prerequisite to filing. 
 
Amended Family Court Act § 1031 to require that these efforts be recited in the petition, along with "the grounds for concluding that the education-related allegations could not be resolved absent the filing of a petition." 
 
Amended Family Court Act § 1035 to authorize Family Court to notify the school district or local educational agency and to allow their participation where the court determines that such participation and /or assistance would aid in the resolution of the petition. (See 2018 NY Legis Memo 362)
 
 
Laws of 2018, Ch 60 - Family Court Act 842-a 
 
            Laws of 2018, Ch 60, § 5, amended Section 842–a of the family court act
to add rifles and shotguns to the list of weapons whose licenses may be suspended or  revoked upon the issuance of a temporary order of protection or order of protection and to provide that upon the termination of any suspension order issued pursuant to this section, any court of record exercising criminal jurisdiction may order the return of a firearm, rifle or shotgun pursuant to paragraph b of subdivision five of section 530.14 of the criminal procedure law. 
 
 
Laws of 2018, Ch 55 - Family Court Act §821(1)(a)
 
          Family Court Act §821 (1)(a) was amended to add coercion in the third degree to the list of crimes that constitute a family offense.
 
Laws of 2018, Chapter 218, Amended CPLR 2305 
 
          Chapter 218 amended CPLR 2305, effective August 24, 2018 to add a new subdivision (d) which gives counsel the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. Existing subdivision 2 provides: “Any person may comply with a subpoena duces tecum for a trial, hearing or examination by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.”
 
    
          CPLR 2305(d) provides as follows:
 
(d) Subpoena duces tecum for a trial; service of subpoena and delivery for records.  Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith.
 
            The amendment was effective immediately and applies to all actions
   pending on or after such effective date.
 
 
Laws of 2018, Chapter 217 added CPLR 4540-a
 
   
            Chapter 217 added CPLR 4540-a effective January 1, 2019 to eliminate the authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure.
 
            According to the Legislative memorandum in support of the legislation the genuineness of a document or other physical object must be established as a prerequisite to its admissibility when the relevance of the item depends upon its source or origin. But evidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court's time and an unnecessary burden on the proponent of the evidence. 
 
 
            New CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. The presumption recognized by the statute applies only to the issue of authenticity or genuineness of the item. A party is free to assert any and all other objections that might be pertinent in the case, such as lack of relevance or violation of the best evidence rule. The Legislative memorandum noted that the adoption of the proposed new CPLR 4540-a would not preclude establishing authenticity by any other statutory or common law means. See CPLR 4543 ("Nothing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the
rules of evidence at common law.").
 
            CPLR 4540-a, effective January 1, 2019 reads as follows:
 
 Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party.  Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an
adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.
 
 
Laws of 2018, Chapter 235 adds new privileged communications
 
            Chapter 235 amended judiciary law section 498, effective August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new subdivision 2 that deems communications between a consumer of legal services and a legal or lawyer referral service to be privileged, similar to the attorney-client privilege. 
 
            Judiciary Law §498, new subdivision 2 reads as follows:
 
 2. The communications between a member or authorized agent of an association or society of attorneys or counselors at law and any person, persons or entity communicating with such member or authorized agent for the purpose of seeking or obtaining a professional referral shall be deemed to be privileged on the same basis as the privilege provided by law for communications between attorney and client. Such privilege may be waived only by the person, persons or entity who has furnished information to the association or society, its members or authorized agents.
 
 Recent Legislation
 
 
Family Court Act §812 (1) amended
 
            The opening paragraph of Family Court Act §812 (1) has been amended to add coercion in the third degree as one of the crimes that constitutes a family offense. In now reads as follows:
 
     The  family court and the criminal courts shall have concurrent jurisdiction over any  proceeding  concerning  acts  which  would  constitute disorderly  conduct,  harassment  in the first degree, harassment in the second degree,  aggravated  harassment  in  the  second  degree,  sexual misconduct,  forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision  one  of  section 130.60  of  the penal law, stalking in the first degree, stalking in the second degree, stalking in the third  degree,  stalking  in  the  fourth degree,  criminal  mischief,  menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault  in  the third  degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in  the  third  degree,  coercion  in the second degree or coercion in the third degree as set forth in subdivisions one, two and three of section  135.60  of  the penal law between spouses or former spouses, or between parent and child
 or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive   jurisdiction   over   such   proceeding.  Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing. For purposes of this article, “disorderly conduct” includes disorderly conduct not in a public place. For purposes of this article, "members of the same family or household" shall mean the following:
               Laws of 2018, Ch 55, Part NN, §5, Effective as provided in § 10 on November 1, 2018.
 ​
Laws of 2017, Ch 35 amended the Domestic Relations Law to prohibit marriage of minors under seventeen years of age and amended the process to obtain court approval for marriage of persons at least seventeen years of age but under eighteen years of age.

Domestic Relations Law § 15-a was amended to increase the age of minors who are prohibited from marrying to under seventeen years of age. Previously minors under fourteen years of age were prohibited from marrying.
 
Domestic Relations Law § 13-b was amended to allow the solemnization of marriage of a party to be married to who is at least seventeen years upon the Court making written affirmative findings required under Domestic Relations Law § 15, subdivision 3. Formerly, the court could allow the solemnization of marriage by minor under sixteen years of age but over fourteen years of age. 

Domestic Relations Law §15,  subdivisions 1(a), 2 and 3 were amended to require  the town or city clerk to require each applicant for a marriage license to present documentary proof of age. In cases where it appears that either party is at least seventeen years of age but under eighteen years of age the process by which the written approval of a justice of the supreme court or a judge of the family court was obtained was amended to provide for, among other things: (i) the appointment of an attorney for the child for each minor party which attorney  must  have received training in domestic violence including a component on forced marriage; and (ii) prior to the justice of the supreme court or the judge of the family court issuing approval, the justice or judge must (1) provide notification to each minor party of his or her rights, including but not limited to, in relation to termination of the marriage, child and spousal support, domestic violence services and access to public benefits and other services (2) conduct, with respect to each party, including a minor party, a review of related decisions in court proceedings initiated pursuant to article ten of the family court act, and all warrants issued under the family court act, reports of the statewide computerized registry of orders of protection under section two hundred twenty-one-a of the executive law, and reports of the sex offender registry under section one hundred sixty-eight-b of the correction law, and (3) hold an in camera interview, separately with each minor party, and make written affirmative findings specified in subdivision 3, taking into consideration, among other relevant factors, the factors set forth in subdivision 3. The wishes of the parents or legal guardians of the minor intending to be married shall not be the sole basis for consent or approval under this subdivision.
 
According to the Sponsor’s memorandum in support of this legislation parents force their children into marriages, citing reasons such as protecting "family honor," controlling the child's behavior and/or sexuality, and enhancing the family's status. Such reasons are reminiscent of the reasons for allowing girls age fourteen and over but under age sixteen to marry with court approval in 1929. The occurrence of child marriage is not limited to a particular culture or religion, but is widespread in the United States. Child marriage or forced marriage, or both, occur in families across faiths, including Muslim, Christian, Hindu, Buddhist, Sikh, Orthodox Jew, Mormon and Unification Church. Tactics such as threats of ostracism, beatings or death are used to force children to marry against their will. Under the Penal Law, a child under 17 does not have the capacity to consent to sex. It is statutory rape for an adult to have sex with a 16-year old but if he is married to her he can force her to have non-consensual sex as often as he likes. Marriage at any age before 18, undermines girls' health, education and economic opportunities, and increases their likelihood of experiencing violence. As a matter of public policy, no parent or court should be permitted to bind a child under the age of seventeen to a contract where the child lacks the capacity as well as the opportunity to consent. This legislation is intended to  strengthen the process as applied to marriage of persons at least seventeen but under eighteen years of age. See 2017 NY Legis Memo 35.

Chief Administrative Judge Adopts New Rules for Matrimonial Actions

By Administrative Order A/O/100/17, 22 NYCRR §202.50 (b) was amended to add a new section 202.50 (b)(3).

The new section requires that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 22 NYCRR §202.50 (b)(3), which  is effective August 1, 2017, provides as follows:

202.50. Proposed Judgments in Matrimonial Actions; Forms
* * *
(b) Approved Forms.
* * *
(3) Additional Requirement with Respect to Uncontested and Contested Judgments of Divorce. In addition to satisfying the requirements of paragraphs (1) and (2) of this subdivision, every judgment of divorce, whether uncontested or contested, shall include language substantially in accordance with the following decretal paragraphs which shall supersede any inconsistent decretal paragraphs currently required for such forms:

ORDERED AND ADJUDGED that the Settlement Agreement entered into between the parties on the ___ day of ____, [ ] an original OR [ ] a transcript of which is on file with this Court and incorporated herein by reference, shall survive and shall not be merged into this judgment, * and the parties are hereby directed to comply with all legally enforceable terms and conditions of said agreement as if such terms and conditions were set forth in their entirety herein; and it is further

* In contested actions, this paragraph may read either [shall survive and shall not be merged into this judgment] or [shall not survive and shall be merged into this judgment].

ORDERED AND ADJUDGED, that the Supreme Court shall retain jurisdiction to hear any applications to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment, provided the court retains jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing, such of the provisions of that (separation agreement) (stipulation agreement) as are capable of specific enforcement, to the extent permitted by law, and of modifying such judgment with respect to maintenance, support, custody or visitation to the extent permitted by law, or both; and it is further

ORDERED AND ADJUDGED, that any applications brought in Supreme Court to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment shall be brought in a County wherein one of the parties resides; provided that if there are minor children of the marriage, such applications shall be brought in a county wherein one of the parties or the child or children reside, except. in the discretion of the judge, for good cause. Good cause applications shall be made by motion or order to show cause. Where the address of either party and any child or children is unknown and not a matter of public record, or is subject to an existing confidentiality order pursuant to DRL § 254 or FCA § 154-b, such applications may be brought in the county where the judgment was entered;
and it is further


By Administrative Order A/O/99/17, 22 NYCRR §202 was amended to add a new section 202.16-b.The new section addresses the submission of written applications in contested 
matrimonial actions.  

The new rules contain limitations which are applicable to to the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless the requirements are waived by the judge for good cause shown. Among other things, all orders to show cause and motions must be in Times New Roman, font 12 and double spaced. The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law may not exceed twenty (20) pages. Any expert affidavit may not exceed eight (8) additional pages. Reply affidavits or affirmations may not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission. 22 NYCRR 202.16 - b, which  is effective July  1, 2017, provides as follows:


§202.16-b Submission of Written Applications in Contested Matrimonial Actions.

(1) Applicability. This section shall be applicable to all contested
matrimonial actions and proceedings in Supreme Court authorized by subdivision (2) of Part B of section 236 of the Domestic Relations Law.

(2) Unless otherwise expressly provided by any provision of the CPLR or other statute, and in addition to the requirements of 22 NYCRR §202.16 (k) where applicable, the following rules and limitations are required for the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless said requirements are waived by the judge for good cause
shown:

(i) Applications that are deemed an emergency must comply with 22 NYCRR §202.7 and provide for notice, where applicable, in accordance with same. These emergency applications shall receive a preference by the clerk for processing and the court for signature. Designating an application as an emergency without good cause may be punishable by the issuance of
sanctions pursuant to Part 130 of the Rules of the Chief Administrative Judge. Any application designated as an emergency without good cause shall be processed and considered in the ordinary course of local court procedures.

(ii) Where practicable. all orders to show cause, motions or cross motions for relief should be made in one order to show cause or motion or cross-motion.

(iii) All orders to show cause and motions or cross motions shall be submitted on one-sided copy except as otherwise provided in 22 NYCRR §202.5(at or electronically where authorized, with one-inch margins on eight and one half by eleven (8.5 x 11) inch paper with all additional exhibits tabbed. They shall be in Times New Roman font 12 and double spaced. They must be of sufficient quality ink to allow for the reading and proper scanning of the documents. Self-represented litigants may submit handwritten applications provided that the handwriting is legible and otherwise in conformity with these rules.

(iv) The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law shall not exceed twenty (20) pages. Any expert affidavit required shall not exceed eight (8) additional pages. Any attorney affirmation in support or opposition or
memorandum of law shall contain only discussion and argument on issues of law except for facts known only to the attorney. Any reply affidavits or affirmations to the extent permitted shall not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission.

(v) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16 (b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the Appellate Division). maintenance guidelines worksheets and/or child support worksheets, or counsel fee billing statements or affirmations or
affidavits related to counsel fees (pursuant to Domestic Relations Law §237 and 22 NYCRR §202.16(k))' all of which may include attachments thereto,all exhibits annexed to any motion, cross motion, order to show cause, opposition or reply may not be greater than three (3) inches thick without prior permission of the court. All exhibits must contain exhibit tabs.

(vi) If the application or responsive papers exceed the page or size limitation provided in this section, counsel or the self-represented litigant must certify in good faith the need to exceed such limitation, and the court may reject or require revision of the application if the court deems the reasons insufficient.

(3) Nothing contained herein shall prevent a judge or justice of the court or of a judicial district within which the court sits from establishing local part rules to the contrary or in addition to these rules.



By Administrative Order A/O 102/17, the Uncontested Divorce Packet Forms were modified to reflect the increases as of March 1, 2017 in the Self Support Reserve to $16,281 and in the Poverty Level Income for a single person to $12,060. 
(see https://childsupport.ny.gov/dcse/child_support_standards.html).




Domestic Relations Law § 245 amended effective September 29, 2016

    Domestic Relations Law § 245, which authorizes the remedy of contempt, pursuant to Judiciary Law §756 et.seq., to enforce a judgment or order for the payment of a sum of money awarded in a matrimonial action, was amended   to allow an application for contempt to be made without any prior application for enforcement by any other means.  The amendment eliminates the requirement of demonstrating presumptively, to the satisfaction of the court, in the order to show cause bringing on the application, that payment cannot be enforced pursuant to DRL§ 243, DRL§ 244, CPLR 5241 or  CPLR 5242.  
                       
     Domestic Relations Law § 245, as amended, provides:
   
     §  245.  Enforcement  by  contempt proceedings of judgment or order in  action for divorce, separation or  annulment.  Where  a  spouse,  in  an action for divorce, separation, annulment or declaration of nullity of a void  marriage,  or  for the enforcement in this state of a judgment for divorce, separation, annulment or  declaration  of  nullity  of  a  void marriage  rendered  in another state, makes default in paying any sum of money as required by the judgment or order directing the payment  thereof,  the aggrieved spouse may make application pursuant to  the provisions of section seven hundred fifty-six of the  judiciary  law to  punish the defaulting spouse for contempt, and where the judgment or order directs the payment to be  made  in  installments,  or  at  stated intervals,  failure  to  make  such single payment or installment may be punished as therein provided, and such punishment,  either  by  fine  or commitment,  shall not be a bar to a subsequent proceeding to punish the defaulting spouse as for  a  contempt  for  failure  to  pay  subsequent installments,  but for such purpose such spouse may be proceeded against under the said order in the same manner and  with  the  same  effect  as though  such  installment  payment was directed to be paid by a separate and distinct order, and the provisions of the civil rights law are hereby superseded so far as they are in conflict therewith.   Such  application may also be made without any previous sequestration or direction to give  security  or any application for enforcement by any other means.  No demand    of  any kind upon the defaulting spouse shall be necessary in order that he or     she be proceeded against and punished for failure to make any such payment or to pay  any  such  installment;  personal  service  upon  the defaulting  spouse of an uncertified copy of the judgment or order under which the default has occurred shall be sufficient.   (Laws of 2016, Ch 345, § 1, enacted September 29, 2016, and effective immediately as provided in §2.) 
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        Prior to the amendment the applicant had to establish presumptively in the affidavit in support of the application that  payment could not be enforced pursuant to DRL§ 243, DRL§ 244, CPLR 5241 or  CPLR 5242. or that these remedies would be ineffectual.


Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Child Support Convention) Ratified.
 
          On August 30, 2016 President Obama signed the Instrument of Ratification for the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Child Support Convention). This is the first global child support treaty ratified by the United States. 
         See http://www.acf.hhs.gov/css/resource/us-ratification-of-hague-child-support-convention
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Laws of 2015, Chapter 572 amended CPLR 2103 effective January 1, 2016.

CPLR 2103(b)(2) was amended to provide that where a period of time prescribed by law is measured from the service of a paper and service is made by mail outside of the state of New York, but within the geographic boundries of the United States, six days shall be added to the prescribed period. The definition of mailing in CPLR 2103(f)(1) was amended to authorize mailing in the United States, rather than the state of New York. 

The purpose of the amendment was so that the rule for mailing service would correspond with that for overnight delivery service in CPLR 2103(b)(6). The Sponsors memorandum in support of the legislation also noted a decision by the Appellate Division, First Department, holding the service by mail made outside the State was insufficient (M. Entertainment, Inc. v. Leydier, 62 A.D.3d 627 (reversed on other grounds, 13 N.Y.3d 827). The amendment authorizes service by mail outside the state, but within the geographical boundries of the United States.

Laws of 2015, Chapter 567 (effective June 18, 2016)


Domestic Relations Law§ 240, subdivision 1 (a) was amended and subdivision (c-1) was added to Family Court Act § 651 (c-1). The purpose of the legislation was to underscore that custody standards apply in cases where custody and visitation petitions brought under these sections are heard jointly with child protective dispositional or permanency hearings in Family Court under Article 10 or 10-A of the Family Court Act.

The following provision was inserted into Domestic Relations Law§ 240 subdivision 1 (a):

Where a proceeding filed pursuant to article ten or ten-A of the family court act is pending at the same time as a proceeding brought in the supreme court involving the custody of, or right to visitation with, any child of a marriage, the court presiding over the proceeding under article ten or ten-A of the family court act may jointly hear the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of the family court act and, upon referral from the supreme court, the hearing to resolve the matter of custody or visitation in the proceeding pending in the supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section.

The following provision was added to Family Court Act §651:

(c–1) Where a proceeding filed pursuant to article ten or ten-A of this act is pending at the same time as a proceeding brought in the family court pursuant to this article, the court presiding over the proceeding under article ten or ten-A of this act may jointly hear the hearing on the custody and visitation petition under this article and the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of this act; provided, however, the court must determine the custody and visitation petition in accordance with the terms of this article.
 
Laws of 2015, Ch 447 

Laws of 2015, Ch 447 amended Domestic Relations Law §237 (a) effective November 20, 2015, and applicable to all actions whenever commenced, to provide that an unrepresented litigant shall not be required to file an  affidavit  detailing  fee  arrangements  when making  an  application  for  an  award  of  counsel  fees and expenses. However, as a condition precedent to not being required to file such affidavit the unrepresented litigant must have submitted an affidavit that he or she  is  unable to  afford  counsel  with supporting proof, including a statement of net worth, and, if available, W-2 statements  and  income  tax  returns  for himself  or herself.  
According to the New York Assembly Memorandum in Support of the Legislation the purpose of the amendment was “to make clear that indigent pro se litigants may make an application for an award of fees necessary to obtain counsel without the formal requirement of an affidavit detailing fee arrangements with counsel, provided proof has been submitted of an inability to afford counsel.” 
 
