VACATING AN ACKNOWLEDGEMENT OF PARENTAGE ON MUTUAL MISTAKE

I

n this case, to set aside an acknowledgment of parentage, more than oral testimony is needed if the grounds are mutual mistake. "Family Ct Act §516-a (a). Sixty days after the expiration of the time limits set forth in paragraphs (i) and (ii) of Family Court Act 516 any of the signatories to an acknowledgment of parentage may challenge the acknowledgment in court by alleging and proving (emphasis added) fraud, duress, or material mistake of fact. Family Ct Act §516-a (b)(iv)

Carla A N-N v. Steven J U-G, Date filed: 2024-10-03, Court: Family Court, Queens, Judge: Support Magistrate Sandra Stines, Case Number: 221356:

"FINDINGS of FACT Support Magistrate Sandra Stines, makes the following decision/ findings of fact after trial: Procedural history

On March 14, 2024 Carla A N-N, Petitioner (hereinafter Ms. N-N) filed a “petition to vacate acknowledgment of parentage” against Steven J U-G, Respondent (hereinafter Mr. U-G). See, Petition to Vacate Acknowledgment of Parentage, Queens County Family Court Docket P-06147-24.

On October 1, 2024, Ms. N-N and Mr. U-G appeared (both waiving counsel) for trial. The Court heard their testimony. At the close of proof decision was reserved.

Evidence

Testimony

Ms. N-N’s testimony

Ms. N-N testified “when I signed the acknowledgment of parentage I believed that Mr. U-G was the father”. At the time of birth, “we both decided to not take the dna test and sign the acknowledgment of parentage”. She “assumed that Mr. U-G was the father” of the child until she had the child take a “dna test” in January 2023 that showed he is not. Ms. N-N “did the dna test for some documents I wanted to take for my daughter”.

Mr. U-G testimony

Mr. U-G testified “I assumed I was the father at the time I signed the acknowledgement of parentage”. Mr. U-G lived with Ms. N-N and subject child for two years but after he took “the dna test” he stopped living or visiting the child because the “dna test” showed he is not the biological father of the child. Mr. U-G has not had contact with the child since last year.

Documentary evidence

Court exhibit 1 Acknowledgment of parentage

Ms. N-N presented two documents for evidence she purported to be dna tests but they were not admitted in evidence because they are hearsay.

Discussion

An acknowledgment of parentage establishes the parentage of and liability for the support of a child. Family Ct Act §516-a (a). Sixty days after the expiration of the time limits set forth in paragraphs (i) and (ii) of Family Court Act 516 any of the signatories to an acknowledgment of parentage may challenge the acknowledgment in court by alleging and proving (emphasis added) fraud, duress, or material mistake of fact. Family Ct Act §516-a (b)(iv). Additionally an acknowledgment of parentage is void if, at the time of signing, any of the following are true: (i) a person other than the signatories is a presumed parent of the child pursuant to section twenty-four of the domestic relations law; (ii) a court has entered a judgment of parentage of the child; (iii) another person has signed a valid acknowledgment of parentage with regard to the child; (iv) the child has a parent pursuant to section 581-303 of the family court act other than the signatories; (v) a signatory is a gamete donor under section 581-302 of the family court act; or (vi) the acknowledgment is signed by a person who asserts that they are a parent under section 581-303 of the family court act of a child conceived through assisted reproduction, but the child was not conceived through assisted reproduction. Family Ct Act §516-a (c) (i)-(vi).

A hearing is required to determine fraud, duress, or material mistake of fact. Matter of Andrew E. v. Angela N.S. 165 A.D.3d 658, 85 N.Y.S. 3d 115 (2d Dept 2018); Family Ct Act §516-a (b)(iv)). This petition alleged “sixty days have elapsed since the signing of the acknowledgement of parentage. The following fraud duress or material mistake of fact has occurred (specify) the respondent is not the biological father but signed the parentage at (child’s name) time of birth. I, the mother assumed that my ex-partner for 3 years was her biological father. We never had a dna test done until later.” At fact-finding Ms. N-N clarified that it was Mr. U-G who she referred to as her ex-partner of 3 years in her petition.

Fraud, requires showing that a person justifiably relied on the other party’s fraudulent statements or representations at the time they signed the acknowledgment of parentage. Matter of Joshua AA. v. Jessica BB., 132 AD3d 1107, 1108, 19 N.Y.S.3d 116 (3d Dept. 2015). Here, neither party alleged that the other made fraudulent statements when signing the acknowledgment of paternity.

Duress requires a showing that a party “was forced to agree to [sign the acknowledgment] by means of a wrongful threat which precluded the exercise of [her] free will’”. Matter of Jeannette GG. v. Lamont HH 77 A.D.3d 1076, 909 N.Y.S. 2d 222 (3d Dept 2010). No such duress was presented herein.

Matter of Wimberly v. Diabo 42 A.D.3d 599, 839 N.Y.S. 2d 822 (3d Dept 2007) addressed mistake of fact to vacate an acknowledgement of parentage where a Respondent alleged he only signed an acknowledgement of parentage because he believed it was necessary to obtain benefits. Relying on principles of contract law the Diabo court held that for mistake of fact, that mistaken fact must be truly material — i.e., substantial and fundamental to the nature of the contract — so as to entitle a party to void that document. Id. Diabo found no mistake of fact to vacate the acknowledgment of parentage. An acknowledgment of parentage is indeed a contract, “generally, a contract entered into under a mutual mistake of fact is voidable and subject to rescission” because it “does not represent the ‘meeting of the minds’ of the parties”. Jerome M. Eisenberg, Inc. v. Hall 48 NYS 3d 71; 147 A.D.3d 602 (1st Dept 2017) (Matter of Gould v. Board of Educ. of Sewanhaka Cent. High School Dist.,81 NY2d 446, 453, 616 NE2d 142, 599 NYS2d 787 [1993]). In order to justify rescission, “[t]he mutual mistake must exist at the time the contract is entered into and must be substantial” (id.). See also, Carney v. Carozza 16 A.D.3d 867, 792 NYS 2d 642 (3d Dept 2005) (A contract or stipulation entered into under a mutual mistake of fact is subject to rescission if such mutual mistake existed at the time the contract was entered into and is so substantial that the agreement does not represent a true meeting of the parties’ minds.

At the time the acknowledgment of paternity here was signed Ms. N-N and Mr. U-G “assumed” i.e., believed that Mr. U-G was the father. Mr. U-G and Ms. N-N acted on that belief cohabitating as a family wherein Mr. U-G was the father. Two years after signing the acknowledgment of parentage, Mr. U-G and Ms. N-N allege their belief that Mr. U-G is the father was a mistake. To support that Ms. N-N submitted two documents which she purported were “dna” results. Those documents were not admitted because they were hearsay. The Guide to New York Evidence, (rule 8.00) (Hearsay is an out of court statement of a declarant offered in evidence to prove the truth of the matter asserted in the statement. The declarant of the statement is a person who is not a witness at the proceeding, or if the declarant is a witness, the witness uttered the statement when the witness was not testifying in the proceeding. A statement of the declarant may be written or oral, or non-verbal, provided the verbal or non-verbal conduct is intended as an assertion.), These documents did not meet hearsay exceptions including CPLR 4518 (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.) CPLR 4518 (d) is a hearsay exception for genetic marker or DNA. See, CPLR 4518(d) (Any records or reports relating to the administration and analysis of a genetic marker or DNA test, including records or reports of the costs of such tests, administered pursuant to sections four hundred eighteen and five hundred thirty-two of the family court act or section one hundred eleven-k of the social services law are admissible in evidence under this rule and are prima facie evidence of the facts contained therein provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or the state or by an employee delegated for that purpose, or by a qualified physician. If such record or report relating to the administration and analysis of a genetic marker test or DNA test or tests administered pursuant to sections four hundred eighteen and five hundred thirty-two of the family court act or section one hundred eleven-k of the social services law indicates at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall, if unrebutted, establish the paternity of and liability for the support of a child pursuant to articles four and five of the family court act). The documents Ms. N-N did not meet the exceptions in CPLR 4518(d).

Ms. N-N and Mr. U-G testified that they believe that Mr. U-G is not the father of the child herein and that belief is based on “dna test” results they saw. That testimony is hearsay, and their belief is not a fact. Ms. N-N did not present credible evidence that what she claims is a fact is actually a fact because Ms. N-N and Mr. U-G’s belief based on hearsay that now he is not the father is not a fact.

Ms. N-N did not prove that the acknowledgment of parentage was signed under fraud, duress, or due to a material mistake of fact.

Mr. U-G did not oppose the relief sought in Ms. N-N’s petition at the fact finding and at a court appearance on October 1, 2024 said he agreed to vacate the acknowledgement of parentage. But Mr. U-G’s non opposition at fact finding and statement on October 1, 2024 does not change that it is Ms. N-N ‘s burden to prove fraud, duress, or material mistake of fact to vacate the acknowledgment of paternity. Family Ct Act §516-a (b)(iv) Although principles of contract law apply to vacating acknowledgements of parentage, whether two parties to an acknowledgement of parentage agree to vacate same, unlike many contracts that may be vacated upon agreement, such agreement is not a basis for vacatur of acknowledgment of parentage.

