CHILD CARE - GROUP OR FOSTER HOME - THE LEAST RESTRICTIVE PLACEMENT?

MATTER OF FELIPE R., 2022 NY Slip Op 22216 - Bronx Family Court 2022:

"The Administration for Children's Services ("A.C.S." hereafter) filed the underlying neglect petition against Iris C. on January 13, 2022. The petition alleges that she neglected the subject child, Felipe R., under Family Court Act ("F.C.A" hereafter) § 1012, in that she used excessive corporal punishment against him and his sister, Judith R. Ms. C. was previously found to have neglected another sibling, Victor R., on January 26, 2022, through a submission under F.C.A. §1051a.

On April 18, 2022, ACS filed Motion No.4 seeking an order under F.C.A 1055-c that continued QRTP placement is necessary to adequately address Felipe's needs; the attorneys for the child and for the mother, ask that this application be denied.^[1]

The hearing commenced on June 6, 2022 and continued through June 22, 2022. ACS entered three documents as Petitioner's 1-3: the QI for Felipe; the CALOCUS for Felipe; and the Summary Document for Felipe. Each of these was prepared by the ACS Qualified Individual (QI) who also testified concerning the basis for her recommendation that Felipe's needs require continued placement in a qualified residential treatment facility. ACS did not submit any other testimony or witnesses.

In response, the Attorney for the Child cross examined the QI and marked as AFC #1 a report entitled "Away from Home: Youth Experiences of Institutional Placements." ACS objected to admitting this document as lacking foundation. The Court reserved decision.

The Court has now reviewed the document and finds that it is admissible under CPLR 4532, which covers the admission of periodicals of general circulation. "Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to printed materials purporting to be newspapers or periodicals of general circulation; provided however, nothing herein shall be deemed to preclude or limit the right of a party to challenge the authenticity of such printed material, by extrinsic evidence or otherwise, prior to admission by the court or to raise the issue of authenticity as an issue of fact." ACS did not challenge the validity or authenticity of the report. The report, prepared by Think of Us, a non-profit policy and research organization dedicated to child welfare practice, was supported by the Annie Casey Foundation and released in July 2021. Through structured research with foster youth, the authors document the negative impacts of unnecessary group home placement. It has been widely distributed and reported on, including forming a basis for an editorial published in the New York Times.^[2]

Additionally, all parties agree that hearsay is admissible under 1055-c, under FCA 1046(c) which reads: "In a dispositional hearing and during all other stages of a proceeding under this article, except a fact-finding hearing, and in permanency hearings and all other proceedings under article ten-A of this act, only material and relevant evidence may be admitted."

This report qualifies under CPLR 4532 and is both material and relevant and is therefore admitted as AFC #1.

LEGAL STANDARD FOR QRTP

This decision pertains to a contested hearing pursuant to SSL §393(2), F.C.A. §353.7(3), §756-b(3), §1055-c(2), §1091-a, and §1097, through which the Family First Prevention Services Act (FFPSA), 42 U.S.C. §672 and §675a are codified in NY State. This statute, in relevant part, is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily. The Court is asked to determine the most appropriate and least restrictive placement possible for Felipe. Specifically, in order to maintain his current placement, the Court must determine whether 1) Felipe's needs can/cannot be met through a placement in family-based foster care; 2) a group placement is the most effective and appropriate placement; 3) placement is the least restrictive possible placement given Felipe's needs; and 4) such placement is consistent with the long- and short-term planning goals in place for the subject child. If the Court determines that placement in a QRTP is required, it must specifically state the basis for that decision and whether an alternative setting could meet the child's needs.

DECISION

The Court has reviewed all the evidence and testimony and finds that ACS has failed to meet its burden under FFPSA and FCA 1055-c.

Felipe has autism. He struggles with self-soothing, hygiene, expressing his needs, and other basic tasks. However, he forms meaningful bonds with family, including with his mother and siblings. Moreover, Felipe will need the same basic assistance whether he is in a group setting; at home; or in a therapeutic foster home. The services that he currently receives at his group home, including assistance with hygiene, school, and occupational therapy, are available in the community. Indeed, until the filing of the underlying petition, he has been living with his adoptive mother and siblings where his basic needs have been met even without extensive additional services. Felipe was also receiving speech, physical, and occupational therapy through his District 75 school placement. ACS's documentation does not present any evidence of a change in his medical, physical or emotional circumstances that would demonstrate a sudden compelling reason for his placement in a residential treatment facility as opposed to a family setting.