New Temporary Maintenance Guidelines Apply Only to Actions Commenced on or after October 25, 2015

The new temporary maintenance guidelines apply in matrimonial actions commencement on or after October 25, 2015. Click on the following links to go to the  New temporary maintenance calculator worksheet and calculator which appear on the New York Court System website.
See Laws of 2015, Ch 269, which provides that section three of the act, which amended Domestic Relations Law 235[B][5-a] dealing with Temporary Maintenance Awards, “ shall take effect on the thirtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.” The other sections of the Act are effective January 23, 2016.
Click on this link for the Temporary Maintenance Calculator Worksheet for Use in Actions Commenced before October 25, 2015
 
Laws of 2015, Ch 387, approved October 26, 2015, effective January 24, 2016.

          The statutory provisions for child support have been amended to reflect the fact that spousal maintenance is money no longer available as income to the payor, but constitutes income to the payee,  so long as the order or agreement for such maintenance lasts.
           Domestic Relations Law § 240(1-b)(5)(iii) and Family Court Act § 413(1)(b)(5)(iii) were amended to add a new subclause (I) to each that requires that alimony or spousal maintenance actually paid to a spouse who is a party to the action must be added to the recipient spouse's income, provided that the order contains an automatic adjustment to take effect upon the termination of the maintenance award. According to the New York Assembly Memorandum in Support of Legislation this addition would be based upon an amount already paid, e.g., an amount reported on the recipient spouse's last income tax return, and would not simply be an estimate of future payments.
         Domestic Relations Law § 240(1-b)(5)(vii)(C) and Family Court Act § 413(1)(b)(5)(vii)(C) were amended to clarify that, where spousal maintenance payments are deducted from the payor's income, the order must contain a specific provision adjusting the child support amount automatically upon the termination of the spousal maintenance award. According to the New York Assembly Memorandum in Support of Legislation this relieves the custodial parent of the burden of moving for a modification of the child support order upon the termination of maintenance but leaves open the possibility for either or both parties to seek a modification of the automatic adjustment if, at the point where maintenance terminates, the income of either of the parties has changed in an amount that would qualify for modification under Family Court Act § 451(3)(b)(ii) or Domestic Relations Law § 236B(9)(b)(2)(ii), e.g., in excess of 15% or a lapse of three years or more. The specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with Family Court Act § 451(3) or Domestic Relations Law § 236B(9)(b)(2) with the proviso that in a subsequent action for modification, the inclusion of the specific adjustment shall not by itself constitute a "substantial change of circumstances."

Laws of 2015, Ch 347, § 1 amended Social Services Law § 111-i to align the timing of the adjustment of the Combined Parental Income Adjustment with the adjustment of the poverty income guidelines amount for a single person and the self-support reserve. 
 
Laws of 2015, Ch 369

Laws of 2015, Ch 369, § 2 repealed Article 5-B of the Family Court Act and enacted the 2008 version of the Uniform Interstate Family Support Act (UIFSA) as a new Article 5-B of the Family Court Act. Chapter 369 was signed into law on September 25, 2015. Section 1 is effective on December 24, 2015. New Article 5-B to the Family Court Act applies to any action or proceeding filed or order issued on or before the effective date of new Article 5-B, consistent with new section 580-903 of the Family Court Act which shall be effective on January 1, 2016.

Laws of 2015, Ch 269
 
Laws of 2015, Ch 269 amended Domestic Relations Law §236 [B][1][a], Domestic Relations Law §236 [B][5][d][7], Domestic Relations Law §236 [B][6], Domestic Relations Law § 248, Domestic Relations Law §236 [B][9][1], Family Court Act § 412, effective January 23, 2016, and amended Domestic Relations Law § 236 [B][5-a], effective October 25, 2015. 
[Click for a Commentary on the Amendments]

​ Summary of the Amendments 
          The amendments eliminated “enhanced earning capacity as a marital asset” for purposes of equitable distribution (Domestic Relations Law §236 [B] [5] [d] [7]) but did not eliminate as a factor the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse. They adopted mandatory guidelines with formulas for the calculation of maintenance and spousal support awards, (Domestic Relations Law §236 [B] [6] and Family Court Act § 412), added actual or partial retirement as a ground for modification of post-divorce maintenance where it results in a substantial diminution of income. (Domestic Relations Law §236 [B] [9] [1]) and made Domestic Relations Law § 248 gender neutral.
Income Cap Lowered 
          The amendments lowered the income cap for the formula portion of temporary maintenance awards, (Domestic Relations Law § 236 [B] [5-a]) from the current $543,000 to $175,000 of the payor's income. 
            An income cap of $175,000 cap applies to post-divorce maintenance awards and spousal support awards.
Temporary Maintenance 
           There is a new formula for determining temporary maintenance. 
In determining temporary maintenance, the court can allocate the responsibility for payment of specific family expenses between the parties. 
            The temporary maintenance award must terminate no later than the issuance of a judgment of divorce or the death of either party. This amendment is intended to clarify that the Supreme Court has the power to limit the duration of temporary maintenance. 
          New Formulas for Calculating Temporary Maintenance, Post-Divorce Maintenance and Spousal Support
There are now mandatory formulas for the calculation of maintenance and spousal support awards.
There are two formulas to be used in calculating maintenance and spousal support: one where child support will be paid and where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where it will be paid but the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes. 
            Those formulas are as follows:
           a. With child support where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee's income from 20% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance;
b. Without child support, or with child support but where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes:  (i) subtract 20% of the maintenance payee's income from 30% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
 Post-Divorce Maintenance Guidelines 
          The definition of income for post-divorce maintenance includes income from income-producing property that is being equitably distributed. 
Factors the court may consider in post-divorce maintenance now include termination of child support, and income or imputed income on assets being equitably distributed.  
           There is an “advisory” durational formula for determining the duration of post-divorce maintenance awards. However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.
 Modification of Post-Divorce Maintenance
            Actual or partial retirement is a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income.
  Spousal Support Guidelines for Family Court 
            Spousal support guidelines are established for Family Court using the same two formulas set forth for maintenance guidelines, as follows: one where child support will be paid and where the spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where child support will be paid but the spousal support payor is the custodial parent for child support purposes. The $175,000 income cap applies. 
The court may adjust the guideline amount of spousal support up to the income cap where it finds that the guideline amount of spousal support is unjust or inappropriate after consideration of one or more factors, which shall be set forth in the court's written or on the record decision. 
Where there is income over the cap, additional spousal support may be awarded after consideration of one or more factors, which shall be set forth in the court's written or on the record decision.
           A new factor for the court to consider in spousal support awards as well as maintenance awards is termination of a child support award.
          The Family Court may modify an order of spousal support upon a showing of a substantial change in circumstances. Unless so modified, spousal support orders set pursuant to the guidelines shall continue until the earliest to occur of a written or oral stipulation/agreement on the record, issuance of a judgment of divorce or other order in a matrimonial proceeding, or the death of either party. This is not intended to change current law with respect to Family Court's ability to terminate spousal support. (See NY Legis. Memo 237 (2015)).
Effective Date
           The amendments become effective January 25, 2015 and apply to all matrimonial and Family Court actions for spousal support commenced on or after such effective date, including the provisions regarding post-divorce maintenance and spousal support awards. However, the provisions regarding temporary maintenance take effect October 25, 2015.

December 14, 2022

Appellate Division, First Department

Pendente lite child support award will not be disturbed absent exigent circumstances or failure to consider appropriate factors.

In Murray v Rashid, --- N.Y.S.3d ----, 2022 WL 17490799, 2022 N.Y. Slip Op. 07001 (First Dept., 2022) the Appellate Division declined to disturb the pendente lite child support  award where the husband had not shown that there were exigent circumstances necessitating a different award, nor that Supreme Court failed to consider the appropriate factors when it determined the award, which was derived from the parties’ imputed incomes.


Even if the judgment of divorce included terms that were not expressly agreed to by the parties, the parties agreement in their oral stipulation upon the essential elements created an enforceable contract and court was entitled to fill in the gaps based on objective criteria


  In Bradley v Bakal, --- N.Y.S.3d ----, 2022 WL 17490833, 2022 N.Y. Slip Op. 06988(1st Dept.,2022) the Appellate Division, inter alia,  rejected defendant’s contention that the judgment of divorce should be vacated in its entirety because the parties had not yet agreed to all the ancillary issues to the divorce, and the judgment did not reflect the parties’ in-court oral stipulation. The record made clear that the parties’ in-court oral stipulation was intended to resolve all ancillary issues of the divorce. Even if the judgment of divorce included terms that were not expressly agreed to by the parties, upon review of the oral stipulation, it concluded that the parties agreed upon the essential elements to create an enforceable contract, notwithstanding that certain discrete issues were left open to future negotiation. Since the parties were  unable to reach an agreement on these remaining issues, the court was entitled to fill in the gaps based on objective criteria (see Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 317–318, 515 N.Y.S.2d 1 [1st Dept. 1987]). It remanded the matter to the court for a determination that the terms of the judgment of divorce not expressly agreed to by the parties comport with some objective criteria.


Appellate Division, Second Department
 
 
Family Court has the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b) in a contempt proceeding based upon its determination, in effect, that the mother had engaged in frivolous conduct. A hearing was not necessary since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.

In Matter of Coward v Biddle, 2022 WL 17332496 (2d Dept.,2022) the father’s counsel moved, inter alia, to hold the mother in civil contempt for her failure to comply with a prior order of the Family Court which had directed the mother to pay attorneys’ fees directly to the father’s counsel of $3,000. Family Court found the mother in civil contempt of the order, and awarded the father’s counsel additional attorneys’ fees totaling $4,500. The Appellate Division affirmed both orders. It held that the Family Court had the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b). The court did not improvidently award the father’s counsel attorneys’ fees based upon its determination, in effect, that the mother had engaged in frivolous conduct (see 22 NYCRR 130–1.1[a]). Despite the mother’s contention to the contrary, a hearing with respect to the award of attorneys’ fees was not necessary under the circumstances, since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.


Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.

In Matter of Sydelle P. --- N.Y.S.3d ----, 2022 WL 17332493, 2022 N.Y. Slip Op. 06809 (2d Dept.,2022) the Appellate Division, held that a  finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence. Even a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding. Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.


Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.

  In Matter of Karen P. v. Alvin P., --- N.Y.S.3d ----, 2022 WL 17332553 (Mem), 2022 N.Y. Slip Op. 06808 (2d Dept.,2022) a family offense proceeding the Appellate Division held that where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.
Supreme Court did not improvidently exercise its discretion in awarding the monied spouse  attorney’s fees where, among other things, plaintiff’s conduct resulted in unnecessary litigation

  In Forman v Forman, --- N.Y.S.3d ----, 2022 WL 17480735, 2022 N.Y. Slip Op. 06913 (2d Dept.,2022) the  parties stipulation of settlement  was incorporated  but not merged into a judgment of divorce dated April 2, 2019. In June 2019, the plaintiff moved to vacate the judgment of divorce and to set aside the stipulation. The Supreme Court, denied the plaintiff’s motion and awarded the defendant attorney’s fees of $6,987.50. The Appellate Division affirmed. It held that Supreme Court did not improvidently exercise its discretion in awarding the defendant attorney’s fees. The award of reasonable attorney’s fees is a matter in the court’s sound discretion, and the court may consider, inter alia, a party’s tactics that unnecessarily prolonged the litigation. While the plaintiff was the less monied spouse, the court’s award reflected consideration of the relevant factors, including that the plaintiff’s conduct resulted in unnecessary litigation. Thus, the court did not improvidently exercise its discretion in granting the defendant’s cross motion for an award of attorney’s fees.



Family Court properly included the children as protected persons on the order of protection, where he evidence demonstrated that doing so was necessary to further the purposes of protection

In Matter of Cook v Berehowsky, --- N.Y.S.3d ----, 2022 WL 17480744, 2022 N.Y. Slip Op. 06925 (2d Dept.,2022) the Appellate Divison observed that a person commits harassment in the second degree when that person, “with intent to harass, annoy or alarm another person ... strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26[1]). The intent element may be inferred from the surrounding circumstances. It held that the mother established by a fair preponderance of the evidence that the father had committed the family offense of harassment in the second degree. The mother’s testimony, which the Family Court credited, established that the father pulled a rug out from under her, causing her to fall. The father committed this act in the presence of the children, and the mother’s hand hit one of the subject children as she fell. The father’s intent to harass and alarm the mother could be inferred from the circumstances here, including his screaming before the incident and the lack of a legitimate reason for the father to pull the rug on which the mother was standing, particularly when the mother was in such close proximity to the subject children. Additionally, the Family Court properly included the children as protected persons on the order of protection, as the evidence demonstrated that doing so was “necessary to further the purposes of protection” (Family Ct Act § 842[l]; see Matter of Lengiewicz v. Lengiewicz, 167 A.D.3d 608, 609, 89 N.Y.S.3d 241; Matter of Shank v. Shank, 155 A.D.3d 875, 877, 63 N.Y.S.3d 719).
 

March 31, 2021 amendment to Family Court Act § 1046(a)(iii) which provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021.

  In Matter of Mia S v Michelle C,, --- N.Y.S.3d ----, 2022 WL 17480834, 2022 N.Y. Slip Op. 06932 (2d Dept.,2022) the Appellate Division observed that on  March 31, 2021, Family Court Act § 1046(a)(iii) was amended to provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect. It held that the March 31, 2021 amendment to Family Court Act § 1046(a)(iii) should be retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021. It observed that pursuant to Family Court Act § 1046(a)(iii), “proof that a person repeatedly misuses a drug,” under certain circumstances, constitutes “prima facie evidence that a child of ... such person is a neglected child.” Where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm.” Family Court Act § 1046(a)(iii), as amended (L 2021, ch 92, § 58), provides as follows: “(a) In any hearing under this article and article ten-A of this act: ... “(iii) proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug, or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program. Provided however, the sole fact that an individual consumes cannabis, without a separate finding that the child’s physical mental or emotional condition was impaired or is in imminent danger of becoming impaired established by a fair preponderance of the evidence shall not be sufficient to establish prima facie evidence of neglect.”
 
The Appellate Division concluded that Family Court’s finding of neglect was proper under Family Court Act § 1046(a)(iii), as amended in March 2021 was proper. In determining that the child was neglected, the Family Court did not make a finding as to whether the child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” (FCA § 1012[f][i]). Such a finding was obviated because the court relied on the presumption set forth in Family Court Act § 1046, under which “proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child” (id. § 1046[a][iii]). Thus, the order appealed from should be affirmed only if the statutory presumption was properly applied.  It held that the 2021 amendment did not preclude a determination that the petitioner established a prima facie case of neglect. The 2021 amendment should not be interpreted as preventing any reliance on the misuse of marihuana, no matter how extensive or debilitating, to establish a prima facie case of neglect. The statute still encompasses the misuse of other legal substances, such as alcoholic beverages and prescription drugs. It held that based on the plain language of the statute, the 2021 amendment does not prevent a court from finding that there has been a prima facie showing of neglect where the evidence establishes that the subject parent has, in fact, repeatedly misused marihuana in a manner that “has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality”. Such a finding is not based on “the sole fact” that the parent “consumes cannabis”.
 
The evidence presented at the fact-finding hearing, which included the testimony of the mother and her boyfriend, hospital treatment records, and other medical records, supported the Family Court’s determination that the petitioner met its burden of proving that the mother neglected the child by her misuse of marihuana in a manner and to the extent contemplated by Family Court Act § 1046(a)(iii).  In its order, the Family Court expressly determined that the mother had misused marihuana and “clearly had a substantial impairment of judgment, and/or substantial manifestation of irrationality and was disoriented and/or incompetent.” Since this finding was not based on “the sole fact” that the mother “consumes cannabis” (Family Ct Act § 1046[a][iii]), it provided a sufficient basis on which to apply the presumption of neglect arising from repeated misuse of drugs that is articulated in the statute, as amended.



Appellate Division, Third Department


Supreme Court properly denied pretrial motion for classification of assets, as separate property where the motion lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage.

In Belmonte v Belmonte, --- N.Y.S.3d ----, 2022 WL 17347194, 2022 N.Y. Slip Op. 06844 (3d Dept.,2022) an action for a divorce, the husband cross-moved for, among other things, a declaration that certain real property was separate property. Supreme Court denied the husband’s cross motion. In support of his motion, the husband submitted his own affidavit, various deeds and titles showing the titled owners of each property, and an expenditures list showing sums but lacking any detail as to how or where each sum was expended. The Appellate Division observed that the appeal lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage. It held that while it generally encourages pretrial classification of assets, under these circumstances, Supreme Court did not abuse its discretion in denying the husband’s cross motion to classify assets as separate property pretrial as additional discovery would  place the motion court in a far better position to determine this legally dispositive issue, namely, what, if any, appreciation in the value of the real property can be considered marital property.



Supreme Court


Supreme Court grants Defendants motion to  re-open the trial pursuant to CPLR 4404(b), after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception

In Gary G. v Elena A.G. ,--- N.Y.S.3d ----, 2022 WL 17482396, 2022 N.Y. Slip Op. 22373 (Sup Ct., 2022)  Supreme Court granted defendants motion to  re-open the trial pursuant to CPLR 4404(b),after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception. It rejected plaintiff argument that defendant’s reliance on CPLR §4404(b) was  inapplicable here because the Court had not issued a decision or judgment.  In support of the motion Defendant’s counsel affirmed that, his law firm e-mailed plaintiff’s counsel that defendant intended to offer certain charts pursuant to the voluminous writing exception into evidence the following day in support of her testimony regarding alleged marital debt incurred prior to commencement on her credit cards; that his law firm included a link to the proposed charts together with copies of the underlying credit card statements in said e-mail for plaintiff’s counsel’s review. Defendant’ counsel affirmed that he “inadvertently forgot” to offer “certain business records, reflecting the Defendant-Wife’s credit card debts and the parties’ marital expenditures, into evidence” on September 13, 2022.. The parties rested on September 14, 2022. 

Supreme Court observed that CPLR 4404(b) provides: (b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue. It pointed out that it is well-established that a motion pursuant to CPLR 4404(b) “must be made within 15 days after the submission of the court’s decision”. Where a CPLR 4404(b) motion is submitted more than 15 days after the court’s decision, the movant must demonstrate good cause for the delay. The standard in reviewing these applications includes the moving party demonstrating that they could not have previously discovered this evidence or that the evidence was previously inaccessible. The Court rejected plaintiff’s contention that defendant’s application pursuant to CPLR 4404(b) was fatal because no judgment or order has been issued. The unique facts and circumstances presented here clearly fell within the contemplation of CPLR 2005 relating to law office failure which provides: …the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure. Moreover, it is well-established that “[t]rial courts have the power to permit a litigant to reopen a case under appropriate circumstances” and in doing so the Court must consider “whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted.” The Court found that it was appropriate under the unique facts and circumstances presented, re-opening the trial on the limited issue of offering the credit cards and any related direct and cross-examination related to any such exhibits which may be accepted into evidence after the Court hears any relevant evidentiary objections based upon law office failure.