Family Ct Act §516-a was enacted for the “timely and efficient establishment of paternity” (see legislative notes thereto). Were it that parties to acknowledgments of parentage did not have to prove fraud, duress, or material mistake of fact at the time the acknowledgments were signed but rather could change their mind based on agreement that would not be efficient and have far reaching effects on children, hence Family Ct Act §516-a (b)(iv). Furthermore every acknowledgment of parentage contains the following, “we understand that signing this acknowledgement of paternity is voluntary and will establish paternity of our child and have the same force and effect of an order of filiation determining paternity…. We have received written notice of our legal rights (including the time frames to withdraw responsibilities alternatives and the consequences of signing the acknowledgement of paternity and we understand what the notice states…we certify that the information we provide below is true”. Those statements were read to the parties on the record, and they acknowledged same. This reflects the intent of Family Ct Act §516-a and gravity of signing an acknowledgment of parentage.

Consistent with the statutory language, if a party fails to meet their burden of proof on the issue of fraud, duress, or material mistake of fact, the court need not order a genetic marker test to determine the child’s paternity. Matter of Mark A.M. v. Lesley R.S. 169 A.D.3d 1046, 92 N.Y.S.3d 902 (2d Dept 2019) (disagreeing with the Family Court’s vacatur of the acknowledgment of paternity, as the petitioner failed to prove that the acknowledgment of paternity was signed by reason of fraud, duress, or material mistake of fact) citing Matter of Westchester County Dept. of Social Servs. v. Robert W. R. 25 AD3d 62, 72, 803 NYS2d 672 (2d Dept 2005]).

Based on the afore-stated the petition herein is denied.

Dated: October 3, 2024"

SPANKING AND ABUSE/NEGLECT

The American Academy of Child and Adolescent Psychiatry recognizes that "Children need limits and rules. There are many ways to give children rules and help change their behavior. Examples include positive reinforcement, time-out, taking away of privileges, and physical punishment. Physical punishment, sometimes called corporal punishment, is anything done to cause pain or discomfort in response to your child's behaviors."

When does such physical punishment constitute abuse or neglect?

MATTER OF GRAYSON S., 2022 NY Slip Op 5649 - NY: Appellate Div., 4th Dept. 2022:

"We nonetheless agree with the father on the merits that, "[a]lthough a single incident may sometimes suffice to sustain a finding of neglect . . ., the record does not support such a finding here" (Matter of Allyssa O. [Edward N.], 132 AD3d 768, 769 [2d Dept 2015]). In particular, we conclude that, "[g]iven the age of the subject child, the provocation, and the dynamics of the incident, the [father's] act against [the child] did not constitute neglect" (id.). The record establishes that, during the course of a multi-person melee that included the 15-year-old sister beating up the 18-year-old daughter of the father's girlfriend, the 14-year-old child threw a rock at the vehicle causing the window to break, to which provocation the father instantly reacted by striking the child once either in the face or the back of the head (cf. Matter of Kayla K. [Emma P.-T.], 204 AD3d 1412, 1413 [4th Dept 2022]). Petitioner presented no evidence that the child sustained any injury or required medical treatment as a result of the single strike by the father during the altercation, and the police who investigated the incident did not file any charges (see Matter of Christian O., 51 AD3d 402, 402-403 [1st Dept 2008]). Moreover, petitioner "presented no [competent] proof of a pattern of excessive force by the father; indeed, the proof establishes that this was a single, isolated incident" (Matter of Stephanie K. [James K.] [appeal No. 2], 1 AD3d 939, 940 [4th Dept 2003]). Consequently, even though the court properly drew the strongest possible negative inference against the father after he failed to appear or testify at the fact-finding hearing (see Matter of Rashawn J. [Veronica H.-B.], 159 AD3d 1436, 1437 [4th Dept 2018]), the evidence presented by petitioner established nothing more than "an isolated incident, and `[w]hile losing one's temper does not excuse striking and [potentially] injuring one's child, one such event does not necessarily establish . . . neglect'" (Christian O., 51 AD3d at 403). We thus conclude that petitioner failed to establish by a preponderance of the evidence that the father neglected the child by virtue of the single incident at issue here (see Matter of Israel S. [Khadine S.], 156 AD3d 889, 889-890 [2d Dept 2017]; Allyssa O., 132 AD3d at 769; Matter of Corey Mc. [Tanya Mc.], 67 AD3d 1015, 1015-1016 [2d Dept 2009]; Christian O., 51 AD3d at 402-403; Matter of Amanda E., 279 AD2d 917, 918 [3d Dept 2001]; see generally Damone H., Jr., 156 AD3d at 1437-1438)."

CHILD SUPPORT - DISMISSING AN APPLICATION FOR MODIFICATION

In this matter, I was the attorney representing the mother in family court but did not handle the appeal.

MATTER OF JEAN-BAPTISTE v. Jean-Baptiste, 2022 NY Slip Op 4628 - NY: Appellate Div., 2nd Dept. 2022:

"Gamaliel Jean-Baptiste (hereinafter the father) and Nagelande Marie Jean-Baptiste (hereinafter the mother) have three children together. The mother and the father divorced in 2017. Under the judgment of divorce, the father was to pay child support in the sum of $973 per month. By petition dated December 28, 2020, the father sought a downward modification of his child support obligation on the basis that there had been a substantial change in circumstances, namely, that he had lost work as a result of a lack of business. The mother moved to dismiss the father's petition. The Support Magistrate, in effect, granted the mother's motion and dismissed the petition without a hearing. The father filed objections to the Support Magistrate's order. In an order dated September 27, 2021, the Family Court denied the father's objections. The father appeals.

"On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), all of the allegations in the petition are deemed true and the petitioner is afforded the benefit of every favorable inference" (Matter of Gerety v Gerety, 203 AD3d 827, 829 [internal quotation marks omitted]). "When evidentiary material outside the pleading's four corners is considered, and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal [shall] not eventuate" (id. at 829 [internal quotation marks omitted]). "`Upon an application to set aside or vacate an order of support, no hearing shall be required unless such application shall be supported by affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested'" (Matter of Camarda v Charlot, 182 AD3d 532, 533-534, quoting Family Ct Act § 451[1]).

"The party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Matter of Gerety v Gerety, 203 AD3d at 828 [internal quotation marks omitted]). "A parent's loss of employment may constitute a substantial change in circumstances" (Matter of Evans v White, 173 AD3d 864, 865 [internal quotation marks omitted]). "However, the proper amount of support is determined not by the parent's current economic situation, but by the parent's assets and earning capacity" (id. at 865 [internal quotation marks omitted]). "Thus, [a] party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that his or her employment was terminated through no fault of his or her own, and that he or she made diligent attempts to secure employment commensurate with his or her education, ability, and experience" (id. [internal quotation marks omitted]; see Schwaber v Schwaber, 91 AD3d 939, 939; Conway v Conway, 79 AD3d 965, 965-966).

Here, the Family Court properly denied the father's objections to the Support Magistrate's order. As an initial matter, although the father is correct that the Support Magistrate's finding regarding his weekly income was not supported by the evidence before the Support Magistrate, we nonetheless affirm because he failed to establish a prima facie case warranting a hearing on his petition (see Matter of Camarda v Charlot, 182 AD3d at 533-534). Specifically, the father failed to make any allegations or provide any evidence that after he lost work due to the effects of the COVID-19 pandemic on the economy, he engaged in "diligent attempts to secure employment commensurate with his . . . education, ability, and experience" (Matter of Evans v White, 173 AD3d at 865 [internal quotation marks omitted]). Nor did he make allegations or provide evidence to demonstrate, prima facie, that his knee injury prevented him from working (see Conway v Conway, 79 AD3d at 965). Thus, accepting the facts as alleged in the father's petition as true and according him the benefit of every possible favorable inference, and considering the father's evidence submitted in opposition to the mother's motion, he failed to sufficiently allege a substantial change in circumstances that would warrant a downward modification of his child support obligation (see Matter of Gerety v Gerety, 203 AD3d at 829-830). Accordingly, the Family Court properly denied the father's objections to the Support Magistrate's order dismissing his petition without a hearing (see Matter of Camarda v Charlot, 182 AD3d at 533-534)."

REASONABLE EFFORTS TO RETURN TO FAMILY IN NEGLECT AND ABUSE PROCEEDING NOT REQUIRED

MATTER OF SCOTT, 2022 NY Slip Op 50645 - Thomson Co. Family Court 2022:

"Respondent Jamie Scott (hereinafter "the mother" or "the Respondent") is the mother of the subject child Britney Scott (date of birth: XX/XX/13).^[1] The paternity of the child has never been legally established. On September 4, 2020, the Tompkins County Department of Social Services (hereinafter "the Department" or "the Petitioner") filed a Petition by Order to Show Cause pursuant to Family Court Act Article 10 alleging abuse and neglect of Britney by the mother. The Court ordered the temporary removal of Britney from the Respondent and placed the child in the care and custody of the Department pending resolution of the proceedings.

A Fact-Finding Hearing was conducted by the Court on February 4, 2021, March 19, 2021, April 2, 2021, and April 27, 2021. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Kristine Shaw. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. On June 7, 2021, this Court issued a Decision and Order in which it determined that Britney is a "neglected child" within the meaning of FCA § 1012(f)(i)(B) and that the Respondent mother engaged in conduct and demonstrated a lack of judgment which created an imminent danger of impairment to her daughter. The Court's Decision and Order entered June 7, 2021, is incorporated by reference as if fully set forth herein.