Are some things easier to accomplish in a group home? Sure. The Court can see that it would be easier to attend to Felipe's needs in a group care facility where there are numerous trained professionals and an on-site school. But that is not the standard that either ACS or the Court is asked to use. Rather, the Court must find that the setting is the least restrictive possible. A qualified individual is required to complete an assessment in order to aid in that determination. In assessing the most effective and appropriate level of care, the qualified individual must consider "whether the needs of the child can be met with family members or through placement in a foster family home." SSL § 409-h (1)(a). If the qualified individual does determine that a child may not be placed in a foster family home, they must specify the reasons why. Id. at (1)(c). "A shortage of or lack of foster family homes shall not constitute circumstances warranting a determination that the needs of the child cannot be met in a foster family home." Id. Nothing in the ACS evidence explains whether Felipe's needs can be met through a family foster home setting or documents that a QRTP is the least restrictive setting for Felipe. To the contrary, the QI admitted during her testimony that she did not base her placement recommendation on a comparison between different possible placements. Rather, she relied on the tools provided to her by ACS. None of these tools adequately requires the QI to document alternatives or consider the pros and cons of each, despite their statutory obligation. Perhaps they should. Instead, the ACS QI was forced to admit that she did not consider whether Felipe could receive OT in the community, had not spoken with his District 75 school; was not aware of the potential downside of group home placement; and did not observe or speak with Felipe directly. Further, the Qualified Individual Report clearly states that initial attempts were made to place Felipe in a therapeutic foster home, but no homes were identified.

Most importantly, ACS did not adequately account for how placement in a residential treatment center would impact Felipe's planning goals. The goal is for Felipe to return home. He is only 10 years old. He is currently among the youngest residents of Edenwald and, even according to ACS reports, did not transition to group care easily; he has received bruises during his stay there; he does not share well and continues to act out during group activities. But most importantly, as documented in "Away from Home," young people placed in group facilities lack access to the kind of love and support that is possible in a family setting.^[3] Felipe, as shown through his connection to his current family, benefits from long-term relationships and should not be denied that opportunity any longer.

The Court finds that a placement in group home is not the least restrictive placement possible forFelipe; nor is it consistent with his short- or long-term needs. To find otherwise would essentially mean that any child suffering from relatively severe autism can only live in a group facility.

FINDING AND ORDER ON QRTP: The Court finds that under the requirements of Family First, ACS must seek a therapeutic foster home or, if after the 1028 hearing is complete, Felipe is returned home, provide adequate at home services consistent with Felipe's short- and long-term needs.

WHEREFORE, THIS CONSTITUTES THE ORDER OF THE COURT.

[1] ACS also filed a motion seeking approval for Judith R.'s placement in a QRTP; however, the QI assessment did not recommend continued placement and at the conclusion of the hearing the court denied the application on consent of all parties.

[2] "I will never forget that I could have lived with a family who loved me," New York Times, Sept 16, 2021

[3] See, "Away from Home," www.thinkof-us.org/case-studies/away-from-home; Finding 5.1, "Youth Lacked Love."

FATHER FILES PATERNITY PROCEEDING FOR CHILD BORN TO MARRIED COUPLE

Matter of K.B. v R.S., 2020 NY Slip Op 50958(U), Decided on August 18, 2020, Family Court, Onondaga County, Hanuszczak, J.:

"On December 23, 2019, Petitioner K.B. filed a petition seeking to be adjudicated the father of the unborn child of the Mother R.S. (the Mother). An amended petition was subsequently filed on February 6, 2020 including the name of the child as L.R.S., born on January 17, 2020. The Mother filed a motion to dismiss the paternity petition on February 7, 2020, arguing that the instant petition did not state a claim upon which relief may be granted because she is married and the petition did not establish non-access on the part of her husband. On February 19, 2020, the matter was heard before the Support Magistrate, who referred the case to this Court to address the issues of the presumption of legitimacy based upon the fact that the Mother was married at the time of the child's birth. The Mother's husband, Mr. S. S., appeared before the Support Magistrate on February 19, 2020 and before this Court on March 9, 2020. The Court assigned an Attorney for the Child (AFC) to represent the interests of the child L. on March 9, 2020. After receiving the arguments of counsel, including the Attorney for the Child, this Court denied the motion to dismiss in a written decision on April 28, 2020.

This Court held appearances with counsel via Skype for Business on July 8, 2020 and July 23, 2020. During the July 8, 2020 conference, the Court adjourned the matter to July 23, 2020 to address the issue of equitable estoppel. On the July 23, 2020 date, the Court entertained arguments from counsel concerning equitable estoppel. At that point, the Mother's counsel indicated that he had filed for an interlocutory appeal of this Court's decision denying the Mother's motion to dismiss the petition and was seeking a stay. As of today's date, the Court is unaware that any stay has been granted by the Appellate Division in this matter.