The court pointed out that the best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven”. CPLR 4518(a) (the “business record exception”) provides that: (a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. The voluminous writing exception (also referred to as the “Voluminous Record Rule”) “permits the admission of summaries of voluminous records or entries where, if requested, the party against whom it is offered can have access to the original data”. The voluminous writing exception is not a new principal. In Public Operating Corp. v. Weingart, the Appellate Division, First Department in 1939 wrote that:[w]hen documents introduced in evidence at a trial are voluminous and of such a character as to render it difficult for the jury to comprehend material facts without schedules containing abstracts thereof, it is within the discretion of the judge to admit such schedules provided they are based on facts in evidence, verified by the testimony of the person by whom they were prepared, and provided that the adverse party is permitted to examine them to test their correctness and to cross examine upon them before the case is submitted to the jury (257 AD 379, 382 [1 Dept.,1939]).

Family Court


Family Court holds that FCA § 1015-a allows the court to order a social services official to  transport the children in its Temporary Custody to a supervised visit, before a final order of disposition is entered


In the Matter of D.G., G.C., G.L., I.C., I.L., K.C., L.C., M.C., S.C., --- N.Y.S.3d ----, 2022 WL 17589740, 2022 N.Y. Slip Op. 22379 (Fam Ct, 2022) the Family Court observed that the Court may order a social services official, such as the Commissioner, to provide a child placed in his care with authorized services pursuant to Family Ct Act §§ 255, 1015-a and 18 NYCRR §§ 427.3(c)(1); 441.15. State regulations authorize the Petitioning Agency to make special payments on behalf of foster children for items, costs, or services that are necessary for the child but are not included in the rate for board, care, and clothing. Such payments can include expenses necessary for family visits. 18 NYCRR § 427.3(c)(1). FCA § 1015-a allows the court to order a social services official to provide or arrange for services and help in order to protect the family, rehabilitate the family, or discharge the child from foster care including visitation services. FCA § 1030 applies to cases in which subject children are in the temporary custody of the local social services district before a final order of disposition places the subject children in foster care; it provides that a parent has a right to reasonable and regularly scheduled visits and allows a parent to apply to the court for such visits. When children are placed in foster care, visitation is the most critical way for families to stay connected and to achieve family reunification. State regulations require that parents receive at least bi-weekly visits. The Family Court rejected the argument of the Petitioning Agency that an order requiring the agency to transport the children I.C. and S.C. to the second weekly supervised visit would encroach on the agency’s administrative discretion to allocate its scarce resources. The Court granted the Respondent Mother’s application to the extent that the foster care agency, Catholic Guardian Services, was directed to transport the subject children I.C. and S.C. to the second weekly supervised visit.



November 30, 2022

Appellate Division, Third Department


Navy pension credits earned prior to the marriage, but acquired during the marriage, with marital funds, were deferred compensation which was defendants separate property. However, as marital funds were utilized to purchase the pension credits, those funds were subject to equitable distribution


In Szypula v Szypula, --- N.Y.S.3d ----, 2022 WL 17168939, 2022 N.Y. Slip Op. 06664 (3d Dept.,2022) Plaintiff (wife) and defendant ( husband) were married in 1996 and had two unemancipated children. The husband was employed by the United States Navy from 1987 until 1998, earning 11 years of unvested pension credits. In 2012, the husband began employment with the United States Department of State and was given the option of “buy[ing] back” the pension benefit credits earned for his previous military service. He did so, utilizing marital funds for the purchase. In 2019, the wife commenced the action for divorce. The Supreme Court held that the Navy pension credits earned prior to the marriage, but acquired during the marriage, were marital in nature and included them in its calculation of the wife’s award of the husband’s pension. 
The Appellate Division held that Supreme Court erred in classifying that portion of the Navy pension credits earned prior to the marriage as marital property. Domestic Relations Law § 236 creates a statutory presumption that all property acquired during the marriage is marital. The burden then rests with the party asserting the separate property claim to rebut the presumption. A pension benefit is, in essence, a form of deferred compensation derived from employment and an asset of the marriage that both spouses expect to enjoy at a future date. Even though workers are unable to gain access to the money until retirement, their right to it accrues incrementally during the years of employment. An employee’s interest in such a plan, except to the extent that it is earned before marriage or after commencement of a matrimonial action, is marital property.  Whether and to what extent a pension benefit is marital or separate property is determined by the time period in which the credit for the pension was earned. Here, as nine of the 11 years of credits purchased were admittedly earned prior to the marriage, they remained defendant’s separate property. The Court noted that compensation for past services earned prior to the marriage is separate property. The nine years of premarriage Navy credits were earned outside the marriage and were  based on the fruit of the titled spouse’s sole labors. As they were not due in any way to the indirect contributions of the non-titled spouse, the wife’s contention that she was entitled to an equitable share of any “appreciation” in the value of credits that had been classified as the husband’s separate property was unpersuasive. The acquisition of the separate pension credits could not serve to transform such property into a marital asset (see Ceravolo v. DeSantis, 125 A.D.3d 113, 116, 1 N.Y.S.3d 468 [3d Dept. 2015]; Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769 [3d Dept. 2000]). However, as marital funds were utilized to purchase the pension credits, those funds were subject to equitable distribution. It remitted the matter to Supreme Court to amend the QDRO to reflect that the nine years of premarriage credit for military service from 1987 to 1996 was the husband’s separate property and to equitably distribute the marital funds utilized to purchase the credits 


Where the conduct at issue is alleged to have occurred in a private residence, in order to establish the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. 

In Matter of Kilts v Kilts 2022 WL 17168983 (3d Dept.,2022) the Appellate Division reversed an order of the family court which found that respondent had committed the family offense of disorderly conduct and issued a six-month order of protection on petitioner’s behalf. It pointed out that , “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] ... [h]e [or she] engages in fighting or in violent, tumultuous or threatening behavior” (Penal Law § 240.20[1]). Pursuant to both CPL 530.11(1) and Family Court Act § 812(1), disorderly conduct’ includes disorderly conduct not in a public place.  Yet, even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct . At the fact-finding hearing, petitioner testified that she had called the police on respondent a couple of times, and in the morning of the day respondent threatened her life, she believed she spoke with “Officer Morrison” or another sheriff’s deputy but did not have an accompanying police report. Petitioner at first stated that she never told anyone about respondent’s threat, but then stated that she told two friends about it, as well as her son-in-law. Here, petitioner failed to meet her burden of making a prima facie showing that respondent had the requisite intent to create public inconvenience, annoyance or alarm, or recklessly causing a risk of the same. Petitioner’s evidence did not establish that respondent’s actions were public in a manner that would support such a finding. Respondent’s threat against petitioner’s life would have undoubtedly caused public disorder if others had heard the threat. However, the record revealed that respondent appeared to have threatened petitioner’s life in only their company, and without having drawn the attention of others to the scene. Although the police were called on one instance, without a police report in evidence, it was impossible to determine which one of the parties – or if, in fact, a neighbor – had called the police to therefore permit a finding that respondent’s conduct rose to the level of creating a public disturbance.


The law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence.

In Matter of Sarah QQ v Raymond PP, --- N.Y.S.3d ----, 2022 WL 17168630, 2022 N.Y. Slip Op. 06659 (3d Dept.,2022) after a fact-finding hearing and a Lincoln hearing, Family Court dismissed the father’s custody modification petitions and granted the mother’s petitions, awarding her sole legal and primary physical custody of the child. On appeal the father contended that Family Court improperly excluded CPS records regarding indicated findings against the mother concerning her abuse and/or neglect of another child, which included statements by the subject child. The Appellate Division observed that although hearsay is generally not permitted, “[t]his Court has carved out an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046(a)(vi)” (Matter of Rosario WW. v. Ellen WW., 309 A.D.2d 984, 987, 765 N.Y.S.2d 710 [3d Dept. 2003]). Such testimony requires corroboration, though a  relatively low degree of corroboration is sufficient, and the requirement may be satisfied by any other evidence tending to support the reliability of the child’s statements.  At the fact-finding hearing, Family Court permitted the father to testify as to receiving notifications from CPS that the mother “has been indicated in some cases regarding her other children.” The mother then objected, stating that this was “irrelevant and immaterial” because it did not involve the subject child and was hearsay. The court overruled the objection on the basis that the other children resided in the same home as the subject child. Later during the fact-finding hearing, the father sought to admit certified records of Saratoga County Department of Social Services “pertaining to the parties and/or the child relative to these proceedings.” The mother objected on the basis of hearsay. The father contended that these records were admissible as business records or alternatively, under an exception based on indicated abuse and neglect findings. The attorney for the child also argued that the records fell within “the hearsay exception for them to be admitted.” Family Court did not allow the records into evidence on the basis of hearsay, remarking that “we aren’t here on a neglect proceeding. We’re here on a custody proceeding.... [N]o hearsay is permitted unless there’s an exception otherwise. And ... the fact that it may deal with abuse or neglect is not an exception to the hearsay rule.” The agency records that the father sought to admit were not in the record. A review of the father’s modification petition revealed that he noted CPS’s involvement with the mother and cited to such as establishing a change in circumstances. Specifically, he alleged there had been “ongoing child protective involvement in the mother’s home, that the subject child had indicated there was domestic abuse taking place in the home and that the child has reported that he is being neglected by the mother. The petition stated that “it was revealed through the CPS open investigation that the child is reporting that there is no food at the mother’s home and that he goes without meals.” Based on the foregoing, the Appellate Division held that Family Court erred in refusing to allow the CPS records into evidence based upon the rationale that no hearsay exception existed for abuse and neglect allegations in a Family Ct Act article 6 proceeding. Although this was not a Family Ct Act article 10 proceeding, the law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence. The matter was reversed and remitted to Family Court for the admission of such evidence at a new fact-finding hearing on the parties’ modification petitions.




Dismissal of custody modification petition reversed and matter remitted to a different judge where  Family Court demonstrated an inability to be fair.  Based on its comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appeared to have prejudged the case.

In Matter of Nicole B. v Franklin A , --- N.Y.S.3d ----, 2022 WL 17168800, 2022 N.Y. Slip Op. 06672 (3d Dept.,2022) the Appellate Division held that accepting the mother’s proof as true and according her the benefit of every possible favorable inference, Family Court erred in dismissing the mother’s amended custody modification petition. It found that the mother’s proof regarding injuries suffered by the child during the father’s parenting time, taken together with the mother’s improved parenting abilities and living conditions, demonstrated a change in circumstances sufficient to overcome a motion to dismiss. It agreed with the mother and the appellate attorney for the child that the matter should be remitted to a different judge. It found that Family Court demonstrated an inability to be fair at various stages of the proceeding, starting with the first appearance, where the court indicated that it was inclined to dismiss the mother’s modification petition without a hearing, and the order on appeal made clear that the court had, sua sponte, earlier dismissed several petitions filed by the mother. At the next appearance, the court again indicated that it was disinclined to modify the custody order and later, referring to the mother, stated that “the boy who cried wolf is very large and in charge of this case.” At the opening of the fact-finding hearing, after noting that it had already held several hearings regarding this child, the court stated that if it “g[o]t the feeling as we go through that the burden of that change [in circumstances] is not going to happen ... [the court is] going to cut things off.” Then, at the close of the mother’s proof, Family Court prompted the father to make a motion to dismiss the mother’s petition, which motion the court granted. Based on Family Court’s comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appeared to have prejudged the case. The matter was remitted for a new hearing before a different judge.


November 23, 2022

Appellate Division, Second Department  
 
Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances to warrant a best interest hearing to determine whether to modify an existing custody arrangement

In Matter of McDowell v Marshall, --- N.Y.S.3d ----, 2022 WL 16827201, 2022 N.Y. Slip Op. 06248 (2d Dept.,2022) the Appellate Division observed that in order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child. The best interests of the child must be determined by a review of the totality of the circumstances. Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances.  Further, where the initial custody arrangement is based upon an agreement between the parties, it is entitled to less weight than the determination by a court. The Family Court properly found that there was a change of circumstances sufficient to change the parties’ custodial arrangement, based upon, inter alia, the mother’s repetition of sexual abuse allegations when she sought medical treatment for the child in October 2019, after those allegations had been determined to be unfounded. Further, the evidence of a hostile relationship between the mother and the father indicated that joint decision-making was untenable, which was also a change of circumstances. It found that Family Court’s determination that there had been a change in circumstances requiring a transfer of primary physical custody and final decision-making authority to the father to ensure the best interests of the child had a sound and substantial basis in the record.


Appellate Division, Fourth Department


A parent’s right to be present for fact-finding and dispositional hearings in termination of parental rights cases is not absolute 

In Matter of Briana S.-S.--- N.Y.S.3d ----, 2022 WL 16847920, 2022 N.Y. Slip Op. 06337 ( 4th Dept., 2022) the Appellate Division rejected the fathers contention that the court abused its discretion in denying his attorney’s request for an adjournment when the father was not transported from the facility where he was incarcerated to the courthouse on the first day of the fact-finding hearing. It held that a parent’s right to be present for fact-finding and dispositional hearings in termination cases is not absolute. When faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child[ren] in determining whether to proceed.  Here, the court properly proceeded in the father’s absence in order to provide the children with a prompt and permanent adjudication. Although the father was not present on the first day of the hearing, he was able to assist his attorney in cross-examining the mother after she testified during her case-in-chief, and in cross-examining a caseworker during her continued testimony on the second day of the hearing; the court balanced the need for a prompt adjudication with the father’s interests in its evidentiary rulings by, inter alia, denying petitioner’s application to play an exhibit on the first day of the hearing when the father was not present; and the father’s attorney represented his interests at the hearing. Thus, the father failed to demonstrate that he suffered any prejudice as a result of his absence.  
 

A direct appeal from a summary criminal contempt adjudication is appropriately entertained where there exists an adequate record for appellate review.  

In S.P., v. M.P.,.--- N.Y.S.3d ----, 2022 WL 16847699 (Mem), 2022 N.Y. Slip Op. 06377 (4th Dept.,2022) the Appellate Division reversed and vacated an  order in this  post-divorce child custody action, that fined the mother $1,000 upon findings adjudicating her in criminal contempt pursuant to Judiciary Law § 750 (A) (3). Preliminarily, it  concluded that the mother’s challenge to the summary contempt adjudications was properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review. With respect to the merits it observed that because contempt is a drastic remedy, strict adherence to procedural requirements is mandated. It found that the court committed reversible error by failing to afford the mother the requisite opportunity, after being advised that she was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced.


“House Rules” imposed by the Supreme Court in a custody case were misguided and erroneous even assuming, arguendo, that the court had the authority to impose such rules

  In Burns v Greenjan, --- N.Y.S.3d ----, 2022 WL 17075145, 2022 N.Y. Slip Op. 06577(4th Dept.,2022) a custody modification and enforcement proceeding, at an early appearance, the court suggested imposing its “house rules” on the children and the mother until the children complied with visitation. Those rules barred the children from many activities, including leaving the mother’s home except for school and church, using cell phones and other electronic devices, engaging in any extracurricular activities, and conversing with, socializing with, or visiting family and friends. Without holding a hearing, the court issued temporary orders that increased the father’s visitation time, directed the mother to enforce that visitation, and imposed the house rules. The mother and the Attorney for the Children (AFC) subsequently requested that the court remove the house rules and hold a hearing to evaluate whether the rules and the visitation schedule were in the children’s best interests. The Appellate Division held, inter alia, that the court erred in altering the terms of the parties’ custody and visitation arrangement and in imposing its house rules without conducting a hearing to determine the children’s best interests. It reinstated the provisions of the parties agreement and remitted the matter to Supreme Court for a hearing, including a Lincoln hearing, to determine whether modification of the parties’ custody and visitation arrangement was the children’s best interests. With respect to the imposition of the court’s house rules on the mother and the children, it stated that even assuming, arguendo, that the court had the authority to impose such rules (cf. Ritchie v Ritchie, 184 AD3d 1113, 1115 [4th Dept 2020]), the record failed to demonstrate that the imposition of the house rules in this case was in the children’s best interests. 
The Appellate Division held that the court erred in refusing the AFC’s repeated requests for a Lincoln hearing and in otherwise declining to consider the children’s views in determining visitation. One of the parties’ children was a teenager throughout these proceedings, and another entered his teenage years while this matter was being litigated. Although “ ‘the express wishes of children are not controlling, they are entitled to great weight, particularly where[, as here,] their age and maturity ... make[s] their input particularly meaningful’ ” With respect to the merits, it is well settled that “[a] Lincoln hearing serves the vital purpose of allowing a court to ascertain a child’s preference and concerns, as well as corroborating information obtained during the fact-finding hearing” .
The Appellate Division rejected  the mother’s contention that the findings of contempt in appeal Nos. 2 and 5 had to be vacated because they were based on violations of the house rules. It is well settled that an appeal from a contempt order that is jurisdictionally valid does not bring up for review the prior order” (Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d 1537, 1538 [4th Dept 2012]). Thus,  the mother was bound to adhere to the orders imposing those rules “[however misguided and erroneous [they] may have been.”
 
Service of orders by the Family Court via email only, which is not a method of service provided for in Family Court Act § 1113, does not start the time to appeal to run
  
In Matter of Bukowski v Florentino, --- N.Y.S.3d ----, 2022 WL 17075465 (Mem), 2022 N.Y. Slip Op. 06606(4th Dept.,2022) a proceeding to modify visitation,  the Appellate Division stated that inasmuch as the orders in appeal Nos. 1 and 2 indicated that the grandmother may have been served the orders by the court via email only, which is not a method of service provided for in Family Court Act § 1113, and the record did not otherwise demonstrate that she was served by any of the methods authorized by the statute, it could not determine when, if ever, the time to take the appeals began to run, and thus it could not be said that the grandmother’s appeals were untimely Similarly, it could not be said that the grandmother’s appeal in appeal No. 3 was untimely inasmuch as there was no evidence in the record that the grandmother was served with the order by a party or the child’s attorney, that she received the order in court, or that the Family Court mailed the order to her.


Parties to an appeal are entitled to have the record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer or the audio recording device

In Wagner v Wagner, --- N.Y.S.3d ----, 2022 WL 17075272 (Mem), 2022 N.Y. Slip Op. 06600 (4th Dept.,2022), matrimonial action,  the Appellate Division reversed an order denying plaintiffs motion for a reconstruction hearing to reconstruct portions of the testimony of plaintiff and defendant that could not be transcribed due to malfunctions of the audio recording system. It held that parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer or the audio recording device. Here, significant portions of the testimony of plaintiff and defendant, including testimony related to child custody and certain other issues, could not be transcribed due to malfunctions of the audio recording system, which would preclude meaningful appellate review of those issues. It remitted the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed.




November 9, 2022

Appellate Division, First Department


Court deviating from the presumptive amount of temporary maintenance must explain the reasons for any deviation

In Severny v Severny, --- N.Y.S.3d ----, 2022 WL 16557211 (Mem), 2022 N.Y. Slip Op. 06094 (1st Dept.,2022) the Appellate Division, inter alia, modified the award of temporary maintenance and remanded for reconsideration where the court  followed the calculations provided in Domestic Relations Law § 236(B)(5–a) to arrive at a presumptive award of temporary maintenance, but deviated from the presumptive amount without explaining the reasons for any deviation from the result reached by the formula factors.