On October 13, 2021, a Dispositional Hearing was held. The Department was represented by Attorney Arthur Stever. The mother was represented by Attorney Francisco Berry. Attorney Angelica Parado-Abaya of Citizens Concerned for Children, Inc., appeared as the Attorney for the Child. On November 10, 2021, the Court issued a Fact-Finding Decision and Dispositional Order in which it determined that the Petitioner had established by a preponderance of the evidence that presently the Respondent lacks the fitness to regain custody of her daughter and that her complete lack of insight into her neglectful conduct would place the child at a very real and imminent risk of harm should Britney be returned to the Respondent. The Court determined that it was in Britney's best interests to remain in the care and custody of the Department, placed with her current foster family. The Court placed the Respondent under the supervision of the Department pursuant to FCA § 1057 and imposed a number of orders and conditions on her. The Court's Fact-Finding Decision and Dispositional Order entered November 10, 2021, is incorporated by reference as if fully set forth herein.

On January 6, 2022, the Department filed a motion pursuant to FCA § 1039-b(b)(6) requesting a finding that reasonable efforts to return Britney to the Respondent mother's home are no longer required. On March 11, 2022, Respondent filed an Affirmation in Opposition.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Pursuant to FCA § 1039-b(b)(6), "reasonable efforts to make it possible for the child to return safely to his or her home shall not be required where the court determines that the parental rights of the parent to a sibling of such child have been involuntarily terminated unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future" [emphasis added]. The obligation of the Department to make and prove diligent efforts may be excused retroactively. Matter of Marino S., 100 NY2d 361, 373 (NY 2003).

The Court is not required to hold an evidentiary hearing on such a motion but must do so only "when genuine issues of fact are created by the answering papers" Matter of Damion D., 42 AD3d 715, 716 (3rd Dept. 2007). A parent's engagement in rehabilitative services is not sufficient to require an evidentiary hearing. Matter of Carlos R., 63 AD3d 1243, 1245 (3rd Dept. 2009). Regardless of whether a respondent may have recently engaged in some rehabilitative services, there is a "sound basis" for the Court to dispense with the agency's requirement to make reasonable efforts where there is a "consistent past history of substance abuse and failed attempts at rehabilitation ..." Id.

In this case, the Respondent mother's answering papers do not raise a genuine issue of fact requiring an evidentiary hearing. It is uncontroverted that the Respondent's parental rights to four of her children — John Scott, Paul Scott, Georgia Scott, and Riann Scott, — were involuntarily terminated by decision signed April 1, 2011, and order entered April 15, 2011 (Petitioner's Exhibits L & M). As such, this Court must dispense with the Department's requirement to engage in reasonable efforts to return Britney to the Respondent's care unless the court determines that continued reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future. The Court does not find that any of these conditions are met, let alone all three, and therefore the Department shall no longer be required to engage in reasonable efforts.

This Court determined after the Fact-Finding Hearing that the Respondent used Britney as sexual bait for a pedophile, placing her in imminent danger of mental, emotional, and physical harm. But for the intervention of law enforcement, Britney faced a very real danger of being further sexually exploited, through child pornography and/or sexual assault. The Respondent's own testimony at trial was devoid of credibility and "absurdly contradictory." (Decision and Order entered June 7, 2021). Further, the Respondent's admissions at trial established that Britney was not the first child of hers that she subjected to such danger. The Respondent testified that, prior to losing custody of her daughter Miley Scott, Miley disclosed that she had been sexually abused by a man named Harvey Kelly in South Carolina. The Respondent had allowed Mr. Kelly access to Miley, and following the child's disclosure, Child Protective Services in South Carolina "told [Respondent] not to let [Miley] be left alone with him again."

At the Dispositional Hearing in this matter on October 13, 2021, the Respondent testified that she would follow all mandates of the Court as set forth in the subsequent dispositional order. However, since that time, the Respondent has repeatedly stated to the Department's caseworker Angela Pitt that she will not abide by the Court's orders, that she will not work with the Department, that she did not do anything wrong, and that instead of working towards her milestone accomplishments, she plans to wait until the appropriate time and then appeal. (Petitioner's Exhibit X). Despite being ordered to submit to random screening for substance abuse, the Respondent has refused, thwarted, and evaded the Department's numerous attempts to ensure the Respondent's compliance with this condition, even claiming that she "dropped her phone in the toilet." (Petitioner's Exhibit X). The Department was left with no way of directly reaching the Respondent, in violation of the Respondent's obligation to maintain communication with the Department. (Petitioner's Exhibit X). The Respondent has also denied the Department access to her home on at least one occasion, has refused to participate in phone calls with Britney if they are supervised by the foster parents, has demanded that Britney be removed from her foster home, and has engaged in inappropriate conduct towards both the foster parents and the Department, including telling caseworker Pitt, "[B]itch, shut the hell up." (Petitioner's Exhibit X). The Court finds that the Respondent continues to demonstrate a complete lack of insight into her neglectful conduct, placing Britney at a very real and imminent risk of harm should she be returned to the Respondent.

Even accepting the Respondent's claims in her answering papers as true that she has obtained stable and secure Section 8 housing in Elmira, that she has provided information about her employment efforts to the Department, that she is in the process of seeking further engagement in mental health services in Elmira, and that she has maintained contact with Britney despite obstacles, none of those gains, either individually or collectively, are sufficient to overcome her long history of failed attempts at rehabilitation such that returning Britney to her care would be likely in the foreseeable future, would be in the child's best interests, and would not be contrary to the child's health and safety. The Respondent has a remarkable 30-year history of removals, neglect findings, loss of custody, and parental rights terminations involving all eight of her biological children as a result of her failure to adequately address mental health issues and consequent related issues including substance abuse, inappropriate housing, dishonesty, and an inability and/or refusal to keep unsafe men away from her children. (Petitioner's Exhibits A through M). These issues have severely impacted her ability to safely parent every child ever in her custody. Aside from the four children to whom her parental rights were involuntarily terminated, the Respondent lost custody of three other children through an Article 6 order as part of an Article 10 dispositional settlement. (Petitioner's Exhibit B). All eight of her children have been removed from her care at least once, three of them have been removed twice, and three of them (including Britney) have been removed three times. (Petitioner's Exhibits A through M).

The bases for most of these removals were the Respondent's repeated failures to obey court mandates, dishonesty regarding her refusal to follow court orders, and repeated failed attempts at rehabilitation. (Petitioner's Exhibits A through M). Indeed, there is a "consistent past history of substance abuse and failed attempts at rehabilitation" providing a "sound basis" for the Court to dispense with the requirement of making and proving reasonable efforts. Matter of Carlos R., 63 AD3d 1243, 1245 (3rd Dept. 2009). Further, the Respondent's recent deliberate evasion of the mandated random drug screenings calls into question the truthfulness of her repeated assertions to this Court that she has maintained a long period of sobriety and signals that the Respondent's substance abuse is not limited to a past history but is very much a present concern.

For all of the reasons set forth above, returning Britney to the Respondent mother's care is not likely in the foreseeable future, would not be in Britney's best interests, and would in fact be contrary to the child's health and safety. As such it is hereby

ORDERED that the Department shall not be required to engage in or prove reasonable efforts to return the child to the Respondent's home; and it is further

ORDERED that this dispensation operates retroactively pursuant to the legal authority cited above; and it is further

ORDERED that a Permanency Planning Hearing is scheduled for XXXX.

[1] The names of the subject child, Respondent, and other third parties have been fictionalized to preserve anonymity."

EXTENDING AN ORDER OF PROTECTION

RC v. AC, 2021 NY Slip Op 21175 - Kings Co. Supreme Court 2021:

"A victim of domestic violence may "commence a proceeding in either or both Family Court and Criminal Court" and "[e]ach court has the authority to issue temporary or final orders of protection" (People v. Wood, 95 NY2d 509, 512-513 [2000]). Furthermore, Section 842 of the Family Court Act provides in pertinent part, that a court "may, upon motion, extend [an] order of protection for a reasonable period of time upon a showing of good cause or consent of the parties."

The statute fails to define "good cause", but does state that "[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself constitute sufficient ground for denying or failing to extend the order" (Family Ct. Act § 842). In 2003, the amendment to § 842 lowered the standard by permitting the Family Court to extend the Order of Protection upon a showing of good cause rather than aggravating circumstances for up to five (5) years.

In each case, a "request for an extension should be viewed in the context of the facts of the case, including present circumstances, past abuse by the respondent, threats of abuse by the respondent and relevant information concerning the safety and protection of the protected persons with the primary goal to prevent a recurrence of abuse." (Assembly Mem. In Support, Bill Jacket, L. 2010, ch. 325 at 9).

"[I]n determining whether good cause has been established, courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable" (See Matter of Molloy v Molloy, 137 AD3d 47 [2d Dept. 2016]).

The Mother argues that since the issuance of the Final Order of Protection on the Family Offense Petition, the matrimonial case has stalled due to the Father's behavior and partially due to the Covid-19 crisis. She maintains that if the Order of Protection is not extended, she will be exposed to further Domestic Violence at the hands of the Father. She argues that throughout the IDV proceedings, the Father has continuously disregarded the Court's directions and orders, citing the Father's re-arrest for violating the Temporary Orders of Protection in 2018 during the pendency of the IDV matter.