During the July 23, 2020 settlement conference, the Court specifically asked counsel about any potential irreparable harm that would be suffered by the child if genetic marker testing was permitted. The Mother's counsel did not make any specific argument on this point. The Court notes that the Mother has not raised equitable estoppel at all in her filings. The Attorney for the Child argued that the child has lived with Mr. S. (the Mother's husband) all of his life and knows Mr. S. as his father. Mr. B.'s counsel asserted that no hearing was required and that any further delay would further prejudice his client. The Court indicated that it would issue a written decision on whether a hearing was required and whether a genetic marker test would be ordered in this matter.

Family Court Act §532 provides that the Court "shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests" on its own motion or the motion of any party (§532(a)). The statute further states that "no test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married [*2]women" (Id.). The Court, after a review of the pleadings and based upon the arguments of counsel, finds in this matter that it is in the best interests of the child to order a genetic marker test. Under the unique circumstances of this case, no hearing is warranted (Matter of Marilene S. v David H., 85 AD3d 1035 [2nd Dept 2011]).
The Court has considered whether the Mother's marriage to Mr. S. is a bar to a genetic market test in this case. The Court notes the statute "does not impose a blanket prohibition on genetic testing whenever the presumption of legitimacy is found to apply" (Matter of Mario WW v Kristin XX, 173 AD3d 1392 [3rd Dept 2019]). Once Mr. B. made sufficient allegations that a nonfrivolous controversy exists as to paternity, the burden shifted to the Mother to demonstrate "why testing would not be in the [child's] best interests, and she can not simply rely upon the presumption of legitimacy" (Matter of Gutierrez v Gutierrez-Delgado, 33 AD3d 1133 [3rd Dept 2006]). The Mother must show more than just that the presumption applies, "but also that, given the entirety of the circumstances, including the applicability of the presumption, such testing will not serve the best interest of the child" (Prowda v Wilner, 217 AD2d 287 [3rd Dept 1995]). The Mother has not made such a showing.
In reviewing whether the marital presumption should preclude genetic testing, the Court has considered the following factors: "the child's interest in knowing the identity of his or her biological father, whether testing may have a traumatic effect on the child, and whether continued uncertainty may have a negative impact on a parent-child relationship in the absence of testing" (Matter of Mario WW v Kristin XX, 149 AD3d 1227 [3rd Dept 2017]). The Court has also considered the husband's relationship with the child, any potential trauma to the child from identifying someone else as the father of the child and "the very real disruption to the stability of the child's existing family that would result" (Matter of Christopher YY v Jessica ZZ, 159 AD3d 18 [3rd Dept 2018]).

In this case, Mr. B. filed the paternity petition before the child was born (Family Court Act §517), which put all parties on notice that he was claiming to be the father of the child. The Court finds that, with respect to the first factor, the child "certainly has an interest in knowing the identity of her biological father" (Matter of Anthony M., 271 AD2d 709 [3rd Dept 2000]). Given that the child is currently seven (7) months old and that the petition was filed before her birth, the Court finds that any genetic market testing would not be traumatic to the child. The Court has also considered that continued uncertainty could have a traumatic effect on the child, particularly as the child grows older. A determination at this age is in the best interests of the child.

The Court has additionally considered whether testing would disrupt an intact family unit in this case. Initially, the Court notes that since the petition was filed before the child's birth, any bonding between the child and Mr. S. that has occurred was created by the Mother, despite knowledge of Mr. B.'s petition. Accordingly, any lack of involvement with the child on the part of Mr. B. is due to the Mother's actions, not due to any lack of effort on the part of Mr. B. While the Court does recognize the possibility that genetic marker testing in this case could upset the current living situation of the child, the Court finds that the child's interest in knowing the identity of her father outweighs that concern, especially given the fact that the child is under a year old. The Court additionally notes that if Mr. B. is the father of the child, any further delay would significantly impact his ability to form a relationship with the child. Accordingly, the Court finds that the marital presumption does not preclude a genetic marker test in this case.This case can be distinguished from Matter of Tracy C.O. v Douglas A.F., because in that [*3]case, the petition was not filed until the child was almost eight years old (66 AD3d 1390 [4th Dept 2009]). Additionally, an Attorney for the Child has been assigned in this matter and the Court here has considered the specific best interests of the child.