Appellate Division, Second Department  
 
An application for interim counsel fees by the nonmonied spouse should not be denied or deferred until after the trial, without good cause, articulated by the court in a written decision. Plaintiff waived her objections to the defendant’s failure to meet his disclosure obligations by failing to move for sanctions under CPLR 3126 before filing the note of issue. 

In Fugazy v Fugazy, --- N.Y.S.3d ----, 2022 WL 16626149, 2022 N.Y. Slip Op. 06115 (2d Dept.,2022) in March 2017, the plaintiff commenced an action for a divorce and filed a note of issue and certificate of readiness on June 20, 2018. In August 2018, after the defendant moved, inter alia, to compel the defendant to appear for a further deposition and to produce certain documents, and for an award of interim counsel fees In an order dated October 3, 2018, the court, inter alia, denied plaintiff’s cross motion to compel discovery and referred to the trial court her cross motion which was for an award of interim counsel fees. In November 2018, the defendant moved, inter alia, to quash subpoenas served by the plaintiff and for a protective order. In an order dated December 13, 2018, the Supreme Court, among other things, granted the defendant’s motion. The plaintiff appealed from, inter alia, each of these orders.
 
The Appellate Division held that taking into account all of the relevant circumstances, the Supreme Court improperly referred to the trial court that branch of the plaintiff’s cross motion which was for an award of interim counsel fees (see Domestic Relations Law § 237[a];“Because of the importance of such awards to the fundamental fairness of the proceedings, ... an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied—or deferred until after the trial, which functions as a denial—without good cause, articulated by the court in a written decision”. Here, the court erred in summarily referring that branch of the plaintiff’s cross motion which was for an award of interim counsel fees to the trial court, which functioned as a denial of that relief, and failed to articulate any reasons, much less good cause, for that determination. The evidence submitted by the plaintiff demonstrated that she was the nonmonied spouse, as the defendant earned five to seven times more income than the plaintiff in recent years. While the defendant argues that the plaintiff has funds available to her, the plaintiff “cannot be expected to exhaust all, or a large portion, of the finite resources available to her in order to pay her attorneys, particularly when the [defendant] is able to pay his own legal fees without any substantial impact upon his lifestyle. In the exercise of discretion, it awarded interim counsel fees of $75,000 subject to reallocation at trial if deemed appropriate by the court. 

The Appellate Division held that Supreme Court properly denied the plaintiff’s motion to compel the defendant to appear for a further deposition and to produce certain documents. The plaintiff was aware that the defendant had not responded to the demand for documents or appeared for a further deposition, yet still filed the note of issue and certificate of readiness without seeking relief. The plaintiff therefore waived her objections to the defendant’s failure to meet his disclosure obligations by failing to move for sanctions under CPLR 3126 before filing the note of issue.

The Appellate Division held that Supreme Court properly granted the defendant’s motion which were to quash the plaintiff’s subpoenas and for a protective order. A subpoena duces tecum may not be used for the purpose of general discovery or to ascertain the existence of evidence. Rather, the purpose of a subpoena duces tecum is ‘to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding’. Here, each of the plaintiff’s subpoenas sought information and documents similar to those sought in the plaintiff’s prior motion to compel the production of documents, which the court had denied, and the subpoenas were thus an attempt to circumvent the court’s order and improperly obtain general discovery.


Matter remitted by Appellate Division to reopen custody hearing where new developments had arisen since the orders appealed from were issued

In Matter of Baker v James . --- N.Y.S.3d ----, 2022 WL 16626216, 2022 N.Y. Slip Op. 06125 (2d Dept., 2022) the Family Court, inter alia, awarded the father sole residential custody of the child subject to the mother’s parenting time as set forth in a parental access schedule. The mother appeals. The Appellate Division observed that new developments had arisen since the orders appealed from were issued, which were brought to this Court’s attention by the attorney for the child and acknowledged by the father. These developments included the father’s incarceration, allegations of neglect against the father, and the Family Court’s issuance of an order temporarily placing the child in the custody of the child’s paternal grandmother. In light of the new developments the Appellate Division held that the record was no longer sufficient to review whether the Family Court’s determination regarding custody and parental access was in the best interests of the child. It remitted the matter to the Family Court for a reopened hearing to consider these new facts and thereafter a new determination as to custody and parental access.


Appellate Division, Fourth Department


Time to take appeal under Family Ct Act § 1113 did not start to run where the order was emailed to the father’s attorney. The statute does not provide for service by the court through email or any other electronic means and therefor the father’s appeal was not untimely.


In Matter of Grayson v. Thomas S., . --- N.Y.S.3d ----, 2022 WL 5402859, 2022 N.Y. Slip Op. 05649  (4th Dept, 2022)  the Appellate Division, inter alia, reversed the finding of neglect agreeing with the father that the evidence presented at the fact-finding hearing failed to establish by a preponderance of the evidence that he neglected the child. It rejected the argument of  petitioner and the Attorney for the Child (AFC) that the father did not take his appeal within the time period allotted by Family Court Act § 1113 and that the appeal should be dismissed as untimely. It observed that pursuant to Family Court Act § 1113, an appeal from a Family Court order “must be taken no later than thirty days after the service by a party or the child’s attorney upon the appellant of any order from which the appeal is taken, thirty days from receipt of the order by the appellant in court or thirty-five days from the mailing of the order to the appellant by the clerk of the court, whichever is earliest.” When service of the order is made by the court, the time to take an appeal does  not commence unless the order contains a statutorily required statement and there is an official notation in the court record as to the date and the manner of service of the order” (§ 1113; see Matter of Fraser v. Fraser, 185 A.D.3d 1444, 1445, 128 N.Y.S.3d 713 [4th Dept. 2020]). An appeal as of right is taken by filing the original notice of appeal with the clerk of the Family Court in which the order was made and from which the appeal is taken” (§ 1115). Here, there was no evidence in the record that the father was served with the order of fact-finding and disposition by a party or the child’s attorney, that he received the order in court, or that the Family Court mailed the order to the father. Instead, despite using a form order that provided typewritten check boxes for the two methods of service by the court mentioned in the statute (i.e., in court or by mail) (see Family Ct Act § 1113), the court crossed out the word “mailed” and edited the form to indicate that the order was emailed to, among others, the father’s attorney. The statute does not provide for service by the court through email or any other electronic means  and, contrary to the assertions of petitioner and the AFC, traditional mail and email are not indistinguishable. The statute permits court service by mail but does not provide for such service by electronic means (see § 1113). Inasmuch as the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there was no indication that he was served by any of the methods authorized by the statute, the time to take an appeal did not begin to run and the father’s appeal was not untimely.



Supreme Court

Comity denied Egyptian Judgment of Divorce where Notice and opportunity to be heard, were not provided to the Plaintiff wife in the Egyptian proceeding.

          In DAB v MA, --- N.Y.S.3d ----, 2022 WL 16731940, 2022 N.Y. Slip Op. 22341 (Sup Ct, 2022) the parties to this action for a divorce were citizens of Egypt, and both were of the Muslim faith. The Defendant moved from Egypt to the United States on October 7, 2017. Plaintiff moved from Egypt to the United States on or about April 2019. She resided in Staten Island, New York. He resided in Queens County. On or about December 2021, Defendant retained an attorney in Egypt to file a divorce proceeding against the Plaintiff in Egypt. The divorce was styled as a religious or customary divorce, with the full credit of the government of Egypt through their Ministry of Justice. While residing in the United States the defendant  executed a power of attorney, granting his attorney authority to represent him in the Egyptian divorce matter without being present. Defendant contended upon information and belief that on Wednesday, February 9, 2022, at 7:00 PM in the presence and under the authority of Abdelrahman Mohammed Jaafar, a legal authorized Clerk, or government official also known as “Maazoun,” within the District of Alraml at the “Personal Status Court”, and in the presence of two adult witnesses, the Defendant (in the within matter) through his attorney, Mamdouh Ali Ahmed, appeared in person before the Maazoun. According to Defendant’s counsel, the Egyptian Certificate of Divorce recited that both parties were Egyptian Nationals with residential addresses in Egypt. The certificate also stated that “after exhausting all means of arbitration pursuant to article 40 of the Maazounin code, Husband confirmed that he had divorced his wife”. The sole requirement was that the Husband utter that he divorced his wife, before the Maazoun and two witnesses after consummation of the marriage. Supreme Court held that the Egyptian Divorce Judgment did not preclude the Supreme Court from adjudicating the underlying divorce complaint under the laws of New York and in conformity with the principles of comity. It was uncontroverted that the Plaintiff wife had no notice that the Defendant husband had engaged a representative to appear before the Maazoun, Ministry of Justice on his behalf, for the purpose of obtaining a Judgment of Divorce. Notice and opportunity to be heard, were not provided to the Plaintiff wife in the Egyptian proceeding. Under these facts, and pursuant to the relevant case law, comity could not be granted to the Egyptian Certificate of Divorce, nor did it reach the standard to be granted comity as an in Rem divorce.



Supreme Court Awards Trial Retainer to AFC observing that . Courts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the attorney for the child’s fees
In JM, v. RM, 2022 --- N.Y.S.3d ----, 2022 WL 16704582, 2022 N.Y. Slip Op. 22339 (Sup Ct.,2022) the Attorney for the Child moved for an Order: directing that a trial retainer of $15,000 be paid to her in accordance with the Order of Appointment with regard to the pending trial which is being scheduled by the Court at the next court appearance., As of the date of her Affidavit, her retainer had not fully been paid, and there was an outstanding balance due to her. She argued that if she did not receive a trial retainer, she will have to spend multiple hours preparing for trial and participating in same without being paid. She argued that the Defendant has retained two attorneys since her appointment, but has failed to pay his full share of her retainer; that the Defendant was the monied spouse; and that her currently hourly rate is $350 per hour and a $15,000 trial retainer is appropriate. The Court noted that pursuant to the first Order Appointing an Attorney for the Child it directed that a $5,000.00 retainer be remitted to the prior AFC. After she was relieved as counsel the Court issued a second Order Appointing an Attorney for the Child dated March 29, 2022, appointing this Attorney  as the AFC. In that order it directed that a $4,000.00 retainer be remitted to her. Supreme Court granted her application pointing out that the child was entitled to representation to protect its best interests. It observed that courts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the attorney for the child’s fees (citing, inter alia, Matter of Plovnick v. Klinger, 10 A.D.3d 84, 89, 781 N.Y.S.2d 360 [2004]; see 22 NYCRR 36.4; Judiciary Law § 35 [3]; Rupp-Elmasri v. Elmasri, 8 A.D.3d 464, 778 N.Y.S.2d 289 [2004])). The Court held that the AFC was entitled to a trial retainer and that  trial retainer of $10,000.00 was an appropriate trial retainer to be paid to the AFC.  Neither party had been directed to pay 100% of the AFC’s fees or this trial retainer, and instead are paying it pursuant to the Order of Appointment, which was 70% by the Defendant and 30% by the Plaintiff.


The party seeking to restore an action to the calendar after it is dismissed has the burden of establishing “good cause” for the delay

  In Iyageh v Iyageh, --- N.Y.S.3d ----, 2022 WL 14725215, 2022 N.Y. Slip Op. 22327 (Sup. Ct.,2022) the Court denied the motion to restore a matter to the calendar where there were no unemancipated children and neither party submitted a judgment of divorce for twelve (12) years after they entered into a stipulation of settlement and proceeded to inquest. Supreme Court observed that pursuant to 22 NYCRR § 202.48 (a), a proposed judgment or order that must be settled or submitted on notice must be signed within 60 days of the decision’s signing and filing. Pursuant to 22 NYCRR § 202.48 (b), when parties fail to submit an order or judgment in a timely manner their action is to be deemed abandoned, unless there is good cause reason for the delay. Pursuant to CPLR § 3404, Supreme Court cases that are struck from the calendar and not restored within one (1) year are deemed abandoned and dismissed without costs for neglect to prosecute. A dismissed action may be restored to the calendar beyond the one (1) year of the statute if the plaintiff establishes a reasonable excuse for the failure to prosecute the action and a lack of prejudice to the defendants (Cawthon v. Cawthon, 276 A.D.2d 661, 661, 714 N.Y.S.2d 335 [2d Dept. 2000]).  The party seeking to restore an action to the calendar after it is dismissed has the burden of establishing “good cause” for the delay (Madigan v. Klumpp, 173 A.D.2d 593, 593—94, 570 N.Y.S.2d 176 [2d Dept. 1991][the Appellate Division found that the husband failed to show good cause for not submitting the judgment of divorce for over a year where he asserted he believed the wife was responsible for filing]; see also Seeman v. Seeman, 154 A.D.2d 584, 585—86, 546 N.Y.S.2d 413 (2d Dept. 1989)[no good cause found where law firm misplaced or forgot to file the judgment of divorce for more than two (2) years]). Here, plaintiff offered no explanation for his failure to file a proposed judgment of divorce packet for twelve (12) years.

Administrative Order AO/141a/22 Amended New Rules Governing Matrimonial Actions

22 NYCRR 202.16, 22 NYCRR 202.16-a,  22 NYCRR 202.16-b, and 22 NYCRR 202.18 of the Uniform Rules for the Supreme Court and the County Court (“Uniform Rules”) are the “matrimonial rules”. Effective July 1, 2022, 22 NYCRR 202.16 (the matrimonial rules) were revised to, among other things specifically incorporate 22 NYCRR Part 202 (See AO142/22, amended on June 13, 2022) which contains many of the commercial division rules effective February 1, 2021. 

On July 27, 2022, Administrative Order  AO/141a/22 revised the Uniform Civil Rules for the Supreme Court and the County Court  including harmonization with the rules governing matrimonial actions effective immediately to  supersede solely the provisions of AO/270/20 that are inconsistent with its terms and provisions. The revision corrected typographical errors in AO/141/22.


Administrative order AO 370/21, amended Rules Governing the Consensual Electronic filing Matrimonial Actions
Administrative order AO 370/21, effective December 21, 2021, contains the current list of counties in which e-filing is permitted in matrimonial actions. Except as otherwise required by AO 370/21 or its Appendix B, the consensual e-filing rules in 22 NYCRR § 202.5-b apply.  Appendix B, effective December 21, 2021 contains amended Rules Governing the Consensual Electronic filing of Matrimonial Actions in the Supreme Court.
Matrimonial actions

Matrimonial actions are defined in Administrative order AO 370/21, Appendix B as those actions set forth in CPLR § 105(p) and Domestic Relations Law § 236, as well as plenary actions for child support, custody or visitation, an order of protection or an application under the Child Parent Security Act where: the action is contested, and addresses issues including, but not limited to, alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support or the equitable distribution of property or the action is uncontested; or the action is a post-judgment application that either (1) addresses an underlying matrimonial action that was commenced electronically, or (2) is electronically initiated with the purchase of a new index number. 
No papers or documents filed by electronic means In matrimonial actions are available to the public. The existing personal service requirements in the domestic relations law, family court act, or civil practice law and rules are not abrogated. 
Forensic evaluations may not be efiled
Unless otherwise directed by the court, evaluations or investigations of the parties or a child by a forensic mental health professional (including notes) and reports by a probation service or child protective service in proceedings involving custody, visitation, neglect or abuse and other matters involving children may not be filed electronically. 
Matrimonial post-judgment applications
Service of the initiating documents in post-judgment applications subject to consensual e-filing must be effectuated in hard copy and accompanied by a notice of electronic filing (for post-judgment matrimonial proceedings).  Proof of hard copy service must be filed by electronic means. 


November 1, 2022

October 26, 2022



Court of Appeals

Court of Appeals holds that the Interstate Compact on the Placement of Children (ICPC) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.


In the Matter of D.L.,v. S.B.  --- N.E.3d ----, 2022 WL 14123151, 2022 N.Y. Slip Op. 05940 (2022) the Court of Appeals held that the Interstate Compact on the Placement of Children (ICPC) an agreement among the states to follow certain procedures in connection with sending children across state borders “for placement in foster care or as a preliminary to a possible adoption” (Social Services Law § 374–a [1] [art III] [a]) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.

Petitioner father, a North Carolina resident, and respondent mother, a New York resident, were the parents of the subject child. In 2012, respondent Suffolk County Department of Social Services (DSS) removed the child from the custody of mother, who admitted neglecting the child, and placed the child in foster care. Father exercised his right to appear in the neglect proceeding and, in 2013, an application was made under the ICPC to North Carolina for the approval of father’s home in that state as a suitable placement for the child. The relevant North Carolina authority denied the ICPC request. The child remained in foster care with the goal of reunification with mother and, according to father, he maintained contact with and continued to visit with the child. Thereafter, in 2017, the father commenced these custody proceedings, arguing that it was in the child’s best interests to award him sole custody. DSS argued that the child could not be placed with father in light of the North Carolina authority’s 2013 refusal to consent to the placement. Family Court dismissed father’s petitions without conducting a hearing. It held in pertinent part that the requirements of the ICPC applied to placement of the child with father, even though he was an out-of-state noncustodial parent, because the child was in the custody and care of DSS in New York. The Appellate Division affirmed (183 A.D.3d 565, 121 N.Y.S.3d 644 [2nd Dept. 2020]), holding that Family Court properly determined that the ICPC applied because “the child was in the custody of DSS and ... father resided in North Carolina” The Court concluded that the petitions for custody were correctly dismissed without a hearing inasmuch as the relevant North Carolina authority denied approval of father’s 2013 ICPC request. 

The Court of Appeals reversed. It observed that the ICPC is an agreement among the 50 states, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is “construed as state law” in each adopting state (McComb v. Wambaugh, 934 F.2d 474, 479 [3d Cir 1991]).The ICPC governs the “interstate placement of children” (Social Services Law § 374–a [1] [art I]). The ICPC provides at the outset that it applies when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption. Specifically, article III of the ICPC provides: “(a) No sending agency shall send ... into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article ...“(b) Prior to sending ... any child ... into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice ...” (emphasis added). (Social Services Law § 374–a [art III] [a], [b]). “Placement,” in turn, is defined as “the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution” (id. § 374–a [art II] [d]).
 