The Mother argues that the criminal court proceedings against the Father were dismissed erroneously and on a technicality on speedy trial grounds and that she was not able to testify at trial regarding the many allegations of domestic violence perpetrated by the Father against her. The Mother contends that she continues to fear for her safety and the safety of their children.

In his Affidavit in Opposition, the Father contends that the Mother does not make a showing of "good cause" since her Order to Show Cause is devoid of any factual showing that the Father committed or threatened to commit any family offenses against the Mother. He argues that the Mother "makes a showing of her feelings of annoyance and disdain" for the Father, but does not provide any proof of violations of the final Order of Protection.

The Father contends that there is no prior record of a domestic violence history between the parties and that before he was "falsely accused by the Mother of various crimes after he indicated he wanted a divorce," he had never been arrested.

The Father argues that, pursuant to Molloy "good cause" must be proven despite "the fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order."

The Father distinguishes the facts of this case from those in Molloy, arguing that in Molloy the petitioner received a two-year Order of Protection after a fact-finding whereas in the case at bar, the Father consented to a two-year Order of Protection. Further, the Father contends that in Molloy the petitioner, in requesting an extension of the Final Order of Protection, alleged a host of serious allegations including blatant violations of the Order of Protection, whereas here the Mother only alleges fear of the Father based upon past alleged behavior and criminal cases that were dismissed and sealed.

On May 4, 2021, the Mother filed an Affidavit in Further Support of her Order to Show Cause, in which she maintains that the Father subjected the Mother and the children to many forms of domestic violence including physical, verbal, emotional, and financial abuse during the marriage. The Mother contends that in early 2018, the Father locked two of the parties' children in a room by drilling the door shut from the outside, which forced the Mother and the children to flee the marital home and travel to the Maternal Grandmother's home for their safety.

The Mother further alleges that on or about May 26, 2018, the Father came to her place of employment, stood by the cash register where she was working, and questioned her to ascertain where she and the children were residing. Thereafter, the Mother claims that the Father followed her to the subway station before she was able to escape.

The Father further alleges in his June 12, 2021 Answer, that the Mother's allegations are mere allegations, not supported by any evidence. The Father further maintains that there is reason to doubt the veracity and credibility of the Mother's allegations based upon "many misrepresentations, inconsistencies, and embellishments."

In the case at bar, the Court observed the demeanor of the Father and Mother and their behavior throughout the three (3) years the case has been pending. The Court is also intimately familiar with all of the Criminal Court, Family Court, and Matrimonial cases as well as the allegations made by both parties regarding the domestic violence. While the Court is aware that the criminal cases against the Father were dismissed and sealed pursuant to CPL §30.30, the Court holds that the Mother's contentions and fears relating to the Father are facially sufficient and credible. The Father has had numerous opportunities to rehabilitate his relationship with the children and has failed at every step. The Father feels emboldened by the dismissal of his criminal cases and refuses to take advice from his attorneys and the AFC who are seeking to assist him to rehabilitate his relationship with his children.

The Court holds that the Father's behavior throughout this proceeding bely his current arguments. He contends that he wants a divorce from the Mother, but has stalled at every opportunity to move the matrimonial case forward, insisting that everyone is to blame other than himself. The Mother and the children have been consistent throughout this case in expressing their fear of the Father and now, the Court holds that the Mother has provided sufficient evidence that "good cause" exists to extend the Final Order of Protection in her favor and in favor of the children.

Based upon the credible evidence provided by the Mother, the lengthy history of this case, the delays caused by the Father and the Covid-19 pandemic and the troublesome denial by the Father to the children of the alleged domestic violence and the behavior displayed by the Father throughout these proceedings, this Court is extending the Final Order of Protection."

A CUSTODY TRIAL IN FAMILY COURT

Mireille M.R. v. Albert R., Date filed: 2021-06-07, Court: Family Court, Kings, Judge: Judge Javier Vargas, Case Number: 268765:

"DECISION & ORDER Upon the foregoing papers, the evidentiary virtual bench trial presided by the undersigned from March 16 to May 6, 2021, the exhibits admitted into evidence and for the following reasons, the Petition by Petitioner Mireille R. (hereinafter “Mother”) and the Cross Petition by Albert R. (hereinafter “Father”), for custody and visitation of the parties’ Children, are granted in part and denied in part in accordance with the following decision.

 I.

After meeting on a neighborhood street in Brooklyn, New York, in 2013, the Father and Mother dated for two years and got married on October 30, 2015. The Father was born and raised in Jamaica becoming a U.S. citizen after several years in New York, while the Mother immigrated from Haiti and her status remains in transition. Their union procreated the subject Children, J.R. and T.R. It is undisputed that the Father was the breadwinner of the family, working long hours during the day as a construction foreman and in the evening as a taxi driver, while the Mother remained at home as the homemaker and primary caretaker of the Children. With his salary, he would cover all the family expenses and carrying charges of their marital residence located at 927 East 87th Street in Brooklyn, New York, including electricity, telephone, car payments, cable, and the home mortgage. The family lived together for five years at that residence with the Mother’s adult daughter from a previous union, Shirley Byron, age 23, who helped in the childcare and housing chores.

Although known to the household, the family kept secret the Father’s acts of domestic violence against the Mother throughout the marriage, as related at trial and evidenced by New York State Domestic Incident Reports and Court Ordered Investigations (“COI”) conducted by the New York City Administration for Children Services (“ACS”). However, on June 4, 2018, it was the Father who cynically commenced a Family Offense proceeding against the Mother in Kings County Family Court, alleging that she had verbally mistreated him, engaged in hysterics and was “always angering me.” This resulted in the issuance of a Temporary Order of Protection (Vargas, J.) in Father’s favor restraining the Mother from harassing, menacing, stalking, or committing any criminal offense against him. His Petition was eventually dismissed as withdrawn.

By Amended Petition dated July 24, 2018, the Mother then commenced her own Family Offense proceeding against the Father in the same court, alleging that he has engaged in a pattern of threats, menacing and harassment by constantly yelling, cursing and belittling her in front of the Children; has committed acts of sexual and physical assaults against her; and has tried to choke her after buying groceries for the family in front of the discount department store, BJs, in January 2017. By Temporary Order of Protection dated June 13, 2018, this Court (Vargas, J.) excluded the Father from the marital residence, ordered him to stay away from the Mother, prohibited all communications with her other than regarding custody and visitation issues, precluded him from obtaining a license to carry weapons, and ordered him to refrain from harassing, stalking, assaulting, menacing, sexually touching, or committing any criminal offense against the Mother. That Temporary Order of Protection was extended throughout the proceedings and trials.

Simultaneously, by Petition for Custody dated June 13, 2018, Mother commenced the instant proceeding against Father in Family Court, seeking sole legal and physical custody of the parties’ Children, affirming that she “has always been the primary caretaker of the Children,” that Father refuses to help her in caring for the Children complaining that “it is a waste of his time,” and that he never has time to care for them while she works, instead dropping them off at the Paternal Grandmother, Mrs. Rosa Foster’s home. In response, Father filed his own Petition for custody of the Children against the Mother. During the pendency of these proceedings from 2018 until 2021, several Temporary Orders of Visitation (Vargas, J.) were issued by the Undersigned giving the Father alternate weekend visitation with the Children at the Paternal Grandmother’s residence, ordering the parties to refrain from insulting or disparaging each other in front of the Children, or discussing the litigation with them, and prohibiting the infliction of excessive corporal punishment upon the Children. The Court appointed the Children’s Law Center as the Attorney for the Children.

Numerous court appearances before the Undersigned ensued, where the parties lodged several complaints against each other, for instance: complaining that the Father was not always present during the visitation, alleging that the parties left the Children alone, implying that the Father engaged in inappropriate sexual behavior with one Child, and accusing the Mother of inflicting corporal punishment upon the Children. The Father repeatedly showed the Court photos of burns sustained by one of the Children while the parties were still together. Based on those allegations, the Court ordered two separate ACS Court Ordered Investigations dated July 2, 2018 and November 24, 2020, which did not find any child protective concerns at either of the parents’ homes. Although the COIs reveal that both parents and their residence were appropriate for the Children, they did not support any of the Father’s allegations against the Mother and showed that the Father relied heavily on the Paternal Grandmother for all homemaking and childcare during his parenting time. Specifically, the November 2020 COI affirmed that Mother has been the primary caretaker and supervisor of the Children since birth, corroborated that Father had physically assaulted her in the past in front of the Children and, relevantly, stated that both Children wanted to live with the Mother and visit with the Father and Grandmother on weekends.

II.

Because the parties did not reach an agreement to settle either their Family Offense or Custody proceedings, the Court presided over two separate trials, commencing with the Family Offense hearing on August 13, 2018, and continuing September 25, 2018, December 19, 2018, and April 1, 2019. During that combined fact-finding and dispositional hearing — which transcript and evidence was incorporated on consent into the custody proceeding, the Mother testified in a credible and consistent manner to several incidents of domestic violence by the Father committed against her mostly in front to the Children. She testified that Father choked her in January 2017, upon returning to their car after buying groceries at the BJ’s Store because he got angry with her about spending money, yelled at her in front of the Children and put his hands around her neck aggressively pressing her neck for one to two minutes until someone passed by and he stopped choking her. She testified that she could not breath, was very scared, and tried to get his hands off, but that thankfully he stopped just when she couldn’t breathe anymore. Her neck hurt all over while he was squeezing it.