With respect to equitable estoppel, the Court finds that a prima facie case has not been made that is sufficient to prevent a genetic market test in this case. The Court of Appeals explained that "the purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted" (Matter of Shondel J. v Mark D., 7 NY3d 320 [2006]). "The law imposes the doctrine as a matter of fairness" (Matter of Young v Rios, 151 AD3d 1862 [4th Dept 2017]).Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position" (Matter of Shondel J. at 326). This doctrine may be used to "prevent a biological father from asserting paternity rights when it would be detrimental to a child's interests to disrupt the child's close relationship with another father figure" (Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1 [2010]). It is generally imposed "to protect the status interests of a child in an already recognized and operative parent-child relationship" (Matter of Suffolk County Department of Social Services v James D., 147 AD3d 1067 [2nd Dept 2017]). The best interests of the child is the "paramount concern" (Matter of Greg S. v Keri C., 38 AD3d 905 [2nd Dept 2007]).

The party raising the issue of equitable estoppel bears the initial burden of proof (Matter of Starla D. v Jeremy E., 95 AD3d 1605 [3rd Dept 2012]). In this case, the Mother did not specifically raise the issue of equitable estoppel (See, Matter of Beth R. v Ronald S., 149 AD3d 1216 [3rd Dept 2017]). The Attorney for the Child may also invoke the doctrine of equitable estoppel (Matter of Cleophous P. v Latrica M.R., 299 AD2d 936 [4th Dept 2002]) as she has in this case. An equitable estoppel issue may be decided without a hearing "if Family Court possesses sufficient information to render an informed decision consistent with the child's best interests" (Matter of Edward WW v Diana XX, 79 AD3d 1181 [3rd Dept 2010]).

The Court finds that a prima facie case of equitable estoppel has not been made in this case. An essential element of equitable estoppel is that the purported biological father must have acquiesced to allowing another man to act as the child's father. In this case, Mr. B. did not acquiesce to Mr. S. developing a relationship with the child, in that he filed his paternity action before the birth of the child (See, Matter of John J. v Kayla I., 137 AD3d 1500 [3rd Dept 2016]). No claim has been made, nor could there have been on these facts, that Mr. B. permitted Mr. S. to act as the child's father, to the detriment of the child. The Court finds that a hearing in this matter is not required, as the Court has "sufficient information to render an informed decision consistent with the child's best interests" (Matter of Razo v Leyva, 3 AD3d 571 [2nd Dept 2004]) and no prima facie case of equitable estoppel has been established.

Moreover, there have been no specific claims that "the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if a genetic marker test was ordered" in this case (Matter of Denise R-D v Julio R.P., 179 AD3d 704 [2nd Dept 2020]). The importance of this young child discovering the identity of her father is also a relevant consideration (Matter of William X v Linda Y, 132 AD3d 1195 [3rd Dept 2015]). While the AFC has alleged that the child would be harmed if testing was ordered, that blanket allegation alone, without any specific claim of harm to the child or irreparable loss [*4]of status, is insufficient to trigger a hearing in this case. Further, as the petition was filed before the child was born, there was no operative parent-child relationship between Mr. S. and the child (See, Matter of Luis V v Laisha P.T., 184 AD3d 648 [2nd Dept 2020]).

The Court is mindful that this petition was filed before the subject child was born and the child is now over seven months old. The COVID-19 pandemic has contributed to the delay in this case. A hearing in this matter would delay the resolution of paternity and undoubtedly prejudice Mr. B., who filed his petition on December 23, 2019. It would also be contrary to the best interests of the child, who has lived with uncertainty since her birth on January 17, 2020, and who deserves to know the identity of her father. Mr. and Mrs. S. also deserve an expeditious resolution to this matter. Any further delay in this matter will undoubtedly cause the child to become further entrenched in an uncertain familial situation; circumstances which presumably Mr. B. was attempting to avoid in filing this paternity action at the earliest possible opportunity. At the time Mr. B. filed the petition, the child had no relationship with Mr. S. Waiting any longer would only serve to create or cement such a relationship, at the expense of Mr. B. This would additionally be manifestly unfair to the child, who could be missing out on precious time with a potential biological father.

The Court finds that a genetic marker test is in the best interests of the child L. The matter shall be returned to the Support Magistrate for a genetic marker test to be scheduled and for further proceedings. Mr. B. shall bear the cost of the testing."