The Court of Appeals  observed that by its terms, the ICPC governs the out-of-state “placement” of children “in foster care or as a preliminary to possible adoption” (Social Services Law § 374–a [1] [art III] [a] & [b]). The language of the statute thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent. Applying the ICPC to noncustodial parents would be inconsistent with the statutory requirement that, when a child is placed pursuant to the ICPC, “[t]he sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement” (Social Services Law § 374–a [1] [art V] [a]). As the United States Court of Appeals for the Third Circuit observed, “[t]o construe the return of a child to [a] parent as a ‘placement’ within the Compact would result in the anomalous situation of imposing a financial obligation upon a sending state that supersedes parents’ duty to support their children” (McComb, 934 F.2d at 480). There is nothing in the statutory language to indicate that the ICPC was intended to apply to out-of-state parents seeking custody of their children and the statutory text confines application of the ICPC to children placed in foster care or preliminary adoptive homes. It noted that its decision in Matter of Shaida W., 85 N.Y.2d 453, 626 N.Y.S.2d 35, 649 N.E.2d 1179 [1995]) did not compel a contrary conclusion. In that case, the question before the Court was whether the ICPC applied when children, who were in the care and custody of a New York social services agency, were taken to another state by their grandmother after the agency placed the children into temporary foster care with the grandmother. Although article VIII(a) provides that the ICPC does not apply to “[t]he sending or bringing of a child into a receiving state by [a] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or [a] guardian and leaving the child with any such relative or non-agency guardian in the receiving state” (Social Services Law § 374–a [1] [art VIII] [a]), it explained that “the children were not legally ‘sent’ to California by their grandmother”. Rather, “[t]he official custodian” of the children was the “Department of Social Services of New York City,” and it was the agency that “authorized the children to be ‘sent’ ” to California within the meaning of the statute. That is, the children were sent by a social services agency to a “kinship foster care placement” in another state and, as such, this Court concluded that the ICPC applied. Here, in contrast, placing a child with an out-of-state parent did not involve foster care or adoption and, thus, Shaida W. did  not control. The Court pointed out that its reading of the ICPC as being applicable only to placement of a child for foster care or as a preliminary to adoption, and not to custody of a noncustodial parent, comports with the intent reflected in the Compact’s legislative history and the underlying statutory purpose. Although the ICPC does not apply to placement with a parent, the Family Court Act contains other effective means to ensure the safety of a child before awarding custody to an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has a broad array of powers under the Family Court Act to ensure a child’s safety.


 
Appellate Division, First Department


DRL § 237, applies to parties litigating the issue of standing as a “parent” under DRL § 70. Where the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, it was, in effect, a final order and  Petitioner was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees

In Matter of Gunn v Hamilton, --- N.Y.S.3d ----, 2022 WL 10207780, 2022 N.Y. Slip Op. 05790 (1st Dept.,2022) the Appellate Division pointed out that in Matter of Kelly G. v. Circe H., 178 A.D.3d 533, 117 N.Y.S.3d 171 (1st Dept. 2019) it determined that Domestic Relations Law § 237, in consonance with the Court of Appeals’ decision in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), applies to parties litigating the issue of standing as a “parent” under Domestic Relations Law § 70. It agreed with petitioner that the motion court’s framing of the counsel fee award as an “interim” order was incorrect. Given that the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, costs, and expenses, approximately $2.7 million, it found that the fee award was, in effect, a final order. Accordingly, petitioner, who vigorously challenged the motion, was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees. It vacated the order and remand the matter to the motion court for an evidentiary hearing on reasonable counsel fees.

The Appellate Division also vacated the finding of criminal contempt premised on petitioner’s noncompliance with a June 28, 2021 order. Even if the order were not vacated, the procedural defects apparent in this proceeding warranted reversal. The record made clear that the court held a criminal contempt proceeding. Accordingly, petitioner was entitled to the same rights afforded a criminal defendant, including a right to be heard, to have her guilt proven beyond a reasonable doubt, and to meaningful representation of counsel. Petitioner did not receive the benefit of these procedural safeguards.


 Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing

In Matter of Jose M. R., v. Arian S., --- N.Y.S.3d ----, 2022 WL 10207779, 2022 N.Y. Slip Op. 05816 (1st Dept.,2022) a family offense proceeding the Appellate Division held that Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing, as he could not have been surprised or prejudiced by his own admissions (see Matter of Oksoon K. v. Young K., 115 AD3d 486, 487 [1st Dept 2014], lv denied, 24 NY3d 902 [2014] ).


A parent who has complied with the recommended service plan has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.
 
In  Matter of Patrice H. W., --- N.Y.S.3d ----, 2022 WL 10207773, 2022 N.Y. Slip Op. 05820 (1st Dept.,2022) the Appellate Division found that the finding of permanent neglect with respect to the child Patrice was supported by clear and convincing evidence. Respondent failed to plan for the child, evidenced by her refusal to acknowledge the problems that led to the foster care placement of the child in the first place, blaming the children, the biological mother, and the agency and denying that the children were subject to sexual abuse. Regardless of whether a parent has complied with the recommended service plan, she has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.


Finding of neglect against the mother was supported by evidence establishing that she refused to enforce a final order of protection issued against her boyfriend and in favor of the child in a prior neglect proceeding

In Matter of Taveon J.,--- N.Y.S.3d ----, 2022 WL 4830386, 2022 N.Y. Slip Op. 05512 (1st Dept.,2022) the Appellate Division found that the finding of neglect against the mother was supported by a preponderance of the evidence establishing that she placed the children’s physical and psychological safety in imminent risk of impairment by refusing to enforce a final order of protection issued against her boyfriend and in favor of the child Taveon in a prior neglect proceeding. Taveon, who was then 11 years old, was heard crying on a tape of a 911 call, in which he reported that the mother’s boyfriend allegedly choked her and then threatened to kill Taveon; the caseworker also testified that Taveon was crying at the police station after the incident. This evidence established, among other things, that the mother risked Taveon’s emotional health by failing to enforce the order of protection issued on his behalf.


Appellate Division, Second Department


Where a material term of a stipulation is  left for future negotiations the agreement  constituted “a mere agreement to agree,” is unenforceable

In Pinto v Pinto, --- N.Y.S.3d ----, 2022 WL 6850257, 2022 N.Y. Slip Op. 05728 (2d Dept.,2022) the parties stipulation of settlement   that was incorporated, but not merged, into the judgment of divorce recited that it was the parties’ intention that the children would attend college, and provided that the children, with both parties’ cooperation, would apply for “merit and need based financial aid” to cover the cost of attending college. The stipulation further provided that, “should there be necessary costs and expenses once financial aid, merit aid and scholarships are exhausted[,] the parties shall consult and try to reach an agreement on payment of these cost[s] and expenses at the time those cost[s] and expenses arise. If the parties cannot agree they can address the issue in a Court of competent jurisdiction.” 

In 2019, the plaintiff moved, inter alia, in effect, to direct the defendant to reimburse the plaintiff for the repayment of one-half of the total amount of the student loans incurred for the payment of the college costs and expenses for the parties’ children, based on the above-quoted provision of the stipulation. The plaintiff   averred, inter alia,  with the defendant about her contributing to the cost of the children’s education on at least two occasions while the children were attending college, and the defendant deferred discussion of the matter to a later time.  The defendant averred that the parties consulted with each other on the issue of the children’s college expenses, that they agreed that the plaintiff would pay those expenses, and that the plaintiff did so. Supreme Court, denied plaintiff’s motion. The Appellate Division affirmed.

The Appellate Division held that the provision of the stipulation upon which the plaintiff relied in seeking reimbursement from the defendant required only that “the parties shall consult and try to reach an agreement on payment of [the children’s college-related] cost[s] and expenses.” This provision did not identify an amount or percentage of such costs or expenses to be paid by either party, and did not impose an obligation upon either party to make any such payment. Rather, “a material term [was] left for future negotiations” (Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). Thus, the subject provision constituted “a mere agreement to agree,” and, as such, was unenforceable (id. at 109, 436 N.Y.S.2d 247, 417 N.E.2d 541; see Silverman v. Silverman, 249 A.D.2d 378, 379, 671 N.Y.S.2d 145; Flanel v. Flanel, 152 A.D.2d 536, 543 N.Y.S.2d 501).
 

Where there is no right to counsel pursuant to FCA § 262, claims of ineffective assistance of counsel in civil litigation will not be entertained absent extraordinary circumstances 

In Matter of Buljeta v Fuchs, --- N.Y.S.3d ----, 2022 WL 6849583, 2022 N.Y. Slip Op. 05687 (2d Dept.,2022) the Appellate Division held that situations where there is no statutory right to counsel pursuant to Family Court Act § 262, claims of ineffective assistance of counsel in the context of civil litigation will not be entertained where extraordinary circumstances are absent (see Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 943, 53 N.Y.S.3d 130; Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048, 983 N.Y.S.2d 892).
 

Where the father’s  failure to pay child support is not willful a money judgment should be entered in favor of the mother for the amount of child support arrears

  In Matter of Santman v Schonfeldt, --- N.Y.S.3d ----, 2022 WL 6846934 (Mem), 2022 N.Y. Slip Op. 05693 (2 Dept.,2022) a child support enforcement proceeding,  the Family Court denied the petition and dismissed the proceeding. The Appellate Division found that the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support of $19,591.43. Therefore, the mother met her prima facie burden. The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. The Appellate Division held that under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful. Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should have been entered in favor of the mother for the amount of child support arrears that accrued during the relevant period (see Family Ct Act  §§ 454[2][a]; 460[1]). It remitted the matter to the Family Court, for the entry of an appropriate money judgment.


Denial of husbands pendente lite motion to sell portion of wine collection to pay marital debt  was in keeping with purposes of DRL § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced

In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10781782 (Mem), 2022 N.Y. Slip Op. 05835 (2d Dept.,2022) in July 2018, the plaintiff commenced this action for a divorce. In October 2018, the Supreme Court denied the defendants motion inter alia, for permission to sell a portion of the parties’ wine collection pendente lite in order to pay marital debt and expenses. The Appellate Division affirmed. It observed that Domestic Relations Law § 236(B)(2)(b)(1) provides, in pertinent part, that during the pendency of a matrimonial action, “neither party shall sell ... or in any way dispose of, without ... consent of the other party in writing, or by order of the court, any property (including ... personal property ...) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.” The record supported the Supreme Court’s determination The parties’ affidavits submitted in connection with the motion reflected factual disputes regarding, inter alia, the size and estimated value of the wine collection, the parties’ past course of conduct during the marriage with respect to sales from the wine collection, and the parties’ respective alleged irresponsibility or responsibility with regard to household finances. In light of these factual disputes, denial of the subject branch of the motion was appropriate and in keeping with the statutory purposes of Domestic Relations Law § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced by the potential “unilateral dissipation of marital assets”.

Second Department reiterates rule that modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances

In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10778464 (Mem), 2022 N.Y. Slip Op.  (2d Dept.,2022) the parties were married in 2008 and had two children. In July 2018, the plaintiff commenced the action for a divorce. In an order dated January 4, 2021, the Supreme Court, inter alia, granted the plaintiff’s motion for an award of pendente lite child support to the extent of directing the defendant to pay pendente lite child support in the sum of $5,059 per month, retroactive pendente lite child support in the sum of $40,472 at a rate of $1,700 per month, and 100% of the children’s add-on expenses. The Appellate Division affirmed. It held that  modification of the pendente lite child support award was not warranted. Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires. Any perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored. The defendant failed to demonstrate the existence of any exigent circumstances warranting a modification of the pendente lite child support award made by the Supreme Court.


Appellate Division, Third Department


Presumption that visitation with a noncustodial parent is in the best interests of the child, may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare

        In Matter of Ajmal I v Latoya J, --- N.Y.S.3d ----, 2022 WL 11379771, 2022 N.Y. Slip Op. 05912 (3d Dept.,2022) pursuant to a February 2012 order, the mother was awarded sole legal and physical custody of the child, while the father, who had failed to appear was granted the right to petition for custody and/or visitation in the future. The father left New York in 2009 and had not resided in the state since. The parties’ relationship had generally been tense. Given the father’s prior menacing and assaultive behavior toward the mother, she remained afraid of him and refused to give him her address. In November 2019, the mother learned that the father had offered money on social media to anyone who gave him the mother’s address, then posted that he had obtained the address and would “[s]ee [her] soon.” The mother filed a family offense petition seeking an order of protection against the father. The father responded by filing a custody modification petition and seeking, for the first time since the issuance of the 2012 custody order, visitation with the child. Family Court issued an order of protection in favor of the mother. Family Court then conducted a fact-finding hearing on the father’s modification petition, and granted the  father two hours of supervised visitation. 

The Appellate Division agreed with the mother and the attorney for the child that there was no basis for the award of visitation here. It reversed and dismissed the father’s petition in its entirety.  It held that while visitation with a noncustodial parent is presumed to be in the best interests of the child, that “presumption may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare. This standard of substantial proof should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption by a preponderance of the evidence. ( Matter of Granger v. Misercola, 21 N.Y.3d 86, 92, 967 N.Y.S.2d 872 [2013]). As such, the party opposing visitation will meet his or her burden with sworn testimony or documentary evidence that visitation would be harmful to the child or that the noncustodial parent has forfeited the right of access. It was undisputed that the father had not lived with the child in over a decade and had only infrequently visited the child due to, among other things, his moving out of the area and frequently relocating around the United States. The father made no effort to seek a formal award of visitation until 2019, more than seven years after the issuance of the 2012 custody order and over two years after he had last seen the child. This failure by the father to seek a visitation order or otherwise “avail himself of opportunities for visitation over a lengthy period of time  is appropriately taken into account in considering whether visitation is appropriate. Moreover, the mother testified as to how the father behaved in an irresponsible and harmful manner on the occasions when he did interact with the child. The mother described how, during a 2014 visit with the child during his winter break from school, the father cut off contact with her and left the child with relatives so that he could attend a party and travel to New York City, leaving the mother unaware of the child’s whereabouts until the child called her several days later. The father did not see the child again until a 2017 family trip to an amusement park, and the mother testified that he upset the child then by, among other things, live streaming the visit, including the child’s personal conversations, over social media. The mother further set forth how the father did not have frequent electronic contact with the child after that visit and, when that contact did occur, the child was upset by it. The attorney for the child confirmed that the teenage child was upset by interactions with the father for a variety of reasons and did not wish to see him. The child’s preference to have no in-person contact with the father was not dispositive, but is entitled to “considerable weight” given the child’s age . The foregoing satisfied the mother’s burden of establishing that any visitation with the father would be harmful to the child.


Change in circumstances standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. Fundamental purpose” of Lincoln hearing is to ascertain a child’s preferences and concerns.  

In Theodore P v Debra P, 2022 WL 11378159 (3d Dept.,2022) pursuant to a March 2018 separation agreement, which was to be incorporated but not merged into a subsequent judgment of divorce, the parties agreed to joint legal custody of the child and to share physical custody on a “substantially equal basis in a mutually acceptable manner.” The father commenced a divorce action in November 2019 requesting that relief, while the mother sought sole legal and physical custody. The Appellate Division rejected the father’s argument that the Supreme Court erred in proceeding directly to a best interests analysis without first considering whether a change in circumstances occurred since execution of the separation agreement. A party seeking to modify a judicially sanctioned custody arrangement must make a threshold showing of a change in circumstances that warrants an inquiry into whether modification of the arrangement is in the child’s best interests. However, that standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. As such, the separation agreement was but a factor to consider in resolving the custody dispute. It followed that the court did not err in denying the father’s motion for a directed verdict based upon the mother’s alleged failure to demonstrate changed circumstances.

The Appellate Division rejected the fathers argument that Supreme Court abused its discretion in holding a Lincoln hearing because there was no trial testimony requiring corroboration by the child. Corroboration of trial testimony and documentary evidence may be “a recognized purpose of a Lincoln hearing,” but the “fundamental purpose” of such a hearing “is to ascertain a child’s preferences and concerns.” It concluded that the Lincoln hearing was a provident exercise of the court’s discretion.


Supreme Court

Supreme Court holds that in determining the best interests of a companion animal under DRL § 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal

In L.B., v. C.C.B., --- N.Y.S.3d ----, 2022 WL 7855133, 2022 N.Y. Slip Op. 22320 (Sup Ct, 2022) an action for a divorce the parties were married for ten years. The Supreme Court pointed out that the sole significant asset contested by the parties was  custody and possession of their two dogs. It observed that effective October 25, 2021, DRL § 236 [B] [5] [d] [15] provides the  standard to apply in pet custody cases. It  requires courts to consider “the best interest” of a companion animal when awarding possession in a divorce or separation proceeding. It held that in determining the best interests of a companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive. It held that in determining equitable distribution of the parties’ companion animals, the court was guided by what is in the doges best interest. In weighing the factors relevant to the dogs best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (citing “see generally” Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). After weighing the factors that would further the dogs best interest, including factors such as which party was primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and the quality of the home environment as one in which the dogs would “live, prosper, love and be loved,” as well as evaluating the testimony, character and sincerity of the parties, the court found that it was in the dogs best interest to remain together in Defendant’s sole care. The care and custody of the parties’ Rottweilers was awarded to Defendant.


October 12, 2022

Appellate Division, First Department

Law of the case doctrine did not bar defendant’s second attorney’s fees application, which is expressly permitted by DRL § 237(a) and was based on new evidence and circumstances

In Cohen v Cohen, --- N.Y.S.3d ----, 2022 WL 4830598 (Mem), 2022 N.Y. Slip Op. 05498 (1st Dept.,2022) the Appellate Division affirmed an order which, inter alia, granted defendant wife’s motion for a second interim award of counsel fees in the amount of $600,000. It found that under the facts and circumstances presented here, the court providently exercised its discretion. The factors considered include the scope and complexity of the financial issues presented, the parties’ assets and liabilities, as sworn to in their respective statements of net worth, and the prior determination that plaintiff husband, who controlled much of the parties’ real estate holdings and interest in a cosmetics business, was the monied spouse. The discretionary law of the case doctrine did not bar defendant’s second attorney’s fees application, which is expressly permitted by section 237(a) of the Domestic Relations Law and was based on new evidence and circumstances.
The phrase “consummation of the anticipated marriage of [the parties] is a condition precedent to the enforceability of this Agreement”  referred to the marriage ceremony anticipated by the parties when they entered into the agreement 

In Fort v Haar, --- N.Y.S.3d ----, 2022 WL 6577794, 2022 N.Y. Slip Op. 05660(1st Dept.,2022)  In August 2014, the parties entered into a prenuptial agreement, and on February 14, 2015, they were married before a rabbi. The prenuptial agreement contained a section entitled “MARRIAGE -A CONDITION PRECEDENT AND EFFECTIVE DATE,” which provided, “consummation of the anticipated marriage of [the parties] is a condition precedent to the enforceability of this Agreement. If [the parties] do not marry, this Agreement shall have no effect.... This Agreement is made in consideration of, and is conditioned upon, [the parties] entering into a valid ceremonial marriage with each other, and it shall become effective as of the date of that marriage.” After the wife commenced this divorce action, she sought a declaration that the agreement was not enforceable, arguing that a condition precedent was the parties’ “consummating the anticipated marriage,” which she asserted was understood to mean having engaged in marital sexual relations. The husband opposed and sought a declaration that the agreement was enforceable as of the date of the marriage. He also disputed the wife’s factual assertions that the parties had not had sexual relations since the date of the marriage. The Appellate Division concluded that  as used in this prenuptial agreement, the phrase clearly and unambiguously referred to the marriage ceremony anticipated by the parties when they entered into the agreement. While the word “consummation” connotes sexual relations in certain contexts, such as annulment proceedings, that is not the only meaning of the word, which may simply mean achieve or fulfill (see Black’s Law Dictionary [11th ed 2019]). The plain meaning of “consummation,” in the context of the section titled “Marriage – a Condition Precedent and Effective Date” and defining the effective date of agreement as the date of the parties’ marriage, is consummation or fulfillment of the parties’ intention to enter into a valid “marriage.” Reading the contract as a whole, this interpretation of the section effectuates the parties’ expressed intention to fix their respective rights accruing upon marriage and to avoid unnecessary and intrusive litigation in the event of divorce, and sets an ascertainable date for determining the effectiveness and enforceability of the prenuptial agreement. Furthermore, the wife’s acceptance of benefits under the terms of the prenuptial agreement foreclosed her from questioning its enforceability (see Markovitz v. Markovitz, 29 AD3d 460, 461 [1st Dept 2006]). The parties’ conduct in executing a modification agreement further underscored that they believed it was in force and effect (Federal Ins. Co. v. Americas Ins. Co., 258 A.D.2d 39, 44 [1st Dept 1999]).
 