Around the month of September 2017, the Mother testified that on two occasions the Father forced her to have sexual relations with him and raped her after coming to her bedroom and telling her that “he wanted to cum” by placing his penis in her mouth and taking off her clothes, all while the Children were sleeping nearby. In an emotional way, she explained that it felt like an order from him to sexually perform because he was constantly insulting her and threatening to call federal agents from the United States’ Immigration Control & Enforcement (“ICE”) to have her deported back to Haiti. In the same vein, sometime in 2018, the Father boasted that he is the master and owner of the house, “he does as he pleases” and that Mother “was his property and could do whatever he wants to do with her.” According to Mother, she felt like she was “nothing,” “no one” and that “she felt better in her country” of Haiti. “She want[ed] to be free as a human being.” She testified that Father had also punched her in the right side of her face and had occasionally put his body on top of her around January 2018. It should be noted that the Court observed that the Father sports a height of 6’1″ and weighs over 280-290 pounds, while the Mother is 5’5′ and weights a little over a hundred pounds.

The Mother also testified that in May 2017, the Father once left his black handgun on his bed in a menacing way for everybody to see, including their Children who were present in the house at the time, making her “feel unsafe” and terrified because he had previously told her “that if he could kill her and the kids, he will.” She took a picture of the gun on the bed, which was admitted into evidence, and informed her Daughter and Paternal Grandmother that “he put the gun where they could see it.” In another occasion, Mother stated that Father put his hands on each side of her pillow and threatened her that “if I could kill you and get away with it, he will kill her.” Throughout the trial, the Mother testified that she was very “afraid” of the Father and detailed other incidents of verbal abuse by him, including yelling at her without reason, insulting and belittling her calling her names like “whore,” “a nobody,” “skank” and “bumbaclott,” which is a vulgar Jamaican insult or an interjection expressing disgust or anger for a person.

Upon cross examination, the Mother testified that she did not call the police or seek medical attention despite the several assaults she suffered from the Father because she was afraid of him, his insults, and his threats to deport her with ICE. She did not tell the police about the handgun incident even though she found it because of that fear of the Father. The Mother further explained that she was also afraid of the police authorities because she is currently undocumented after coming here to New York in a fiancé’s K-1 Visa with another man and overstaying her permit, but that then she met the Father, who married her and applied for her Green Card or permanent residence in the United States. However, she testified to filing two Domestic Incident Reports with the New York Police Department, which showed that nobody was arrested but that she told police about the Father’s abuse and of him having dreamt about having sex with her adult Daughter. She reiterated that she did not ask for help because she was afraid of Father and what he could do. For that same reason, she did not call or go to the Police Precinct despite it being just ten blocks from her home. With that, the Mother concluded her testimony and documentary presentation.

Following the denial of Father’s motion to dismiss for failure to establish a prima facie case, the Father’s case began with him testifying that the Mother was merely pursuing the Family Offense proceeding because under the Violence Against Women Act that was the only way that she could get a Green Card without him sponsoring her. He denied ever raping her anally or otherwise because Mother was “insatiable” and “would like to have sex every day.” Father complained that he was paying a lot of money for the Mother’s immigration attorneys and documents, and claimed that Mother got angry with him after her immigration application was denied. He blanketly denied ever threatening, sexually abusing, hitting, or doing any harm to Mother, and although acknowledging that they had their arguments, he claimed that it was the Mother who was aggressive towards him. He acknowledged always shopping at BJ’s, but nothing about the choking incident.

Next to testify was the Paternal Grandmother, who testified that she sees the Mother almost five times a week and has a very close relationship with her, even talking about romantic relationships. The Grandmother testified that she had never seen the parties arguing, choking, or hitting each other, except for one occasion when Mother came to her home in 2018 saying that she was going to leave Father. Mother never mentioned to her that he was abusive verbally, sexually, physically, or otherwise. However, on cross examination, the Grandmother acknowledged that she mostly visited the Mother during the day when Father was working or absent, so that may provide an explanation as to why she never saw them arguing.

After concluding the trial and deliberating on April 1, 2019, the Family Court found the Mother credible in that she established that Father committed several family offenses against her and created an environment of fear and apprehension, preventing her from going to the police, the doctor or seeking help. Specifically, the Undersigned found that the Father had committed the family offenses of attempted assault in the third degree (Penal Law §§110.00, 120.00), harassment in the second degree (Penal Law §126.40), sexual misconduct (Penal Law §130.20), forcible touching (Penal Law §130.52), and criminal obstruction of breathing or blood circulation (Penal Law §121.11), and further found the existence of aggravating circumstances against him in that he had committed some of the family offenses in the presence of the Children, had used a gun to scare the Mother, and there was physical injury to her.

Thereupon, on April 1, 2019, the Court issued a final Order of Protection (Vargas, J.) for five years directing the Father, among other things, to stay away from the Mother, her home and place of employment; to refrain from assaulting, harassing, menacing, or committing any criminal offense against her; to refrain from communicating with her, except for custody & visitation issues; and prohibiting him from obtaining a license to carry weapons, until and including March 31, 2024. Upon Father’s appeal, the Appellate Division, Second Department, upheld the five-year Final Order of Protection against him, with a minor modification (see Matter of Royal v. Royal, ___AD3d___, 2020 NY Slip Op 06130 [2nd Dept. 2020]).

III.

While the case was sub judice, the terrible Covid-19 Pandemic descended upon the World temporary paralyzing nonemergency matters pending in all New York courts, and thereby requiring the implementation of virtual proceedings and conferences using Skype and then Microsoft Teams platforms. All counsel and parties in the Family Court became proficient and began utilizing the virtual format for their pending proceedings. Several conferences were held virtually in this case via Teams before the Undersigned. Despite the Final Order of Protection against him, the Father recalcitrantly wanted to pursue the Children’s custody claiming that the Mother was neglectful, immoral and unworthy of custody.1

Since trial courts have wide latitude and discretion regarding trial procedure (see CPLR 4011; Family Court Act 165), the Undersigned presided over the bench trial on a virtual basis after the parties consented on the record to the same (see C.C. v. A.R., 69 Misc. 3d 983, 988-989 [Sup Ct, Kings County 2020]). The custody trial began on March 16, 2021, continued on March 17, 2021, and concluded on May 6, 2021. The first witness to testify was the Mother who testified that she has always been the primary caretaker of the Children, has attended to their educational and medical needs, has always being the one going to parent/teacher conferences and arranged for the Children’s playdates and extracurricular activities. The Mother specifically testified about their son, Taylor, who would misbehave in school, hit other children in the classroom, and throw himself on the floor with tantrums, when the Father was home. Taylor also had speech and mispronunciation issues, and that she alone arranged for speech and other therapies for him. She maintained that after the Father moved out of the residence, that Child has been doing well in school, became a “real model in his class,” and has demonstrated an intelligence and multiplication ability not seen before. She also spoke about her other Child, J.R., who had just started kindergarten, and could not stay calm and still, but who has also improved his conduct since the Father’s departure.

The Mother testified that a typical day at their residence commences with her making breakfast for the Children, arranging for them to take showers, eating breakfast, and getting them ready for school and getting a car service to take them to school. After school, she is the one who welcomes them back home, makes them wash up, have a snack, do their homework with her help, and eat the dinner she prepared. Other than the Maternal Grandfather and her Daughter, the Mother readily acknowledged that the Paternal Grandmother constitutes her support system and a big help for her, frequently visits the family, and provides childcare when she works. The Mother is the one who cleans up the house every day, sometimes with the Children’s help by picking up their toys and shoes. The Children are “very healthy and have no major illnesses,” she schedules appointments and takes them to the doctor and dentist. The Mother also testified that for fun the Children like to dance to music, play hide and seek, solve puzzles, and play with spelling games to help them with their spelling, grammar, and writing. Because of the advent of the Covid Pandemic, they currently do not have many playdates at this time, but play with their cousins and she plans to engage them in more extracurricular activities once the Pandemic subsides.

The Mother acknowledged that she disciplines the Children sometimes by slapping their wrists, forbidding television or by making them read a book to think about what they did wrong. She considers her strongest assets to be very loving, sacrificing and doing everything to better their Children, and spoiling them to a fault. After the Father left, she testified that she was finally able to work more outside the home, and got a job two to three times a week as a certified nursing assistant at the Borough Park Nursing Home and the Chateau Nursing Home in Brooklyn. She was forced to work because the Father has failed to provide financial help for them and owes her over $60,000 in child support. In fact, in November 2020, the Mother offered the Father to have visitation every weekend in order for her to have more time to work to support the family. However, the Father declined that offer, despite the Court issuing a Visitation Order to that effect on the record in open court. When she works, it is only the Maternal Grandfather, Paternal Grandmother and her adult Daughter who provide childcare assistance.

In fact, Mother testified that the Father has never shown much interest in the Children, their education, their speech therapy and has never gone to the school or parent/teacher conferences always claiming that he “is too busy.” She maintained that he has never questioned or shown interest in her decisions regarding the Children’s medical issues, education or religious upbringing. Only once did the Father objected to the Children getting a vaccine, but it was a school requirement and she went ahead to inoculate them. Despite all this, the Mother affirmed that she would foster a good relationship between the Children and Father for “whatever he wants to do,” any additional time and activities that he would like them to be engaged with him. She claimed to have “no hatred towards the Father even though they cannot be together,” and will put the Children’s interests first and give him whatever visitation he wishes.