FAMILY LAW - MENTAL ILLNESS AND REMOVAL OF CHILD

MATTER OF GAVIN S., 2016 NY Slip Op 51234 - NY: Family Court 2016:

"FCA §1027 provides that if, after a hearing, "the court finds that removal is necessary to avoid imminent risk to the child's life or health, it shall remove or continue the removal of the child." FCA § 1028, provides that, upon the application of a parent for the return of his or her child who has been removed from his or her care, and following a hearing, "the court shall grant the application unless it finds that the return presents an imminent risk to the child's life or health." In either case, the court must determine if the child's "life or health" would be at "imminent risk" of harm in the respondent's custody and, additionally, whether remaining in or returning to the home would be contrary to the child's best interests (FCA§1027(a)(I); FCA§1028(b); Nicholson v. Scoppetta, 3 NY3d 357, 377 [2004]).

"In order to justify a finding of imminent risk to life or health ... an agency need not prove that the child has suffered actual injury. Rather, a court engages in a fact-intensive inquiry to determine whether the child's [physical or] emotional health is at risk" (Nicholson, 3 NY3d at 377). In reaching its determination, the "court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal; [i]t must balance [the risk to the child's life or health] against the harm removal might bring; and it must determine factually which course is in the child's best interests" (id. at 378); see also Matter of DeAndre S. (Latoya F. S.), 92 AD3d 888 [2d Dept. 2012]). The language and legislative history of the statute establish that "a blanket presumption favoring removal was never intended" (Nicholson, 3 NY3d at 378; see also Matter of Jesse J. v. Joann K., 64 AD3d 598, 599 [2d Dept 2009]). The Legislature placed "increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble only by removing the child from the family" (Mark G. v Sabol, 93 NY2d 710, 719 [1999]; see also Nicholson, 3 NY3d at 374).

A mental illness that causes a parent to act in a way that presents an imminent risk to his or her child's life or health may support a removal of the child from the parent's care under FCA §1027, just as a finding of neglect under FCA §1012 may be predicated "upon proof that a child's physical, mental, or emotional condition was impaired or was placed in imminent danger of becoming impaired as a result of a parent's mental illness" (see, e.g., Matter of Soma H., 306 AD2d 531[ 2d Dept 2003]). However, just as "proof of mental illness alone will not support a finding of neglect" (Matter of Joseph A. [Fausat O.], 91 AD3d 638, 640, [2d Dept 2012]), neither will it support a removal of the child from the parent's care in the absence of evidence that the parent's illness creates an imminent risk to the child's life or health. As the Court of Appeals cautioned in Nicholson, "[t]he plain language of [FCA§1027] and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm." (3 NY3d at 378 [emphasis in original]). There must be proof of an identifiable, specific, serious and imminent risk to the life or health of the child (see Nicholson, 3 NY3d at 377 [the court must engage "in a fact-intensive inquiry" to determine whether the child's life or health is at risk]) caused by the parent's mental illness. In determining whether removal is necessary to avoid imminent risk to the child's life or health, the statute also requires the court to consider "whether continuation in the child's home would be contrary to the best interests of the child and where appropriate, whether reasonable efforts were made ... to prevent or eliminate the need for removal...." (FCA§1027(b)(ii)). In sum, if the court determines that an imminent risk to the child's life or health exists, it "must weigh, in the factual setting before it, whether the ... risk to the child can be mitigated by reasonable efforts to avoid removal, ... balance that risk against the harm removal might bring, and ... determine factually which course is in the child's best interests" (Nicholson, 3 NY3d at 378; see also Matter of Baby Boy D. (Adanna C.), 127 AD3d 1079 [2d Dept. 2015]).The Court in Nicholson also stressed that "imminent" means "near or impending, not merely possible" (3 NY3d at 369; see also Baby Boy D., 127 AD3d at 1080 ("imminent" risk must be shown to justify removal).

......

As previously noted, a parent's mental illness, standing alone, is not a basis for a neglect finding (Matter of Joseph A., supra, 91 AD3d at 640). A fortiori, it does not justify removal of a child from his parent's care in the absence of evidence that the child's life or health is in imminent risk of harm as a result of that illness (cf. Nicholson, 3 NY3d at 375 (exposure of a child to domestic violence is not presumptively neglectful, so "a fortiori, [it] is not presumptively ground for removal, and in many instances removal may do more harm to the child than good"). Where no such imminent risk has been shown, a removed child must be returned to the parent (see, e.g., In the Matter of Jeremiah L., 45 AD3d 771 [2d Dept. 2007]; FCA§1028(a) ("court shall grant the application [for return of a child], unless it finds that the return presents an imminent risk to the child's life or health") [emphasis added]). ACS's speculative concern that Ms. S might have be hospitalized again for her mental illness cannot serve as a basis for a finding of "imminent risk" (see Baby Boy D., 127 AD3d at 1080 [speculation that the mother might not enforce an order of protection against the father could not support a finding of imminent risk to the child's life or health]), particularly when she has been consistent with all aspects of her mental health treatment and has cooperated with the services that were put in place for her and Gavin.