Law Firm  was not entitled to recover the counsel fees it incurred in litigating its fee claim against former client in absence of any agreement, statute, or court rule that would authorize such a recovery
In Lorne v Lorne, --- N.Y.S.3d ----, 2022 WL 5234633, 2022 N.Y. Slip Op. 05593 (1st Dept.,2022) the Appellate Division held that Fox Rothschild was entitled to recover its unpaid fees because it substantially complied with applicable court rules regarding attorneys representing clients in domestic relations matters (Uniform Rules for Trial Cts [22 NYCRR] §§ 1400.2, 1400.3; see Edelman v. Poster, 72 A.D.3d 182, 184, 894 N.Y.S.2d 398 [1st Dept. 2010]). Although the wife claimed that the retainer letter did not include 8 of 13 provisions that are mandated to appear in a retainer letter (see 22 NYCRR 1400.3), either the omitted provisions addressed matters that were not relevant to the wife in any event, or the wife was made aware of those provisions through the statement of client’s rights and through her own experiences in this proceeding. However, the wife’s position that Fox Rothschild was not entitled to recover the counsel fees it incurred in litigating its fee claim against her was  persuasive in light of the firm’s failure to cite any agreement, statute, or court rule that would authorize such a recovery (see Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989]).
 

Appellate Division, Second Department


A court opting to forgo a plenary custody modification hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision.

In Matter Randall v. Diaz,, --- N.Y.S.3d ----, 2022 WL 4490760 (Mem), 2022 N.Y. Slip Op. 05322 (2d Dept.,2022) the Family Court, without holding a plenary hearing, granted the father’s petition, modified the existing custody order and awarded the father sole physical custody of the children. The Appellate Division held that custody determinations should generally be made only after a full and plenary hearing and inquiry’. Where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. While a hearing is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody a court opting to forgo a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision. The record demonstrated disputed factual issues so as to require a hearing on the issue of physical custody. Moreover, the Family Court failed to articulate the factors and evidence material to its determination. It remitted for a new hearing and determination.


Under Family Court Act § 846–a, the court may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful. The reasonable amount and nature of the claimed services must be established at an adversarial hearing

         In Matter of Sicina v.  --- N.Y.S.3d ----, 2022 WL 5064723, 2022 N.Y. Slip Op. 05535 (2d Dept.,2022, the Family Court, inter alia, found that Gorish had willfully violated an order of protection and granted the violation petition. The court also extended the order of protection and directed Gorish to pay counsel fees to the petitioner of $1,000. The Appellate Division affirmed. Family Court’s determination that Gorish willfully violated the order of protection was supported by clear and convincing evidence in the record. Family Court Act § 846–a authorizes the court to enter a new order of protection if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order. Contrary to Gorish’s contention, conduct constituting a violation of the order of protection need not necessarily constitute a separate family offense in order for the court to have jurisdiction over the violation. Under Family Court Act § 846–a, the court may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful. The award of counsel fees is committed to the discretion of the Family Court. The reasonable amount and nature of the claimed services must be established at an adversarial hearing. Here, while the Family Court providently exercised its discretion in awarding counsel fees to the petitioner, the court erred in determining the amount of the counsel fees without a hearing. It remitted the matter to the Family Court, for a hearing to determine the amount of reasonable and necessary counsel fees the petitioner incurred in connection with her violation petition and the entry of an appropriate order thereafter.


Appellate Division, Fourth Department


A movant contending that a pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and evidence to demonstrate conclusively that the plaintiff does not have a cause of action

In Stuber v Stuber --- N.Y.S.3d ----, 2022 WL 5406402, 2022 N.Y. Slip Op. 05641 (4th Dept., 2022) Plaintiff commenced an action seeking to set aside a property settlement agreement (agreement), which was incorporated but not merged into the parties’ judgment of divorce, on grounds of fraud, undue influence, unconscionability, and duress. The Appellate Division reversed an order that, inter alia, denied defendants motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (5), and (7). It held that a movant contending that a pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and evidence to demonstrate conclusively that the plaintiff does not have a cause of action. Here, plaintiff’s vague allegations that defendant failed to make full financial disclosure when the agreement was entered into were belied by the evidence produced in defendant’s motion papers. Thus, it concluded that the agreement, together with the evidence submitted by defendant, flatly contradicted plaintiff’s allegations that she was not provided with complete disclosure regarding the subject assets at the time she executed the agreement. Further, when confronted with defendant’s motion to dismiss, plaintiff failed to come forth with any facts or circumstances” supporting her allegations. Inasmuch as plaintiff only vaguely contended, in response to the motion, that she learned after the agreement was executed that defendant failed to make disclosure of marital financial information and inasmuch as her complaint contains no facts to support those allegations, the complaint also failed to state a cause of action to rescind the agreement based on unconscionability, fraud, or duress and undue influence. 




September 28, 2022


Appellate Division, First Department


Where an account has been stated by a law firm, the firm is not required to establish the reasonableness of its fees 

  In Garr Silpe, P.C. v Pam Thur Weir, --- N.Y.S.3d ----, 2022 WL 4474597, 2022 N.Y. Slip Op. 05271 (1st Dept.,2022) the Appellate Division affirmed a judgment which awarded the plaintiff $87,993.92, counsel fees as there had been substantial compliance with the rules (see Edelman v Poster, 72 AD3d 182,184 [1st Dept 2010]; 22 NYCRR part 1400). The court properly granted plaintiff summary judgment on its claim for account stated. Plaintiff submitted evidence establishing that defendant did not object to the bills and invoices within a reasonable time, and had in fact made partial payments. Defendant failed to proffer any proof raising a triable issue of fact. Defendant’s challenge to the reasonableness of the fees was unavailing. Where an account has been stated by a law firm, the firm is not required to establish the reasonableness of its fees since the client’s act of holding the invoices without objection constitutes an acquiescence to the correctness of the invoices (see Shaw v Silver, 95 AD3d 416, 416-417 [1st Dept 2012]).


Appellate Division, Second Department 


Second Department holds that where the custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent


       In Matter of Smisek v DeSantis, 2022 WL 4361153 (2d Dept.,2022) in adjudicating a child support petition filed by the mother of the children, the Support Magistrate and the Family Court agreed with the father’s contention that the mother could not be awarded child support because a strict counting of the parties’ custodial overnights with the children rendered him the custodial parent. After a trial, the Family Court issued a final order of custody awarding the parties joint legal custody and shared parenting time. The parenting time schedule in the final order of custody was as follows: during the months of September through June, the father had parenting time with the children from Sunday at 8:00 p.m. through Wednesday at 9:00 a.m., as well as on alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. The mother had parenting time during those months from Wednesday at 9:00 a.m. through Friday at 9:00 a.m., and alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. During the months of July and August, the mother had parenting time from Monday at 9:00 a.m. through Thursday at 9:00 a.m., as well as alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m. The father had parenting time during those months on alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m., as well as one period of seven consecutive days. The parties alternated custody on all other school breaks and holidays. In its decision after trial, which set forth the same parenting time schedule, the Family Court stated that it was giving “residential custody” to the father “solely for the purpose of determining the children’s school district.” 

The Support Magistrate, examining the relevant law, perceived a split of authority between the Appellate Division, First and Third Judicial Departments, on the one hand, and the Appellate Division, Fourth Judicial Department, on the other, with no precedent from the Second Department, as to the method of determining which parent was the custodial parent for purposes of child support in a shared custody arrangement. Following the First Department’s decision in Rubin v. Della Salla, 107 A.D.3d 60, 964 N.Y.S.2d 41, the Support Magistrate concluded that the parent who has the greatest number of custodial overnights is the parent considered to have custody of the child the majority of the time and, therefore, is the custodial parent for child support purposes. Since the father had more custodial overnights, the Support Magistrate granted the father’s motion pursuant to CPLR 3211(a) to dismiss the mother’s petition for child support and dismissed the proceeding. The mother filed objections to the Support Magistrate’s order, arguing for a more flexible approach that would award child support to the spouse with the lower income where the parties enjoyed approximately equal parenting time. The Family Court, however, agreed with the Support Magistrate, and denied the mother’s objections. The mother appealed.
 
  The Second Department surveyed the relevant case law in all of the Departments. It rejected that the father’s contention that status as the custodial parent must be determined based upon a strict counting of custodial overnights and that the Baraby rule only applies to a true 50/50 split of custodial overnights. While a strict counting of overnights might have the advantage of ease of application, it also has disadvantages. Most significantly, such a method does not always reflect the reality of the situation. It concluded that while counting custodial overnights may suffice in most shared custody cases, that approach should not be applied where it does not reflect the reality of the situation. Similarly, while it may be clear in most cases which parent’s share of the parenting time constitutes the majority of custodial time (citing Bast v. Rossoff, 91 N.Y.2d at 729 n. 3, 675 N.Y.S.2d 19, 697 N.E.2d 1009), the reality of the situation must also be considered where there is a closer division of parenting time. 

The Appellate Division found that under all of these circumstances, and considering the reality of the situation, including the overall amount of time each parent spends with the children, this was a case in which the “custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time” (Baraby v. Baraby, 250 A.D.2d at 204, 681 N.Y.S.2d 826). Thus, “the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent” . Since it had not been determined in this case which parent had the greater pro rata share of the child support obligation, it remitted the matter to the Family Court for further proceedings on the mother’s petition for child support, including calculation of an appropriate award of support to her in the event that she is determined to have the lesser pro rata share of the child support obligation.



September 21, 2022

Where a parent makes a voluntary custodial arrangement for his or her child, the courts may not permit a nonparent to interfere with that arrangement in the absence of extraordinary circumstances.

         In Matter of Leslie LL v Robert NN, --- N.Y.S.3d ----, 2022 WL 4239598, 2022 N.Y. Slip Op. 05189 (3d Dept.,2022) following the mother’s death in 2017, custody petitions for the son and daughter were filed by the mother’s friend, respondent Shaquila PP.and the children’s maternal grandmother, respondent Kathy OO..Family Court granted temporary custody to the grandmother, upon consent of the children’s fathers and the friend. Family Court conducted a hearing and ultimately dismissed the petitions on the basis that petitioners had failed to meet their burden of demonstrating extraordinary circumstances. The Appellate Division affirmed. It pointed out that the boy’s father testified at the hearing that he consistently paid child support to the mother while she was alive and saw the boy frequently during those years, as often as two to three times a week. He also testified that he was unable to assume custody because he ha physical disabilities and lived in public housing that did  not allow children. Therefore, following the mother’s death, the boy’s father formulated a plan for the boy to live with the grandmother along with his sister, with whom he has a close bond. He said he currently visited with the boy every weekend and attended all of his athletic events. Family Court noted that the children have been the only constant in each other’s lives and are very close. The court further observed that the children are being raised together by the grandmother in a loving home. The Appellate Division held that where, as here, a parent makes a voluntary custodial arrangement for his or her child, the courts may not permit a nonparent to interfere with that arrangement in the absence of extraordinary circumstances. An extraordinary circumstances inquiry involves “consideration of the cumulative effect of all issues present in a given case” and requires the nonparent to establish “that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody” or other like circumstances. If , and only if, the nonparent establishes extraordinary circumstances may a court then consider what custodial arrangement serves the best interests of the child”. It held that  extraordinary circumstances may not be established merely by showing that the child has bonded psychologically with the nonparent”.


September 16, 2022

Appellate Division, First Department


Since there is no reason an equitable distribution award cannot be made to the plaintiff on a contingent basis, the court should have awarded the plaintiff 50% of so much of the security deposit as is returned by the landlord upon the termination of the lease on the marital residence.

In Malkani v Malkani, --- N.Y.S.3d ----, 2022 WL 3904656, 2022 N.Y. Slip Op. 05082 (2d Dept.,2022) the parties were married on December 31, 2007, and had three minor children. The action for a divorce was commenced on August 8, 2017. After a nonjury trial, the Supreme Court awarded the plaintiff maintenance and child support, commencing on the first day of the month following the entry of the judgment of divorce, rather than being retroactive to the date of the commencement of the action, when the plaintiff first sought maintenance and child support. In computing maintenance and child support, the court noted that the defendant was employed at an annual salary of $235,000 and, based upon the potential of a bonus, imputed to him a total annual income of $270,000. The court noted that the plaintiff had been offered full-time employment with an annual salary of $85,000 by her current employer, and imputed that income to her. The court imputed additional annual income of $84,000 to the plaintiff, on the ground that her father was paying the rent for her current residence. Maintenance and child support were based upon imputed income of $270,000 for the defendant and $169,000 for the plaintiff.  Based upon those figures, the computation of maintenance pursuant to Domestic Relations Law § 236(B)(6) resulted in a negative number. The Supreme Court nevertheless awarded the plaintiff maintenance of $1,000 per month for a period of 12 months. Child support was awarded to the plaintiff based upon the defendant’s imputed income of $270,000 and the plaintiff’s imputed income of $169,000, utilizing the statutory cap of $148,000 for combined parental income. Based on the income imputed to each party, the court determined that the defendant would be responsible for 61% of all statutory add-on expenses and the plaintiff would be responsible for 39% of such expenses. 
 
The Appellate Division held that a party’s maintenance and child support obligations commence, and are retroactive to, the date the applications for maintenance and child support were first made,” which, in this case, was the date of the commencement of this action and that the award of spousal maintenance and child support to the plaintiff should have been retroactive to August 8, 2017.
 
The Appellate Division held that imputing an additional $84,000 in annual income to the plaintiff, based upon the fact that her father paid her rent so she could live apart from the defendant during the pendency of this action, was an improvident exercise of discretion. This gift was made by the plaintiff’s father after the action was commenced, and was at least in part a response to the fact that the defendant was not making any pendente lite support payments Moreover, the term of the lease for the plaintiff’s residence was only 19 months, commencing on December 1, 2017. The plaintiff’s father had no legal obligation to provide his daughter with housing, and there was no indication in the record that his payment of rent would continue once the 19–month lease period ended.. Under these circumstances, it was not appropriate to impute the rental payments made by the plaintiff’s father as income to the plaintiff.
 
The Supreme Court declined to award the plaintiff an equitable share of the security deposit of $12,000 given to the landlord of the marital residence, reasoning that the plaintiff did not prove that the deposit was paid with marital funds and that, since the lease of the marital residence had not ended, it was not known whether the security deposit would be returned. However, there was no indication in the record that the security deposit, which was given after the parties had been married for approximately seven years, somehow derived from separate property, and thus, the presumption that the security deposit was paid with marital property, and therefore was subject to equitable distribution, was not overcome. Since there was no reason an equitable distribution award cannot be made to the plaintiff on a contingent basis, the court should have awarded the plaintiff 50% of so much of the security deposit as is returned by the landlord upon the termination of the lease on the marital residence.
 
 Appellate Division, Third Department
 

Judiciary Law § 14 provides that  A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel. This prohibition is absolute and establishes a bright -line disqualification rule.

  In Matter of John II, v Kristen JJ., --- N.Y.S.3d ----, 2022 WL 4098523, 2022 N.Y. Slip Op. 05132) (3d Dept.,2022) pursuant to a November 2012 order issued upon the father's default, the mother was granted sole legal and physical custody of the children. Subsequently, in June 2017, the parties entered into an agreement through which the mother retained sole legal and physical custody of the children, and the father was "entitled to weekly supervised visitation. The  father filed a petition for modification of June 2017 order. He also sought Family Court's disqualification, noting that the November 2012 order listed "Keith M. Bruno" as the mother's counsel in those proceedings. Family Court denied the father's disqualification  motion. Following a fact-finding hearing where the mother was the only witness, Family Court dismissed the father's petition for failure to establish a prima facie case. The Appellate Division agreed with the father that  Family Court erred in denying his motion to have the court be disqualified from the matter. It observed that  "A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel" (Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1] [b] [i]). "This prohibition is absolute and establishes a bright -line disqualification rule". Although neither the Judiciary Law nor the Rules Governing Judicial Conduct define "an action, claim, matter, motion or proceeding" (Judiciary Law § 14), Black's Law Dictionary defines a "claim" as "[t]he assertion of an existing right . . . to an equitable remedy, even if contingent or provisional" (Black's Law Dictionary [11th ed 2019] , claim). When the father moved for Family Court's recusal and/or disqualification, the judge explained that he did not recall such representation from eight to nine years prior. The November 2012 default order and the order on appeal both dealt with the custodial arrangement between the same two parents regarding the same three children. Under these circumstances, where the two proceedings involved the same claim of custody, guardianship, or visitation for the same children, Family Court was statutorily disqualified from the proceedings. The order was reversed and the matter remitted before a different judge for a new fact-finding hearing.

Appellate Division, Fourth Department

The fact that testing has already been conducted when a court holds a hearing on equitable estoppel does not mandate reversal of a subsequent order determining paternity. A Support Magistrate cannot lawfully order a party to submit to genetic testing before the party is represented by counsel.

  In  Matter of Danielle E.P., v. Christopher N., 172 N.Y.S.3d 782, 2022 N.Y. Slip Op. 04841(4th Dept.,2022)  Respondent and petitioner-respondent (petitioner) had sexual relations in September 2015 and January 2016. At the time that petitioner gave birth to the child, she was in a relationship with another man who was identified as the child’s father on the birth certificate and who signed an acknowledgment of paternity. Shortly after the child was born, petitioner’s relationship with that man ended. Petitioner then informed respondent that he might be the child’s father and filed a paternity petition against him. Based on the acknowledgment of paternity, Family Court dismissed the petition. After the acknowledgment of paternity was vacated, petitioner commenced this proceeding. At the outset of the proceeding, the Support Magistrate ordered genetic marker testing, which established that respondent was the child’s biological father. The Support Magistrate thereafter transferred the matter to Family Court for a hearing on respondent’s defense of equitable estoppel. Following the hearing, the court adjudicated respondent to be the child’s father. The Appellate Division affirmed.

The Appellate Division observed that the court should consider paternity by estoppel before it decides whether to test for biological paternity. Nevertheless, the fact that testing has already been conducted when a court holds a hearing on equitable estoppel does not mandate reversal of a subsequent order determining paternity. Respondent had a full and fair opportunity to litigate his equitable defense, which the court rejected following the hearing, and  respondent did  not challenge the court’s determination that he failed to establish that equitable estoppel applied. Moreover, the court made clear that, notwithstanding the results of the genetic marker test, the paternity petition would have been denied had respondent met his burden of proof on equitable estoppel.

The Appellate Division rejected respondent’s contention that the Support Magistrate erred in ordering genetic testing before respondent was represented by counsel. Although a respondent in any proceeding under Family Court Act article 5 in relation to the establishment of paternity has a right to the assistance of  counsel  respondent cited no authority for the proposition that a Support Magistrate cannot lawfully order a party to submit to genetic testing before the party is represented by counsel.