On cross examination, the Mother recognized that she has reported the Father to the Administration for Children Services because the Children have been hurt under his care or, in her view, exposed to inappropriate things at Father’s residence. On one occasion, the Paternal Uncle Michael Foster — who has mental issues of schizophrenia — slapped one of the Children at the Grandmother’s house and ACS recommended not to leave the Children alone with him. On another occasion, in June 2019, one of the Children fell in the park and broke his arm while under the supervision of the Father and Grandmother, prompting Mother to call ACS. Those ACS investigations were unfounded against the Father for child protective issues. Mother then rested her case for custody.

In response, Father commenced his case with his direct examination testifying that he was born in Jamaica, and lives in a private home with the Paternal Grandmother and his brother, the Paternal Uncle. He stated that he has a religious education from the Clearview Ministry Bible Study. He explained that he met Mother in 2013, but did not want to get married to her, who had come to America with a man from Haiti and broke up with him, and that she got pregnant almost immediately which caused him to get “upset” and “mad for five months.” However, he eventually came around to accept the Child and they had another one and lived at the marital residence together for five years. Although the Father was always gainfully employed during the marriage and supported the family and their living expenses, he claimed that he is not currently working full-time since November 2018, because he suffered an injury and has several surgeries to his back pending and claims to be earning only $400 per week with Uber and some construction works. However, he owns the marital residence where the Mother and Children reside, but claims that the mortgage payments have not been paid, it is in foreclosure and he “cannot afford anything.” He has three other children from another mother.

The Father further testified that the subject Children visit him twice a month and that he “has a great time with Children and take them to places,” like the park or the zoo. He candidly acknowledged that he “never sees the Children alone because the Grandmother is always with them…we are never alone.” The Grandmother “is always there and his other three kids come over when these kids come.” Although the Father complained that the Children are not appropriately dressed for the weather and appear to be always hungry when the visitation starts, he “just play around [and] have fun” with them and “watch TV together.” He emphasized that he “just play and enjoy my time with the kids there.” If he were granted custody, the Father testified that he would impart good morals to the Children and “groom them to achieve more in life,” than with the Mother, who “lacks morals.”

The Father’s mood turned sour when he started testifying about the Mother saying that she was a “bad housekeeper,” “not a fit parent” and showed photos to the Court of a cluttered kitchen sink, dirty toilet and bathroom and claimed that the house was full of cockroaches when they were together. According to Father, the Mother was always sitting on the couch, chatting on the phone or watching television with the Children. He testified that the Mother has a bad relationship with the Paternal Grandmother, her own family and the Maternal Grandfather. Although he claimed that Mother spanks the Children all the time, he then testified that he “do[es]n’t think these kids are growing within a discipline” and are totally unruly and ungovernable. On the other hand, he “never hits the children.” He also complained that the Mother never had time for the Children and never watched them carefully at home, and that is why the Children got hurt sometimes. In fact, he testified that the Mother went to Florida to “meet with a man” regarding her immigration status and stayed there for six days without planning for the Children’s care here in New York. He stated that he “cannot believe anything from” the Mother, “not a word she says;” “she does not love the Children.”

On cross examination, the Father testified that he has not lived with the Children since 2018 and that he does not know where they go to school, their teachers and “doesn’t know what is going on” with them. He has never asked for the Children’s reports card or progress report, nor bought any books for the Children to help them with their reading, nor any clothing for them as the Grandmother is the one who does that. Nothing prohibited him from obtaining the Children’s school information or records. Although he had seen the Child J.R. having educational delays, the Father testified that he will “not go out of the way” to address J.R.’s educational and spelling issues, but will hire someone to help him. He didn’t know at what time the Children woke up or when they went to sleep because he was always working. Although the Father complained that the house was dirty and unkept upon returning home from work, he never offered to help the Mother with the chores or cleaned the house, because “she made the mess” so she has to clean it. He had never made a report to anyone against the Mother about the house being full of cockroaches and rats, or her hitting the Children or their alleged constant hunger and challenged cleanliness. The Father rested and concluded his case presentation.

On May 6, 2021, after almost four years of trial in the Family Offense and Custody proceedings, all parties rested their cases and summed up with the Father asking the Court for “100 percent custody” arguing that the Mother is an unfit and neglectful parent who lies, travels without the Children, “may have had an extramarital affair,” and only got married to him and pregnant to get her Green Card or permanent residence in the United States. He provided no proposed schedule of parenting time, vacation time or any alternative schedules in the event that the Mother were granted custody. In her summation, the Mother maintains that she should be granted custody of the Children because she has been the primary caretaker of the Children since birth, enrolled them in school, takes them to their doctors’ appointments, and take care of all their needs. She convincingly argued that the Father had “disengaged from the Children’s lives” and only sees them during the weekend without asking about their schooling, teachers, or their health. She suggested that the same visitation schedule be continued for the Father on alternate weekends.

In her summation, the Attorney for the Children supports that custody should go to the Mother with significant visitation to Father. Although both parties have credibility issues, the Attorney for the Children argued that the Mother is not so concerned about the Father’s care of the Children as she has permitted visitation uninterrupted. She suggested that perhaps a 50/50 split in physical custody would work. At the completion of the trial and summations, the Court reserved decision and administratively adjourned the matter for the same to June 10, 2021.

IV.

A court deciding an initial custody petition must determine what is in the children’s best interests, the paramount consideration in any custody dispute (see Eschbach v. Eschbach, 56 NY2d 167, 171 [1982]; Matter of McFarlane v. Jones, ___AD3d___, 2021 NY Slip Op 02392 [2nd Dept. 2021]). The court must consider, among other things, “(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well-being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires” (Matter of Khan v. Potdar, ___AD3d___, 2019 NY Slip Op 72783[U], lv denied 36 NY3d 902 [2020]; see Matter of Supangkat v. Torres, 101 AD3d 889, 890 [2nd Dept. 2012]). Additionally, if domestic violence is alleged, and proven by a preponderance of the evidence, “the court must consider the effect of such domestic violence upon the best interests of the child,” along with all the other relevant factors (Domestic Relations Law §240[1][a]; see Matter of Eckstein v. Young, 176 AD3d 813, 815 [2nd Dept. 2019]; Matter of Biancoviso v. Barona, 150 AD3d 990, 992 [2nd Dept. 2017]; Matter of Wissink v. Wissink, 301 AD2d 36, 39 [2nd Dept. 2002]). Ultimately, “inasmuch as a court’s custody determination is dependent in large part upon its assessment of the witnesses’ credibility and upon the character, temperament, and sincerity of the parents, the court’s exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (Matter of Supangkat v. Torres, 101 AD3d at 890; see Matter of Rulinsky v. West, 107 AD3d 1507 [2nd Dept. 2013]).

Applying these principles to the matter at bar, the Court hereby awards sole legal and physical custody to Mother. This Court has been presiding over this litigation since 2018, has seen the parties numerous times, is very familiar with the issues in the case and with the parties’ demeanor. The record shows that both parents love the subject Children in their own way, but that the Mother is better suited to provide for the overall well-being of the Children’s lives. She has always been the primary caretaker of the Children, has attended to their educational, therapeutic and medical needs, has always being the one going to parent/teacher conferences and has arranged for the Children’s playdates and extracurricular activities. While the Mother showed a nuanced understanding of the Children and their emotional and educational needs and wants, the Father himself displayed a patriarchal point of view, disengaged from the Children and characterized his relationship with the Children as one of just playing and having a good time.

Perhaps because the Father appears to lack formal higher education, his testimony and actions made clear that the Children’s education was not a priority for him. He was not aware — or seemed to seriously care — about the Children’s school, educational deficits, extracurricular activities or medical necessities. On the other hand, the Mother diligently arranges for the Children to attend school, either in person or virtually, and is available to help, encourage and supervise them during the school day. It was undisputed that both Children are doing really well in school. If she has to work, she has family members who can watch the Children including the Grandfather, her Daughter and the Paternal Grandmother. Although the Father professes to love the Children and care about their wellbeing, actions speak louder than words. He has submitted no evidence of any assistance that he has provided to the Mother in caring for the Children, financially or otherwise; he owes significant child support arrears and is letting their residence go into foreclosure. It thus become clear that the Mother has continuously been the Children’s only caretaker, emotional supporter and education supervisor throughout their lives, such that awarding her sole custody would “promote stability,” enrich their educational potential and provide a loving home environment for the Children (Matter of Recher v. Velez, 143 AD3d 828, 829 [2nd Dept. 2016]).

Not only is the Mother clearly better able to provide for the Children’s wellbeing, but she is also more likely to foster their relationship with the Father than he would with respect to the Children’s relationship with her (see Matter of Eckstein v. Young, 176 AD3d at 814-815; Matter of Saylor v. Bukowski, 170 AD3d 862, 863 [2nd Dept. 2019]). Some courts have found that an unwillingness to facilitate that relationship is “an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [parent] is unfit to act as a custodial parent” (see Entwistle v. Entwistle, 61 AD2d 380, 384 [2d Dept 1978]). Throughout the trial here, the Father has displayed a bitterness and poorly veiled hatred toward the Mother, insulting her morals, her truthfulness, and her overall fitness as a mother on the record in open court. Indeed, he would not answer when he was asked whether he will foster the Children’s relationship with the Mother. This condescension towards the Mother would be totally incompatible with an award of custody to the Father.