As ACS failed to establish that Gavin's life or health were ever placed in imminent risk as a result of Ms. S's mental illness, ACS's application under FCA§1027 must be denied, and Gavin must be returned to his mother....."

FOR THOSE IN OHIO - A BLOG ON FAMILY LAW

I checked out this blog and although it mainly concerns itself with family law issues in Ohio, there are words of wisdom for New Yorkers too.

Check it out: http://www.ohiofamilylawblogspot.com/

ON VACATING AN ACKNOWLEDGMENT OF PATERNITY

Matter of Joshua AA. v Jessica BB. 2015 NY Slip Op 07718 Decided on October 22, 2015 Appellate Division, Third Department:

"In June 2013, two days after the birth of respondent's child, petitioner and respondent executed an acknowledgment of paternity naming petitioner as the child's father. In January 2014, both parties filed separate petitions requesting custody of the child. However, in March 2014, petitioner commenced the instant proceeding to vacate the acknowledgment of paternity. After the issue of equitable estoppel was raised in a hearing before a Support Magistrate, the matter was referred to Family Court (see Family Ct Act § 439 [b]). Without holding a hearing, Family Court sua sponte dismissed the petition on the basis that the pleadings alone demonstrated that petitioner was equitably estopped from denying paternity. Petitioner now appeals.

"Once 60 days have elapsed following the execution of an acknowledgment of paternity, the mother or acknowledged father may challenge that document in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment" (Matter of Wimberly v Diabo, 42 A.D.3d 599, 599 [2007] [internal quotation marks omitted]; see Family Ct Act § 516-a [b] [iv]; Matter of Jeannette GG. v Lamont HH., 77 A.D.3d 1076, 1077 [2010]). To establish material mistake of fact, a party must demonstrate that such mistake "was truly material — i.e., substantial and fundamental to the nature of the [acknowledgment] — so as to entitle a party to void that document" (Matter of Wimberly v Diabo, 42 AD3d at 600). To establish fraud, a petitioner must show that he or she justifiably relied on the respondent's fraudulent statements or representations at the time the acknowledgment of paternity was signed (see Matter of Demetrius H. v Mikhaila C.M., 35 A.D.3d 1215, 1216 [2006]).

Here, in his petition to vacate the acknowledgment of paternity, petitioner alleged that his signature was procured either by material mistake of fact or fraud based upon respondent's history of infidelity. However, the petition also explained that petitioner put his name on the birth certificate of the child "despite all parties acknowledging that it was [another man's] child." Because petitioner's claim that he knew that he was not the father of the child negates a finding of fraud or material mistake of fact, as such findings are necessarily predicated on a lack of knowledge (see Matter of Felton R. v Gloria P., 63 A.D.3d 515, 515 [2009]), petitioner failed to plead sufficient facts constituting fraud or material mistake of fact (see Matter of Wimberly v Diabo, 42 AD3d at 601). Therefore, Family Court properly sua sponte dismissed petitioner's petition because, even "[a]ssuming the truth of the allegations in the petition, and according the petitioner the benefit of every favorable inference, the facts alleged do not fit into any of the grounds for vacatur of an acknowledgment of paternity" (Matter of Ronnyeh R. v Gwendolyn M., 99 A.D.3d 717, 717 [2012] [internal citation omitted]; see Matter of Panzer v Wood, 100 A.D.3d 1119, 1119-1120 [2012], lv dismissed 20 N.Y.3d 1001 [2013]; compare Matter of Siearra L. [Deborah L.], 130 A.D.3d 1184, 1186 [2015])."

NOTE: Even if a party meets his burden of establishing fraud, duress, or material mistake of fact, the Family Court is then required to conduct a hearing regarding the best interests of the child before ordering a GMT - a genetic marker test. See WESTCHESTER DSS v. ROBERT WR, 25 AD 3d 62 - NY: Appellate Div., 2nd Dept. 2005:

"The doctrine of equitable estoppel may be invoked to preclude a father, such as the respondent herein, from denying paternity to avoid support obligations where the invocation of the doctrine is in the best interests of the child (see Matter of Charles v Charles, 296 AD2d 547, 549 [2002]; Ocasio v Ocasio, 276 AD2d 680 [2000]; Brian B. v Dionne B., 267 AD2d 188 [1999]). Here, there was evidence before the Family Court that the child, nearly five years of age at the time of the subject challenge, recognized the respondent as her father and that the child enjoyed a relationship with him and members of his family."