  The Appellate Division rejected respondents contention that the court erred in denying his motion to vacate the order that adjudicated him to be the child’s father. Respondent’s claim of estoppel was based on the nature and extent of the relationship between the boyfriend and the child, and there was insufficient evidence that the Petitioners boyfriend ever held himself out as the child’s father.
 


Supreme Court


Where father’s adjusted gross income was in excess of $2 million a year it was inappropriate to award to guideline maintenance and child support only up to the cap. Court utilized an adjusted cap of $800,000 for its calculations, or approximately one-third of the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d 617 (1st Dept 2017)

In E.A., v. J.A., Slip Copy, 2022 WL 3905783 (Table), 2022 N.Y. Slip Op. 50833(U) 2022 WL 3905783 (Sup. Ct., 2022) the parties were married on June 11, 2017 in New York. This divorce action was commenced on April 18, 2022. There were  two children of the marriage: one born in October 2018, and the other born in April 2021. The marital residence, where the parties resided with their two children, was a townhouse valued at approximately $8 million located in the Upper East Side of Manhattan. The Husband, who was 31, was the co-vice president of, a telecommunications company co-founded by his father. The Wife, who was 27, did not make an income and has no assets. In the year of 2020, the Husband totaled an adjusted gross income of $2,604,004. In 2021, the year before this action was commenced, the husband earned approximately $2,587,530.62. The parties drive luxury automobiles, had access to numerous perquisites through Defendant’s corporation and spend thousands of dollars per month on clothing and accessories including from retailers such as Bergdorf Goodman, Chanel, and Bottega Venetta. Their children attended a private preschool, the parties traveled by private jet on high end vacations throughout the world, had household staff, regularly ate at luxury restaurants and spent thousands of dollars on Kosher groceries, and summered in Deal, New Jersey at the $7 million mansion owned by Defendant’s family. The Court determines it was inappropriate to award the guideline maintenance and child support only up to the cap. It utilized an adjusted cap of $800,000 for its calculations, or approximately one-third of the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d 617 [1st Dept 2017][upholding use of $800,000 adjusted cap]). Using this cap the sum total Defendant would have to pay to Plaintiff each month would be $28,894.69. However, the Court found that this award was too high relative to the total amount spent in 2021, and in light of the significant expenses and carrying costs already being covered by Defendant, including the parties’ townhouse, as well as paying the childcare staff and add-on expenses. The Court found that an amount of $24,000 in unallocated support adequately reflected a support level that met the needs and continuation of the children’s and Plaintiff’s lifestyle. The award was unallocated because, many of the expenses were intertwined and at this early phase of the action more discovery was needed to fully understand the expenses of the parties and children.
 
Defendant was ordered to pay the Plaintiff’s interim counsel fees of $250,000 and to pay Plaintiff’s interim expert fees of $75,000 subject to reallocation at trial and without prejudice to further applications.




September 1, 2022


Appellate Division, Second Department

A petitioner who does not sign an acknowledgment of paternity has standing pursuant to Family Court Act § 522 to seek an adjudication that he was the legal father of the child.

In Matter of Escobar v Pagan, --- N.Y.S.3d ----, 2022 WL 3221775, 2022 N.Y. Slip Op. 04912 (2d Dept.,2022) the subject child was born in September 2013, to Milagros P. ( mother). On September 13, 2013, the mother and Escobar signed an acknowledgment of paternity which stated that Escobar was the child’s father.  The mother also was in an intimate relationship with Michael M.(Michael), and in October 2013 she agreed to a private DNA test. The results of that test indicated that Michael was the child’s biological father. Michael voluntarily paid child support to the mother in the amount of $600 per month. The mother also allowed Michael to have regular visitation with the child. In 2019, Escobar commenced a proceeding for parental access with the child, while Michael commenced a paternity proceeding to have himself declared the child’s father. Family Court directed the mother, Escobar, and Michael to undergo genetic marker testing. Based on the results of that testing, which indicated that Michael was the child’s biological father, the court issued an order adjudicating Michael to be the child’s father, an order vacating the acknowledgment of paternity, and an order dismissing Escobar’s petition for parental access for lack of standing. The Appellate Division affirmed. It held that the best interests of the child were served by adjudicating Michael’s status, since the child already considered Michael to be her father. Further, the evidence adduced at the hearing indicated that Michael provided a stable resource for the child. Therefore, equitable estoppel was not applicable here. Although a petitioner who does not sign an acknowledgment of paternity does not have standing to challenge the acknowledgment of paternity pursuant to Family Court Act § 516–a, Michael nevertheless had standing pursuant to Family Court Act § 522 to seek an adjudication that he was the legal father of the child. Once the Family Court determined that Michael was entitled to such an adjudication pursuant to Family Court Act § 522, it properly exercised its authority to vacate the acknowledgment of paternity executed by Escobar. In view of the order adjudicating Michael to be the child’s father, Escobar’s petition for parental access was properly dismissed for lack of standing.


A person who is not a party to a judicial surrender and is not authorized by statute to file a petition seeking to vacate a judicial surrender lacks standing to file such a petition.
 
In Matter of Elizabeth W,--- N.Y.S.3d ----, 2022 WL 3640856, 2022 N.Y. Slip Op. 05039 (2d Dept.,2022) the child Elizabeth W. appealed from an order of the Family Court, which denied her petitions to vacate the judicial surrenders of Gabriella W. and Aleah W., denied those branches of the mother’s petition which sought the same relief, and dismissed the paternal grandfather’s petitions for custody of Gabriella W. and Aleah W., contending that all three children should reside together with the paternal grandfather. The Appellate Division held, inter alia, that appellant, was aggrieved by the portion of the order denying her own petitions to vacate the judicial surrenders of Gabriella W. and Aleah W., since, in those petitions, the appellant “asked] for relief but that relief [was] denied in whole or in part”. Nonetheless, the appellant was not a party to, and was not the subject of, the judicial surrenders of Gabriella W. and Aleah W. The statutes governing the Family Court’s review of a failure of a material condition of a judicial surrender authorize the filing of petitions by the relevant agency, by the parent, and by the “attorney for the child ” (Family Court Act § 1055–a[a]; see Social Services Law § 383–c[6][c] [petition may be filed by agency, parent, or “law guardian for the child”]). The statutory reference to “the child”  means the child who is the subject of the judicial surrender that is under review. Since adoption in this State is solely the creature of ... statute, statutory provisions regarding adoptions must be strictly construed. Thus, a person who is not a party to a judicial surrender and is not authorized by statute to file a petition seeking to vacate a judicial surrender lacks standing to file such a petition. Although the appellant had standing pursuant to Domestic Relations Law § 71 to apply for sibling visitation(and she was, in fact, granted sibling visitation), seeking to become involved in litigating a parent’s judicial surrender of a sibling for the purpose of adoption is an entirely different matter. Since the appellant was not a party to the judicial surrenders of Gabriella W. and Aleah W., and was not a person authorized to file a petition seeking to vacate either of those judicial surrenders, she did not have standing to file such petitions. Therefore, on that basis, her petitions were properly denied.


Appellate Division, Third Department


Allegations in the petition were sufficient to warrant a hearing to determine if the Court had emergency jurisdiction to make an initial child custody determination under Domestic Relations Law § 76–c

In Matter of Chester HH., v. Angela GG.,--- N.Y.S.3d ----, 2022 WL 3449008, 2022 N.Y. Slip Op. 05002 (3d Dept.,2022)   the Appellate Division held that the allegations set forth in the petition were sufficient to warrant Family Court to conduct a hearing to determine if the Court had emergency jurisdiction to make an initial child custody determination (see Domestic Relations Law § 76[1][a]-[d])., Domestic Relations Law § 76–c provides that “New York courts have temporary emergency jurisdiction if the child is present in this state and it is necessary in an emergency to protect the child, a sibling or parent of the child. ’The father’s petition included allegations concerning, among other things, that the mother engaged in a pattern of neglect by failing to properly dispose of garbage – causing a rodent infestation in the home; that the home was without electricity and hot water for lengthy periods of time on numerous occasions; that the mother has mental and physical conditions rendering her unable to care for the house or the child; that the mother keeps the child out of school to ensure that the child is available to attend to her needs; that the mother failed to take the child to the doctor for approximately four years; and that she has verbally and mentally abused the child. The petition further contained allegations that the child’s maternal uncle punched holes in the walls of the mother’s residence while the child was present, was verbally abusive toward the child – including regarding the child’s sexual orientation – and that the uncle may have sexually assaulted and/or raped the child on two occasions. Finally, the petition alleged that the child’s maternal grandmother was verbally abusive and unsupportive of the child’s gender identity. Family Court erred in relying on  unsigned and redacted MDHHS report, containing vague and contradictory hearsay statements made by an MDHHS caseworker, as support for its decision not to conduct a hearing. The record confirmed that the MDHHS report was the result of a less-than-thorough investigation that failed to address all of the father’s allegations.


Appellate Division, Fourth Department


Collateral estoppel applies only when  the issues in both proceedings are identical .The doctrine of res judicata requires “a valid final judgment” on a prior action between the parties. A divorce settlement tainted by duress is void ab initio not merely voidable, and is, not subject to ratification by the mere passage of time.

In Nagi v Ahmed, 207 A.D.3d 1149, 172 N.Y.S.3d 286, 2022 N.Y. Slip Op. 04461
(4th Dept.,2022) Plaintiff commenced an action seeking to vacate in part an amended judgment of divorce entered in 2018 and to set aside the parties’ property settlement agreement, which was incorporated but not merged into the amended judgment of divorce. The complaint alleged, among other things, that plaintiff signed the agreement due to “extraordinary duress and pressure” exerted on her by defendant, among other people, and that the terms of the agreement were so favorable to defendant as to render it unconscionable and thus unenforceable. Defendant cross-moved for summary judgment on his affirmative defenses seeking to dismiss the complaint on the grounds of collateral estoppel and ratification. Supreme Court granted the cross motion, concluding that plaintiff was collaterally estopped from challenging the agreement because she sought similar relief by way of a motion she filed in July 2018 seeking to modify certain provisions of the agreement and to enforce others. The Appellate Division reversed. It held that collateral estoppel applies when (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. Here, the motion that plaintiff filed in July 2018 did not seek to vacate the amended judgment of divorce or to set aside the agreement. The issues in this action were not identical to those raised by plaintiff in her motion, and defendant thus failed to meet his initial burden on his cross motion of establishing that collateral estoppel precludes plaintiff from challenging the agreement. 

The Appellate Division rejected the contention that to the extent that defendant contended, as an alternative ground for affirmance, that this action was barred by res judicata because plaintiff could have pursued her current claims in the 2018 motion, we reject that contention. A party seeking to set aside a settlement agreement must do so in a plenary action; such relief cannot be obtained on motion. Moreover, although plaintiff did commence a plenary action in August 2018 to set aside the agreement on grounds of fraud, duress, and overreaching, she abandoned that action, and a final judgment was never entered on it. The doctrine of res judicata requires, among other things, “a valid final judgment” on a prior action between the parties which was lacking here. There never had been a determination on the merits of plaintiff’s claims that she signed the agreement under duress and that the agreement is unconscionable.
 
The Appellate Division rejected defendant’s contention, raised as an alternative ground for affirmance, that the court properly granted the cross motion because plaintiff ratified the agreement by acquiescing in it and receiving the benefits under it for a considerable period of time. A divorce settlement tainted by duress is void ab initio not merely voidable, and is, therefore, not subject to ratification by the mere passage of time” (Perl v. Perl, 126 A.D.2d 91, 96, 512 N.Y.S.2d 372 [1st Dept. 1987]). 


Nothing intrinsically dangerous about leaving two children to eat and watch television while the mother was in the bathroom with the door open.

  In Matter of Silas W, 171 N.Y.S.3d 290, 2022 N.Y. Slip Op. 04506 (4th Dept.., 2022) the Appellate Division agreed with the mother that petitioner failed to establish that she neglected the children. Although “[a]n isolated accidental injury may constitute neglect if the parent was aware of the intrinsic danger of  the situation” here, there was nothing intrinsically dangerous about leaving two of the children to eat and watch television while the mother was in the bathroom with the door open. The record established that the mother knew that one of her children was sometimes aggressive towards his younger siblings, but there was no evidence in the record that she was aware that he may open a locked window, remove the screen, and drop his sibling from a height of two stories. In making that determination, it noted that the window involved in the incident was not deemed dangerous by a caseworker during a home visit less than a month before the incident.


Contentions raised for the first time in a reply brief are not properly before the Appellate Division

  In S.P., v. M.P., 207 A.D.3d 1213, 171 N.Y.S.3d 687 (4th Dept., 2022) the Appellate Division held that  contentions raised for the first time in a reply brief were not properly before the court  (see Matter of Carroll v. Chugg, 141 A.D.3d 1106, 1106, 34 N.Y.S.3d 848 [4th Dept. 2016]; Cunningham v. Cunningham, 137 A.D.3d 1704, 1705, 28 N.Y.S.3d 751 [4th Dept. 2016]). It also held that the  issues raised by the AFC were not properly before it where the AFC did not file a notice of appeal (see Matter of Noble v. Gigon, 165 A.D.3d 1640, 1641, 82 N.Y.S.3d 923 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941819 [2019]; Carroll, 141 A.D.3d at 1106, 34 N.Y.S.3d 848



Supreme Court


Court has discretion to limit, modify or vacate the automatic stay imposed by the posting of a Bond for payment of counsel fee award pending appeal

In B.N., v. M.N.,.2022 WL 3591083( Sup. Ct, 2022) this Court, awarded the Plaintiff $75,000.00 for interim counsel fees, The defendant posted a Bond to stay the payment pending appeal. Supreme Court held that it has the authority to limit, modify or vacate the stay imposed by the posting of the Bond, and it vacated the Bond. It held that staying enforcement of an award of interim counsel fees to the nonmonied spouse was, in and of itself, untethered from the intent of DRL § 237(a) and at odds with prevailing case-law. The Court found that the posting of the Bond with respect to the award of interim counsel fees as ordered by this Court functioned, in effect as a denial of the application for fees. (Citing Weschler v. Weschler, 8 Misc 3d 328 (Supreme Court New York County 2005). In Weschler, Justice Gische wrote that “...[t]he fact that the stay is automatic does not remove it from the purview of the court’s discretion to otherwise vacate, limit or modify the stay. Moreover, the statute expressly gives the court issuing the order appealed from such discretion...” It noted that in Karg v. Kern 125 AD3d 527 (1st Dept. 2015)., the First Department unanimously affirmed an Order of the New York County Supreme Court, which, inter alia, vacated an automatic stay obtained therein.


Veterans military disability retirement pay, and VA financial compensation are not subject to equitable distribution

In B.C., v. M.C., --- N.Y.S.3d ----, 2022 WL 3591082, 2022 N.Y. Slip Op. 22266 (Sup Ct, 2022) defendant’s request for an Order directing that the Plaintiff’s military disability retirement pay, and VA financial compensation were  subject to equitable distribution was denied. Plaintiff had medical issues that rendered her permanently disabled, entitling her to disability retirement benefits from the United States Coast Guard. The Court observed that ”Department of Defense Financial Management Regulation, Volume 7B . . . addresses and explains the retired pay system[.] Pursuant to § 290701 (C) (5) if the percentage of disability is chosen, then it is not part of disposable retirement pay. The Uniformed Services Former Spouse’s Protection Act (10 USC § 1408 (a) (4) (iii)) defines disposable retired pay as “the total monthly retired pay to which a member is entitled less amounts which in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list).” In 1982 Congress passed “the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408. Congress wrote that a State may treat veterans’ “disposable retired pay” as divisible property, i.e., community property divisible upon divorce. However, the new Act expressly excluded from its definition of “disposable retired pay” amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits.” (see Howell v Howell, 137 S Ct 1400 [2017]). The Third Department has held  “that a court in an action for divorce or separation cannot order as spousal maintenance the allocation of compensation received by a veteran derived from military pay waived in order for the retiree to receive veterans’ disability benefits.” (see Hoskins v Skojec, 265 AD2d 706 [3d Dept 1999]; Mills v Mills, 22 AD3d 1003 [3d Dept 2005]). VA benefits are awarded based solely on a disability that has resulted from injury or disease contracted in the line of duty and as such these benefits are separate property and are “not subject to equitable distribution[.]” (see Murphy v Murphy, 126 AD3d 1443 [4th Dept 2015]). 
 

Family Court


Under the Family First Prevention Services Act (FFPSA), which is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily the court must determine the most appropriate and least restrictive placement possible
 
In Matter of Felipe R.,172 N.Y.S.3d 350, 2022 N.Y. Slip Op. 22216 (Fam Ct, 2022) ACS filed a motion seeking an order that continued qualified residential treatment facility placement was necessary to adequately address the child’s needs.  A hearing was held pursuant to SSL § 393(2), F.C.A. § 353.7(3), § 756-b(3), § 1055-c(2), § 1091-a, and § 1097, through which the Family First Prevention Services Act (FFPSA), 42 U.S.C. § 672 and § 675a are codified in New York. This statute, in relevant part, is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily. The Court was asked to determine the most appropriate and least restrictive placement possible for Felipe, who had autism. The Court pointed out that in order to maintain his current placement, the Court must determine whether 1) Felipe’s needs can/cannot be met through a placement in family-based foster care; 2) a group placement is the most effective and appropriate placement; 3) placement is the least restrictive possible placement given Felipe’s needs; and 4) such placement is consistent with the long- and short-term planning goals in place for the subject child. The Court found that ACS  failed to meet its burden under FFPSA and FCA 1055-c.  Placement of the child alleged to be neglected in qualified residential treatment facility was not the  least restrictive placement possible and continued placement was not appropriate under Family First Prevention Services Act (FFPSA). Although the child was diagnosed with autism and struggled with self-soothing, hygiene, expressing his needs, and other basic tasks, until the filing of neglect petition, the child had been living with his mother and siblings where his basic needs were met without extensive additional services, and services that child received at facility were available in the community. Such placement was not consistent with the child’s short- or long-term needs, and, thus, child’s continued placement in facility was not appropriate under Family First Prevention Services Act (FFPSA). The  goal was for child to return home, the child was only ten years old and was among the youngest residents at facility, the child did not transition to group care easily, and the child, as shown through his connection to his current family, would benefit from long-term relationships. To find otherwise would essentially mean that any child suffering from relatively severe autism can only live in a group facility. It held that under the requirements of Family First, ACS must seek a therapeutic foster home or, if after the 1028 hearing is complete, Felipe is returned home, provide adequate at home services consistent with Felipe’s short- and long-term needs.

August 16, 2022


Appellate Division, First Department

Family Court has jurisdiction, in a juvenile delinquency proceeding, to entertain an application for the expungement of DNA evidence 

In Matter of Francis O.,170 N.Y.S.3d 71, 2022 N.Y. Slip Op. 03969 (1st Dept.,2022) the Appellate Division held that  in a proper case, Family Court has jurisdiction, in a juvenile delinquency proceeding, to entertain an application for the expungement of DNA evidence pursuant to Executive Law § 995–c(9)(b). It further found that under the facts presented, it had not been established that appellant abandoned the cup containing his DNA material or waived his privacy interest in the cup, and therefore had standing to challenge the taking of a sample of his DNA, which was obtained without his knowledge or consent and in violation of his constitutional and due process rights. It also found that under the totality of the circumstances, it was an improvident exercise of the court’s discretion to deny expungement of his DNA sample and all related information.