Moreover, the Court verily believes that an award of custody to the Father will merely translate into an award of custody to the Grandmother or his Adult Daughter, Nia Royal, given his anachronistic paternal views and his apparent disengagement from the Children. The Father testified repeatedly at trial that he would never be left alone taking care of the Children. Either the Grandmother or his Daughter would always be present. In fact, even when the Mother traveled to Florida to visit her brother and work on her immigration papers for a week, the Father declined to stay with the Children for those days or make proper arrangements for their care, instead shipping them to their babysitter’s house or to the Paternal Grandmother for their care. His repeated claims that the Mother was a terrible homemaker reigning over a rat and cockroach infested house, are belied by the COIs in evidence describing a clean, neat and organized house.

Finally, having the benefit of observing the witnesses’ demeanor and listening to their testimony firsthand during the Family Offense and the Custody proceedings, the Court finds the Mother more credible than the Father as to the allegations of domestic violence. Consistent with the Family Offense proceeding, this Court credits her testimony that he had committed several acts of domestic violence against her in the past, including in front of the Children, which weighs against awarding the Father custody of the Children (see Matter of Eckstein v. Young, 176 AD3d at 815; Matter of Felty v. Felty, 108 AD3d 705, 707 [2nd Dept. 2013]; Costigan v. Renner, 76 AD3d 1039, 1040 [2nd Dept. 2010]). The Children apparently described the Father when angry as looking like the fictional character, Hulk. Even one of the Children, T.R., was mimicking the Father’s aggressive behavior by hitting his brother and other children in school, but that behavior disappeared once the Father left the marital residence and their interaction was reduced to visitation. Based on all that, as advocated by the Attorney for the Children, the Father should be awarded liberal visitation rights with a clearly delineated code of conduct wherein he is prohibited from displaying to the Children his anger and condescension for the Mother.

V.

In accordance with the foregoing, this Court hereby grants Mother’s Petition for Custody to her, denies Father’s Cross Petition for custody, and issues the following Final Order of Custody and Visitation:

1. The Mother shall have sole legal and physical custody of the Children.

2. The Father shall have alternate weekend visitation with the Children from Saturdays at 4:00 p.m. to Sundays at 6:00 p.m., commencing on November 27, 2020.

3. The Father is to arrange for the Paternal Grandmother to do all the pick-ups of the Children for his visitation at Mother’s residence curbside, and the Mother shall be responsible for picking up the Children at the end of visitation at Grandmother’s residence. Upon the expiration of the Final Order of Protection, the Father shall do all the exchanges curbside at Mother’s residence.

4. Both parties shall have liberal and reasonable electronic/telephonic access with the Children when they are with the other parent.

5. In addition, the parties shall share other times as follows:

a. The Mother will have Mother’s Day each year, and the Father will have Father’s Day each year.

b. February school break: The Father will have the February school break each year.

c. In Even years, the Father will have the Spring/April school break. In odd years the Mother will have that break.

d. In even years, the Father will have Easter Day. In odd years, the Mother will have Easter Day.

e. In odd years, the Father will have Thanksgiving Day. In even years, the Mother will have Thanksgiving Day.

f. In odd years, the Father will have Christmas Eve and the Mother will have Christmas Day. In even years, the Mother will have Christmas Eve and the Father will have Christmas Day. In addition, in even years the Father will have the December school break from the last day of school until New Year’s Day at 3:00 p.m. In odd years, the Mother will have the December school break under the same terms.

g. On the Children’s birthday, each parent shall see the Children on that special day.

6. The Father shall also be entitled to four (4) weeks of time with the Children each summer (July-August). The Father shall notify the Mother of the weeks he is selecting by May 15th of each year. Both parties will be permitted to travel outside of the state and country with the Children on advanced notice to the other parent with a full itinerary of dates, travel, hotels, and contact information where the Children can be reached at all times.

7. There should be any other visitation as agreed upon between the parties. The parties may also modify or expand the schedule on mutual consent in writing.

8. Neither of the parties is to insult or disparage the other to or in the presence of the Children, nor to discuss these proceedings with or in the presence of the Children.

9. Neither the parents nor third parties shall inflict excessive corporal punishment on the Children.

10. The Children shall be under adult supervision at all times during the visitation.

11. Father shall have access to the Children’s educational, medical, dental and extracurricular activities with the Mother adding the Father’s name to the school’s BlueCard and providing him the initial information.

12. During the Covid Pandemic, the parents are to provide the Children with masks/cloth face coverings, engage them in frequent handwashing and practice social distancing as required by government regulations.

13. The Mother is also ordered to provide the Father with copies of the Children’s Social Security cards, passports, and medical forms as soon as practicable.

The foregoing constitutes the Decision, Order and Judgment of the Court. The June 10, 2021 court appearance is hereby canceled.

NOTICE:

Pursuant to Section 1113 of the Family Court Act, an appeal from this Order must be taken within 30 days of receipt of the Order by Appellant in Court, 35 days from the date of mailing of the Order to the Appellant by the Clerk of Court, or 30 days after service by a party or the Attorney for the Child upon the Appellant, whichever is earliest.

Check applicable box:

Order mailed on (specify date[s] and to whom mailed):

Dated: June 7, 2021

Footnotes

1. During a virtual court conference via Microsoft Teams, the Father's counsel respectfully requested for the Court to help him dissuade the Father from going to trial to pursue custody of the Children, based on the existence of the Final Order of Protection against him and the fact that his visitation was going well. The Court delicately informed the Father that, although it will keep an open mind and hear all evidence in the case, precedent generally would not support an order of custody to him given the existence of the five-year Final Order of Protection, which was just affirmed on appeal. Interrupting, the Father engaged in an angry diatribe belittling the court proceedings, stating that the Mother had accused him of putting his penis on one of the Children's butt and how could she be custodian and give him more visits, does "she wants me to continue raping my Child?" Neither the Court nor the Attorney for the Child was aware of that shocking allegation. He also started threatening counsel that whoever gives custody to Mother "should have a slow and painful death." The Court warned the Father not to engage in any behavior which might be construed as threatening the Court or counsel, or he could be held in contempt of court.

SEEKING ATTORNEY FEES IN FAMILY COURT CUSTODY VIOLATION

Matter of S.M. v. L.M., NYLJ| April 09, 2021, Date filed: 2021-03-19, Court: Family Court, Nassau, Judge: Judge Linda Mejias:

"It is unrefuted that the Petitioner failed to comply with Article XXX of the Stipulation, which requires proper notice of any alleged default in the parties’ custody arrangement to be sent in writing to the defaulting party, and served by mail, return receipt requested, within twenty (20) days of said default. Though the provision does not set forth an explicit waiver of the right to seek fees under a relevant statute, provisions such as these are aimed at reducing the parties’ need for court intervention thereby limiting their exposure to unnecessary legal fees. While no one can guarantee that a non-compliant party will cure a default, the hope is that they will and that litigation will therefore not be necessary.

Generally, “[w]here the parties have agreed to provisions in a settlement agreement which govern the award of attorney’s fees, the agreement’s provisions, rather than statutory provisions, control” (Matter of Berns v. Halberstam, 46 A.D.3d 808, 809, 848 N.Y.S.2d 323 [2007]; accord Matter of Tanenbaum v. Caputo, 81 A.D.3d 839, 839, 916 N.Y.S.2d 811 [2011]; see Gardo v. Radominski, 252 A.D.2d 971, 972, 676 N.Y.S.2d 371 [1998]). “However, a party may seek the recovery of fees under both the statute and an agreement, unless the agreement contains an express waiver of the right to apply under the statute…, [and] provided that the party may not recover twice for the same fees” (Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 14, Domestic Relations Law §237 at 19; see generally Millard v. Millard, 246 A.D.2d 349, 350, 667 N.Y.S.2d 714 [1998]; Canick v. Canick, 122 A.D.2d 767, 768-769, 505 N.Y.S.2d 652 [1986]). Where there is no express waiver, a statutory award of counsel fees remains discretionary (see Canick v. Canick, 122 A.D.2d at 769, 505 N.Y.S.2d 652).

Notwithstanding his failure to comply with the Stipulation, the Court is compelled to apply D.R.L. §238 given the absence of an express waiver. Domestic Relations Law §238, provides, in relevant part, as follows:

In any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce…the court may in its discretion require either party to pay counsel fees…to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In any such action or proceeding, applications for fees and expenses may be maintained by the attorney for the respective parties in counsel’s own name and in counsel’s own behalf…Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their representative attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section [emphasis added].

Now, applying the foregoing to the instant application, the Petitioner’s motion must still be denied. The statute is clear that applications must be made prior to the final judgment. Here, the instant motion was filed well after the petition was settled on consent. It is noteworthy that at no time during any settlement conferences did Petitioner’s counsel express an intent to seek an award of counsel fees by motion nor did counsel explicitly preserve her right to seek such fees. Though the retainer annexed to the moving papers includes seeking reimbursement for legal fees within the description of services to be rendered, same does not constitute an affirmative preservation of the right to seek fees. Next, the statute also explicitly requires that an application for counsel fees include an affidavit from the parties and their respective counsel outlining, inter alia, the amount of the retainer and the hourly rate to be charged by the attorney. No such affidavit was filed with the Petitioner’s motion and attaching a retainer agreement is insufficient.