<Next>>

DIVORCE ACTIONS - SETTLEMENT

This link is to an article from the American Bar Association's GP SOLO and is entitled:

"Preparing a Client for Settlement"

See http://www.americanbar.org/publications/gp_solo/2015/july-august/family_law_preparing_client_settlement.html

NEW YORK FAMILY LAW - FAMILY DISPUTES AND VISITATION

Yesterday, I reported on a case regarding what payor spouse may allege regarding spousal maintenance when recipient spouse moves in with parents.

Sometimes, a spouse returning to live with parents after divorce will raise issues. One perhaps extreme example is Matter of Matter of Christina KK. v Kathleen LL. 2014 NY Slip Op 04989 Decided on July 3, 2014 Appellate Division, Third Department which can be found at this link:

http://law.justia.com/cases/new-york/appellate-division-third-department/2014/516619.html

NEW YORK DIVORCE - CUSTODY & RELOCATION

A recent consultation and a recent email brought this case to my attention -  Matter of Kevin McK. v Elizabeth A.E. , 2013 NY Slip Op 06328, Decided on October 1, 2013, Appellate Division, First Department.

In this case, the Family Court, which denied a parent's application to relocate, was reversed by the Appellate Division. What I find most interesting about the case is the following:

1. Around the fall of 2008, the application to relocate was made in Family Court.

2.  Trial on the issues of custody and relocation commenced around a year later 2009, and was conducted on 13 days over the course of 2½ years.

3. The Family Court issued it's decision in April 2012.

4. The Appellate Division reversed in October 2013 - but the matter was remanded for further proceedings at which provision shall be made regarding liberal visitation and an allocation of travel costs.

Over 5 years and perhaps more until the parent can relocate....when I was consulted on this issue the need was immediate due to lack of income. So do was the application in Matter of Kevin McK. v Elizabeth A.E.

NEW YORK DIVORCE - MAINTAINING THE MARITAL RESIDENCE

This article was passed along to me. Of course, there are so many other issues to consider in whether or not to remain in the marital home, especially in these days of home values versus debt carrying costs, etc., as well as the child custody issue.

For myself, the best message one can take from this story is that many times a client will say "my friend was able to get this" or "I was told this would happen", etc. The fact is, in my view, each divorce is different, there is no cookie cutter approach and one person's experience does not mean that will be another person's experience.

Here is the article:

FORBES - Should You Move Out Of The Marital Home? Learn From Divorce Attorneys, Not The Tabloids

NEW YORK DIVORCE - PROPOSED CHANGES TO MAINTENANCE

There has been a lot of "buzz" about a new bill introduced to revise New York's rules regarding maintenance (alimony) and here's a discussion of it from the Wall Street Journal:

WSJ - Legislator Seeks to Fix New York State's Divorce Laws - Bill Would Overhaul Alimony Law, Set New Awards Formulas

CHILD CUSTODY & SUPPORT

I recently read of the decision in Rubin v Della Salla. 2013 NY Slip Op 02681, decided on April 18, 2013, Appellate Division, First Department which is described in part in the following article from Thomson Reuters:

Millionaire parent doesn't have to pay child support: appeals court

In this case, a father who has custody of his child the majority of the year was not obligated to make support payments to the child's mother, despite the vast disparity in their incomes: the father was a millionaire and the mother was unemployed.

The interesting part of the case for me was how the court determined who had primary physical custody - based on number of overnights:

"Courts have uniformly followed Bast, finding that where parents have unequal residential time with a child, the party with the greater amount of time is the custodial parent for CSSA purposes (see Smith v Smith, 97 AD3d 923 [3d Dept 2012]; Matter of VanBuren v Burnett, 58 AD3d 900 [3d Dept 2009]; Rossiter v Rossiter, 56 AD3d 1011 [3d Dept 2008]; Jennifer H.S. v Damien P.C., 50 AD3d 588 [1st Dept 2008], lv denied 12 NY3d 710 [2009]; Matter of Ambrose v Felice, 45 AD3d 581 [2d Dept 2007]; Matter of Minter-Litchmore v Litchmore, 24 AD3d 932 [3d Dept 2005]; Gainey v Gainey, 303 AD2d 628 [2d Dept 2003]; Sluck v Sluck, 266 AD2d 764 [3d Dept 1999]; Borowicz v Mancini, 256 AD2d 713 [3d Dept 1998]).