A permanency goal of free for adoption does not lead to a petition to terminate parental rights

In Matter of Mahkayla W, 206 A.D.3d 599, 170 N.Y.S.3d 551, 2022 N.Y. Slip Op. 04231(1st Dept.,2022) a neglect proceeding, the Appellate Division found that the father’s argument that his due process rights were violated by the change in the permanency goal was not grounded in the statute and would prejudice the subject children in obtaining permanency. A permanency goal of free for adoption does not lead to a petition to terminate parental rights, since the statute allows the court to adjudicate a particular goal yet direct the agency to engage in concurrent planning (see Family Court Act § 1089 [c][4][iii], [d][2][iv]).

Appellate Division, Second Department

Where a separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification


In Kirk v Kirk, --- N.Y.S.3d ----, 2022 WL 2962592, 2022 N.Y. Slip Op. 04718 (2d Dept.,2022) the  parties were married on September 16, 1984, and had three children. On January 9, 2007, the parties entered into a written separation agreement. The separation agreement, as modified, was incorporated but not merged into the judgment of divorce. The Appellate Division found that the defendant demonstrated that the plaintiff breached the terms of the parties’ agreement, as modified, by failing, inter alia, to pay the real estate taxes on the former marital residence and to reimburse her for expenses incurred relative to the utilities, gardening, maintenance, and repairs. It held that where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. In order to be unequivocally referable, conduct must be inconsistent with any other explanation.  Contrary to the plaintiff’s contention, he failed to allege acts of part performance that were unequivocally referable to the alleged oral agreement to modify the terms of the parties’ separation agreement sufficient to obviate the need for a writing.


Family Offense petition against Respondents Attorney properly dismissed for lack of subject matter jurisdiction.  Attorney functioning only as counsel excluded from the definition of “intimate relationship”

  In Matter Uzamire v. Idehen, --- N.Y.S.3d ----, 2022 WL 2962620 (Mem), 2022 N.Y. Slip Op. 04729 (2d Dept.,2022) petitioner commenced related family offense proceedings against her husband, Ehigie Uzamere  and against Uzamere’s attorney, Austin I. Idehen. Family Court, inter alia, without a hearing, dismissed the petition asserted against Idehen for lack of subject matter jurisdiction. The Appellate Division affirmed. The Family Court is a court of limited jurisdiction, and thus, it “cannot exercise powers beyond those granted to it by statute.” Pursuant to Family Court Act § 812(1)(e), the Family Court’s jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household.” The definition of “members of the same family or household” includes “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship.” Expressly excluded from the definition of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” (Family Ct Act § 812[1][e]). Petitioner conceded that Idehen was not related to her by consanguinity and she did not allege any interactions with Idehen other than when Idehen functioned as Uzamere’s counsel. Thus, the court properly dismissed the petition asserted against Idehen for lack of subject matter jurisdiction. 

Supreme Court was not required to hold a hearing on custody enforcement petition which did not seek any relief related to custody

In Soumare v White, 206 A.D.3d 661, 170 N.Y.S.3d 148, 2022 N.Y. Slip Op. 03519 (2d Dept.,2022) in an order dated October 14, 2016, the Supreme Court awarded custody of the subject child, born in 2013, to the mother and directed, inter alia, that the father would have parental access with the child every Sunday for four hours. In March 2021, the father filed a petition to enforce the order, asserting that the mother was violating the order by failing to cooperate with its parental access provisions. The petition alleged, among other things, that on a recent Sunday, when the father arrived 10 minutes late to pick up the child for parental access, the mother left the pick-up location with the child, did not permit the parental access to occur, and then failed to bring the child to the next four parental access sessions. The Supreme Court addressed the father’s petition by conducting two conferences, at which both parties made statements under oath. The court then issued an order dated April 28, 2021, which, in large part, restated the provisions of the order dated October 14, 2016. In addition, the order added one hour to the father’s weekly parental access sessions, and included a provision stating that “[t]here is a 15 min window for all pick up and drop off’s.” The Appellate Division affirmed. It held that the Supreme Court was not required to hold a hearing on his enforcement petition. The father’s petition did not involve a custody determination, which, as a general matter, “should be rendered only after a full and plenary hearing and inquiry”. The petition did not seek any relief related to custody, but rather alleged only that the mother failed to drop off the child for parental access as required by the order dated October 14, 2016, and thus sought enforcement of that order. The court, after eliciting sworn statements from both parties, fashioned a workable remedy by reminding both parties of their obligations, awarding the father an additional hour of parental access each week, and directing that a 15–minute lateness window would apply to both the father’s pick-up time and the mother’s drop-off time.



Appellate Division, Third Department


Improper to grant summary judgment motion where facts if established, raised issues concerning whether the wife was meaningfully represented during the abbreviated negotiations, and also raised an inference that the husband did not intend on engaging in a good faith negotiation of the agreement 

In Spiegel v Spiegel, 206 A.D.3d 1178 (3d Dept.,2022) the Plaintiff (husband) and defendant (wife) were married in February 2011 after a lengthy period of cohabitation beginning in 2001. The parties had four children together (born in 2007, 2009, 2010 and 2017). Two days before they were married, the parties executed a prenuptial. In June 2019, the husband commenced an action for divorce. The wife answered and asserted two counterclaims, seeking an award of maintenance and a judgment setting aside the agreement as invalid. Supreme Court deemed the agreement valid and dismissed the wife’s counterclaims. The Appellate Division held,, inter alia,  viewing the evidence in the light most favorable to the wife, there were issues of fact raised by the circumstances surrounding the execution of the agreement that preclude an award of summary judgment. Prior to the marriage there was a pronounced financial disparity between the husband and the wife, who had no assets at the time of the marriage and was previously employed by the state. After cohabitating for approximately 10 years, the parties decided to get married and, at the husband’s insistence, resolved to enter into a prenuptial agreement. According to the wife, she had no discussion or input on counsel of her choice, and simply was forwarded a retainer agreement and statement of client rights from her counsel’s office, which she was unable to open and never executed. After consulting with his counsel over several days, the husband approved an initial draft of the agreement, which was forwarded to the wife’s counsel on January 27, 2011. Thereafter, negotiations on the agreement between counsel began in earnest on February 1, 2011 and continued over a three-day period. The parties executed a final version of the agreement on February 4, 2011, two days before they were married. The wife stated that she did not receive an initial draft of the agreement prior to consulting with counsel. While the wife conceded that she had a single conversation with her counsel that lasted between 30 and 45 minutes, the record failed to definitively establish that she had any further meaningful discussions with counsel during the ensuing negotiations. After that discussion, the wife’s counsel sent several proposed changes concerning the agreement to the husband’s counsel. The record demonstrated that, after receiving an email from his counsel concerning the proposed changes, the husband responded to his counsel that he understood the role of the wife’s counsel as one in which he would merely explain the terms of the proposed agreement, rather than serve as her representative in a negotiation on its terms. Specifically, the husband stated that he had hired the wife’s counsel “to make sure [that the wife] fully understands the agreement,” and not “to create friction,” “re-write the agreement” or “dig into issues he does not know about.” The husband also provided a list of various circumstances that the wife’s counsel did not understand and stated that he would not provide the wife’s counsel with a detailed list of his bank accounts because he was out of town and that the wife was already familiar with his finances. The wife sharply disputed the husband’s representation, claiming that she had little knowledge of the extent of the husband’s finances beyond some basic knowledge as to certain businesses he operated. The wife also averred that she and the husband had minimal discussions pertaining to the agreement beyond his bare statements that a prenuptial agreement was necessary to protect his business interests. The wife claimed that the husband told her on various occasions that without the agreement, there would be no wedding. The wife  represented that, during the negotiations, the husband told her that the agreement was as fair as it was going to get, and that she should just sign it and not focus on every detail. The wife stated that the husband provided various reassurances that he would always take care of her and that the agreement was “no big deal.” While the communications submitted by the husband in support of his motion indicate that counsel for the parties continued discussing potential changes to the agreement, there was conflicting evidence establishing the extent that the wife was meaningfully involved in those discussions. The wife averred that the first opportunity she had to review the agreement was in Florida, at which point it was already in its final form. These facts if established, raised issues concerning whether the wife was meaningfully represented during the abbreviated negotiations, and also raised an inference that the husband did not intend on engaging in a good faith negotiation of the agreement from the outset, which, if true, would be sufficient to establish overreaching on his part . Accordingly, it found find that Supreme Court improperly granted the husband’s motion.
Appellate Division, Fourth Department


Father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child is a “consent” father even if he has not as yet actually been able to form that relationship.

In Matter of Adoption of William, 206 A.D.3d 1696, 170 N.Y.S.3d 447, 2022 N.Y. Slip Op. 03831 (4th Dept.,2022)  the Appellate Division found that respondent-petitioner Douglas W.M. (father) was a consent father within the meaning of Domestic Relations Law § 111 (1) (e) and there  was a sound and substantial basis to support the determination of Family Court that the father demonstrated “his willingness to take parental responsibility” (Matter of Raquel Marie X., 76 N.Y.2d 387, 402, 559 N.Y.S.2d 855, 559 N.E.2d 418 [1990]) It held that a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship. The father did everything possible to manifest and establish his parental responsibility’ under the circumstances ... He publicly acknowledged his paternity from the outset of the pregnancy ..., and, although he did not pay any expenses in connection with the pregnancy or the birth,” he testified that all of those expenses were paid by the military. Moreover, prior to the child’s birth, the father pursued paternity testing and requested and received from the mother a commitment that he could have custody of the child, and actively began purchasing “items” in anticipation of obtaining custody of the child upon birth. Based on the mother’s commitment, the father enlisted the help of his military commanding officers to obtain custody of his child, and made plans for relatives or family friends to help care for the child until his enlistment in the military ended. It concluded that the father established his ability to assume custody of the child. Custody and housing are separate and distinct concepts. A parent who lacks housing for a child is not legally precluded from obtaining custody. Certainly, active military members should not lose custody of a child due to their service to our country. Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility. The record supports the court’s findings that the father “reasonably and sincerely believed that the biological mother would not surrender the child for adoption ..., and that she frustrated his efforts to become involved with the child. The evidence at the hearing established that the mother lied to the father, telling him that she would give him custody of the child; misled petitioners into believing that the father did not want the child, even though she knew that he was aggressively pursuing custody; and misled the courts by filing a false affidavit stating that no one was holding himself out as the father. It found that there was a basis in the record to support a court’s determination whether a father’s consent is required, and would not disturb that determination.


Fourth Department Rules that Absent compelling circumstances, parties to a matrimonial action should not seek review of an order for temporary support


In Baxter v Baxter, 162 A.D.3d 1743, 76 N.Y.S.3d 449  (4 Dept., 2018) the Appellate Divison affirmed that part of a temporary order that imputed income to plaintiff for the purposes of calculating child support and directed defendant to pay pendente lite child support. It held that the best remedy for “any claimed inequity in awards of temporary alimony, child support or maintenance is a speedy trial where the respective finances of the parties can be ascertained and a permanent award based on the evidence may be made. Absent compelling circumstances, parties to a matrimonial action should not seek review of an order for temporary support…. Plaintiff has failed to allege the existence of compelling circumstances warranting review of the award of pendente lite child support.(citations omitted)


A person is aggrieved when he or she asks for relief but that relief is denied in whole or in part, or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part.

In Matter of Brady J.S., v. Darla A.B., --- N.Y.S.3d ----, 2022 WL 3094973, 2022 N.Y. Slip Op. 04858 (4th Dept.,2022) the Appellate Division affirmed an order which modified a prior custody order to award the father joint custody with the mother and grandparents and shared physical residence with the grandparents, with zones of influence for the father and grandparents he father. The Appellate Division rejected the position taken by the father that neither the mother nor the AFC had standing to appeal. The mother was aggrieved by the order on appeal inasmuch as she had joint custody of the child with the grandparents and, through counsel, she opposed the father’s amended petition, which was granted, in part, by the order on appeal. A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part. The mother, as a joint custodian of the child, had a direct interest in the matter at issue that was affected by the result, and the adjudication had binding force against her rights, person or property. Based on its determination regarding the mother’s standing, it concluded that the AFC also had standing to appeal the order (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 71-74, 103 N.Y.S.3d 445 [2d Dept. 2019]]).
 
The Appellate Division held that the failure to conduct a Lincoln hearing does not require remittal under the circumstances of this case A Lincoln hearing, though often preferable, is not mandatory, and the determination is addressed to courts discretion. In determining whether such a hearing is warranted, the court must determine whether the in camera testimony of the child will on the whole benefit the child by obtaining for the Judge significant pieces of information he or she needs to make the soundest possible decision. Here, the court was able to discern the child’s wishes as a result of the position expressed by the AFC. 


An agreement is voidable on the ground of duress when threats of an unlawful act deprived the party of the exercise of free will.

In Campbell v Campbell, --- N.Y.S.3d ----, 2022 WL 3094725, 2022 N.Y. Slip Op. 04875 (4th Dept.,2022) the parties were married in June 1989 and entered into a postnuptial agreement on August 31, 2017. In July 2019, plaintiff commenced this action for divorce. Plaintiff asserted affirmative defenses alleging that the 2017 agreement should be found null and void or set aside on the grounds that, inter alia, he signed the 2017 agreement under duress and that the 2017 agreement was unconscionable. Defendant moved for summary judgment seeking, inter alia, an order dismissing plaintiff's affirmative defenses. Following a hearing, Supreme Court concluded that the 2017 agreement was unconscionable and manifestly unfair. The Appellate Division reversed. It found, among other things, that the Supreme Court erred insofar as it held that plaintiff signed the 2017 agreement under duress as a result of defendant’s emotional abuse. An agreement is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his [or her] free will. Generally, the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing. The threat must be such as to deprive the party of the exercise of free will. Even accepting as true plaintiff’s allegations that defendant persistently urged him to sign the 2017 agreement and threatened to tell the parties’ children of plaintiff’s wrongful actions in the past, such conduct did not amount to any unlawful acts on the part of defendant sufficient to constitute duress .


Laws of 2022


Laws of 2022, Ch 365, § 2, amended Family Court Act § 121 effective June 30, 2022 to read as follows:

§ 121. Number of judges
The family court within the city of New York shall consist of  sixty judges, effective January first, two thousand  twenty-three. There shall be at least one family court judge resident in each county of the city of New York. (NY Legis 365 (2022), 2022 Sess. Law News of N.Y. Ch. 365) 


Laws of 2022, Ch 365, § 3, amended Family Court Act § 131(d) and (g) effective June 30, 2022 to read as follows:

(d) In the county of Nassau there shall be  nine family court judges and the number of such judges now existing in said county is hereby increased accordingly.

(g) There shall be a separate office of judge of the family court for the counties of Oswego and Sullivan and the compensation payable for each such separate office of judge of the family court shall be twenty-five thousand dollars per annum. In the county of Saratoga there shall be  two additional family court  judges and the number of such judges now existing in such county is hereby increased accordingly. The compensation of such additional family court judge shall be the same as the compensation of the existing family court judge in such county. (NY Legis 365 (2022), 2022 Sess. Law News of N.Y. Ch. 365) 


Laws of 2022, Ch 479, § 7 amended Domestic Relations Law, 115, subdivision 5 effective July 26, 2022 to delete the words “mentally retarded” and replace them with the words “developmentally disabled.” It now reads:

5. Where the petition alleges that either or both of the birth parents of the child have been deprived of civil rights or are mentally ill or  developmentally disabled, proof shall be submitted that such disability exists at the time of the proposed adoption.(NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479) 

Laws of 2022, Ch 479, § 17 amended Family Court Act § 115(b) effective July 26, 2022 to delete the words “mentally defective or retarded” and replace them with the words “developmentally disabled’. It now reads:

(b) The family court has such other jurisdiction as is set forth in this act, including jurisdiction over habeas corpus proceedings and over applications for support, maintenance, a distribution of marital property and custody in matrimonial actions when referred to the family court by the supreme court, conciliation proceedings, and proceedings concerning physically handicapped and  developmentally disabled children. (NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479)

Laws of 2022, Ch 479, § 6 amended the third undesignated paragraph Domestic Relations Law, 13–d, subdivision 1 effective July 26, 2022 to delete the words “mental retardation” and replace them with the words “developmental disability. It now reads:

Rubella infection poses a grave threat to the unborn child, especially during the first four months of pregnancy. It can lead to miscarriage, stillbirth, or one or all of the tragic defects such as deafness, blindness, crippling congenital heart disease,  developmental disability and muscular and bone defects. (NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479) 

CPLR 4549 Added

The civil practice law and rules was amended by adding CPLR 4549, a new exception to the rule against hearsay. This was intended to relax the common law exclusion of the hearsay statement of a party's agent or employee, provided that the statement was on a matter within the scope of that employment or agency relationship, and made during the existence of the relationship. The amendment is intended to change the extent of authority that a proponent must show in order to make the hearsay statement of an opposing party's agent or employee admissible. While under current law it appears clear that a hearsay statement will be admissible if there was actual authority to speak on behalf of the party, such authority often may be shown only by implication in light of the circumstances of the employment or agency relationship. In practice, this tends to limit "speaking authority" to only the high levels of management. See 2021 NY Legis Memo 833.

CPLR § 4549 provides that an “statement offered against an opposing party shall not be excluded from evidence as hearsay if made by a person whom the opposing party authorized to make a statement on the subject or by the opposing party's agent or employee on a matter within the scope of that relationship and during the  existence of that relationship.  Laws of 2021, Ch 833, effective December 31, 2021



Laws of 2022, Ch 219, § 5 amended CPLR 3102 (e) effective June 13, 2022  to read as follows:

(e) Action pending in another jurisdiction. Except as provided in section three thousand one hundred nineteen of this article, when under any mandate, writ or commission issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness in the state, he or she may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state. The supreme court or a county court shall make any appropriate order in aid of taking such a deposition; provided that no order may be issued under this section in connection with an out-of-state proceeding relating to any abortion services or procedures which were legally performed in this state, unless such out-of-state proceeding (1) sounds in tort or contract, or is based on statute, (2) is actionable, in an equivalent or similar manner, under the laws of this state, and (3) was brought by the patient who received reproductive healthcare, or the patient's legal representative.


Laws of 2022, Ch 219, § 4 amended CPLR 3119 by adding a new subdivision  (g) effective June 13, 2022  to read as follows:

(g) Out-of-state abortion proceedings. Notwithstanding any other provisions of this section or any other law, no court or county clerk shall issue a subpoena under this section in connection with an out-of-state proceeding relating to any abortion services or procedures which were legally performed in this state, unless such out-of-state proceeding (1) sounds in tort or contract, or is based on statute, (2) is actionable, in an equivalent or similar manner, under the laws of this state, and (3) was brought by the patient who received reproductive healthcare, or the patient's legal representative.

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