To take the analysis one step even further, it is well-settled that the Family Court has the authority to award counsel fees in a custody proceeding, when warranted under the particular circumstances of the case (see, Domestic Relations Law §237[b]; Family Ct. Act §651[b]; Luo v. Yang, 104 A.D.3d 852 [2nd Dept. 2013]), having regard for the complexities of the case, the relative merits of the parties’ positions, as well as the parties’ respective financial positions (see, DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881; Catto v. Howell, 144 A.D.3d 1146 [2nd Dept. 2016]; Liebenstein v. Irani 125 A.D. 3d 970 [2nd Dept. 2015]). Here, this matter was not protracted, a trial was not conducted, and the actual time spent resolving this matter on consent was reasonable in view of the nature of the proceedings. Further, both the record and the instant motion are devoid of any documentation to support the Petitioner’s contention that he cannot afford to pay his own legal fees. Although Petitioner’s counsel claims that she performed “numerous hours of legal work”, her barebones statement is completely unsupported by any billing/time statements, a detailed affirmation of services.

Now, therefore, after having thoroughly read and considered the papers submitted by the parties relative to the instant motion, and after thoughtful consideration of the circumstances of this case, this Court, as within its discretion and for all the reasons set forth herein above, finds that an award of counsel fees would be unjust and inappropriate (see, Sawyer v. Yuan, 95 A.D.3d 1133 [2nd Dept. 2012], Detouche v. Shepherd, 42 A.D.3d 453 [2nd Dept. 2007], Pane v. Pane, 26 A.D.3d 386 [2nd Dept. 2006]), as the record is devoid of any legal or factual basis for such an award. "

A FAMILY OFFENSE INVOLVES A FAMILY

Matter of KR v. FB, NYLJ October 26, 2020, Date filed: 2020-10-19, Court: Family Court, Suffolk,  Judge: Judge Paul Hensley:

"....The motion to dismiss properly does not challenge that the rape framed as forcible touching and sexual misconduct constitutes behavior that qualifies as a family offense as set forth in Family Court Act §812. The motion asserts that the Petitioner and Respondent are not members of the same family or household. In other words, the relationship between Petitioner and Respondent does not fall within a category set forth in Family Court Act §812 (a) — (e).

The Court reviewed the motion papers, and heard testimony on October 6, 2020 (see, Matter of Raigosa v. Zafirakopoulos, 167 AD3d 748, 89 NYS3d 322 [2d Dept 2018]). Petitioner and Respondent are not legally married to one another (Family Court Act §812 [1] [b]), nor were they ever married (Family Court Act §812 [1] [c]). They do not have a child in common (Family Court Act §812 [1] [d]). Moreover, Petitioner and Respondent are not related by consanguinity (Family Court Act §812 [1] [a]). 

Therefore, the two remaining bases on which a qualifying relationship may be found are affinity and intimate relationship.

Affinity

A relationship of affinity is ‘the relation that one spouse has to the blood relatives of the other spouse; relationship by marriage’ (Black’s Law Dictionary 70 [10th ed 2014]) (Matter of Arnold v. Arnold, 119 AD3d 938, 939, 989 NYS2d 879, 880 [2d Dept 2014]). A relationship meeting Family Court Act §812′s requirements exists when the petitioner and respondent are linked by a combination of consanguinity and affinity, such as a child who is the blood relative of the child’s parent (consanguinity) and therefore has a relationship by affinity with the parent’s spouse (frequently called a step-parent) (Id.["(W)hile spouses remain married, a stepchild is related by affinity to a stepparent"]), The two steps are consanguinity between child and parent (step one) and affinity between the parent and the stepparent (step two).

Here, Petitioner’s mother is married to someone other than Petitioner’s biological father. Petitioner’s mother’s husband (hereafter, “Stepfather”) has a sister (hereafter, “Stepaunt”) who is married to Respondent (“Stepuncle”). Thus, unquestionably, Petitioner has an affinity relationship with Stepfather by authority of Arnoldwhich covers the first two steps in the relational chain.

However, the third step of the relationship chain between Stepfather and Stepaunt is the subject of an anomaly among the Departments. In Matter of Bibeau v. Ackey, (56 AD3d 971, 869 NYS2d 244 [3d Dept 2008]), the Third Department held that a child has a relationship of affinity with the spouse of the sibling of the child’s parent. In Bibeau, the child’s mother’s (parent, step one) sister’s (aunt, step two) husband (non-blood uncle, step three) was the respondent in a petition brought on behalf of the child.
In Matter of Rizzo v. Pravato, (170 AD3d 860, 96 NYS3d 121 [2d Dept 2019]), the Second Department held that no relationship of affinity exists between a child and the sibling of that child’s stepparent which as described above is step three. Applying Rizzoto this case, no relationship of affinity exists between Petitioner and the Stepaunt (step three), thereby breaking the chain of consanguinity and affinity connections necessary to establish a relationship of affinity between Petitioner and Respondent.
The only difference between Bibeauand Rizzois that the relationship is through a parent (Bibeau) versus through a stepparent (Rizzo). In other words, in this case, had Petitioner’s mother’s (as opposed to Petitioner’s stepfather’s) sibling’s spouse been the respondent, then a relationship of affinity would exist.

This Court is powerless to disregard Rizzobecause when the Departments conflict, and a Second Department case is on point, trial courts in this Department must follow the Second Department precedent (Mountain View Coach Lines v. Storms, 102 AD2d 663, 476 NYS2d 918 [2d Dept 1984]).
Therefore, Respondent prevails on the motion to dismiss unless Petitioner and Respondent have an “intimate relationship” (Family Court Act §812 [e]). Rizzo stands for the proposition that even when an affinity relationship is absent, the courts must determine “whether persons are or have been in an ‘intimate relationship’ within the meaning of Family Court Act §812 (1) (e) [which is] a fact-specific determination which may require a hearing” (Rizzo, 170 AD3d at 861- 862, 96 NYS3d at 123).

Intimate Relationship

“Factors the court may consider in determining whether a relationship is an ‘intimate relationship’ include, but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” (Family Court Act §812 [1] [e]).

Nature of the Relationship
Relative-like Relationship.

The nature of the relationship is, in familial functional effect, uncle and niece. The hearing testimony was that the Petitioner visits at and spends family event time at the Respondent’s home. This family tree relationship support finding that an intimate relationship exists.

Sexual Nature of the Relationship.

Family Court Act §812 vests the family court with jurisdiction over certain sex offenses, so the face of the statute clearly contemplates sex, and not romance, as a factor to consider. The relationship between Petitioner and Respondent alleged in the Petition and described at the hearing is sexual. That the relationship has a sexually violent component, as alleged, does not make the relationship non-sexual; instead, the violence makes the relationship sexual and violent, not simply non-sexual. The statutory language “regardless of whether the relationship is sexual in nature” means that a sexual relationship is not a necessary element of finding an intimate relationship. That language does not mean to ignore a sexual component to a relationship.

The Petition alleges that Petitioner and Respondent were kissing. Petitioner registered no objection to the kissing. When the Respondent intensified the parties sexual contact in the back of Respondent’s car in a dark parking lot sometime shortly after 4 a.m., Petitioner “told [Respondent] not to do that” (Petition at 2). When, as the Petition alleges, Respondent intensified the parties sexual contact and began having sexual intercourse with the Petitioner, who had no transportation save for the Respondent’s car, the sexual relationship became violent.

The sexual nature of the relationship supports finding that this is an intimate relationship.

Trusting Nature of the Relationship.

Petitioner did not allege, and no hearing testimony suggests that Petitioner made, any objection to (a) leaving Petitioner’s car at Petitioner’s workplace at the 4:00 a.m. end of Petitioner’s work shift; (b) having Respondent drive with Petitioner at 4:00 a.m. from the workplace parking lot where Petitioner’s car was parked; (c) Respondent kissing Petitioner. Petitioner’s objections began when Respondent was “moving his hand down [Petitioner's] back” (Petition at 2).

Something led the Respondent to arrive in Respondent’s car at Petitioner’s workplace at 4:00 a.m., when the Petitioner’s work shift ended. This Court finds that Respondent knew the Petitioner’s work schedule and arrived at the workplace on purpose intending to meet up with the Petitioner. That Respondent knew the Petitioner’s schedule demonstrates that this was not a “casual acquaintance” connection (Family Court Act §812 [1] [e]). To the contrary, the absence of objections and the Respondent’s awareness shows the trust-based nature of the relationship.

Frequency of Interactions and Duration

The parties interact and/or interacted with sufficient frequency to support a finding of an intimate relationship and have done so for a sufficient duration.

Conclusion

The purpose of the article 8 proceeding is “to stop the violence, end the family disruption and obtain protection” (Family Court Act §812 [2] [b]). This language helps illustrate that the degree of connection between petitioners and respondents should have some of the hallmarks of family relationships like trust.

Based on the foregoing analysis of the various factors, this Court concludes that Petitioner has established that this Petitioner and this Respondent are members of the same family or household because they have or have had an intimate relationship as defined in Family Court Act §812 (1) (e)."