Here, given the schedule set by the court's custody decision, there is no question that the father has physical custody of the child for a majority of the time and should be considered the custodial parent for child support purposes. Based on the custody order, for the July 2012 to June 2013 time period, the child will spend 206 overnights with the father compared to 159 with the mother. Thus, the child will be with the father for a majority of the time (56%), and with the [*6]mother a minority of the time (44%). The extra 47 days the child spends with the father translates into nearly 30% more than the mother's time. Put another way, the child is with the father approximately 130% of the time he is with the mother. The great disparity in overnights here — 56% to 44% — stands in marked contrast to the cases cited by the mother where the parents have equal, or essentially equal, custodial time (see e.g. Barr v Cannata, 57 AD3d 813 [2d Dept 2008]; Carlino v Carlino, 277 AD2d 897 [4th Dept 2000]; Baraby v Baraby, 250 AD2d at 201).

The court below ignored its own custody schedule when it stated that the parents here share "very nearly equal" physical custody of the child. In an attempt to equalize the custodial time, the court focused on how much "waking, non-school time" the child spends with each parent. In other words, the court suggested that a custodial parent could be identified by calculating the number of waking hours he or she spends with the child. The mother makes a similar argument on appeal, contending that she should be considered the custodial parent because she "sees" the child on a majority of days during the year. For example, she counts a Thursday overnight as two days simply because she saw the child after school on Thursday and again on Friday morning.

This approach was soundly rejected in Somerville v Somerville (5 AD3d 878 [3d Dept 2004]). In that case, the child spent the majority of custodial time each week with his mother, and the father was ordered to pay child support. The father appealed, claiming that he should be considered the custodial parent because he had physical custody of the child during most of her "waking hours." The father argued that more weight should be given to daytime than to nighttime hours because a child needs less parental care during the time the child is sleeping. The court denied the father's objections to the child support order, finding his argument "patently absurd and . . . entitled to no serious consideration" (5 AD3d at 880; see also Joleene D.R. v Robert J.W., 15 Misc 3d 1148A, 2007 NY Slip Op 51201[U] (Fam Ct Oswego Cty 2007] [rejecting claim that the court should give less weight to sleeping time]). We reach the same result here and reject the counting of waking hours as a method of determining who is the custodial parent. Although the Court in Bast did not elaborate on what constitutes a "majority of time," we believe that the number of overnights, not the number of waking hours, is the most practical and workable approach. In Smith v Smith (97 AD3d 923), a case directly on point, the Third Department endorsed the use of overnights. In that case, during the school year, the children were with their father 18 out of every 28 nights, and with their mother the remaining 10 nights. For the summer, school recesses and holidays, the parents shared equal parenting time. Despite the fact that the father had the children for the majority of time, the trial court nevertheless designated him the noncustodial parent by virtue of his greater income, and directed him to pay child support. The Third Department reversed that determination, finding that the trial court's order violated Bast v Rossoff. The court held that "[i]nasmuch as shared' custody is not synonymous with equal' custody and [the father] clearly has physical custody for a majority of the time during the greater part of the year, Supreme Court incorrectly determined that [the father] was the noncustodial parent for child support purposes . . . and erred in directing [the father] to pay child support to [the mother]" (97 AD3d at 924). [*7]

There are sound policy reasons why calculating the waking hours spent with each parent should not be the method used to determine who is the custodial parent. Allowing a parent to receive child support based on the number of daytime hours spent with the child bears no logical relation to the purpose behind child support awards, i.e., to assist a custodial parent in providing the child with shelter, food and clothing (see e.g. Higgins v Higgins, 50 AD3d 852 [2d Dept 2008] [food, clothing and shelter costs are inherent to the basic child support obligation]). Furthermore, because a child's activities are subject to constant change, the number of hours spent with each parent becomes a moving target. Outside of school hours, a child may participate in after-school activities, spend time with a child care giver, be enrolled in tutoring, or attend summer camp. During those times, the child may not be with either parent. The child's activities may vary day to day and will change as the child ages, unnecessarily creating the need to recalculate the parties' parenting time and possibly modify the custodial parent designation. Moreover, the use of this type of counting approach could also lead parents to keep their children out of camp or other activities simply to manipulate their time spent with the child so as to ensure that they are designated the "custodial parent" (see Bast v Rossoff, 91 NY2d at 732 [rejecting proportional offset formula because it has undesirable potential of encouraging parents to keep a stopwatch on visitation]). An hour-by-hour analysis of custodial time is just not workable and would run afoul of the "greater uniformity [and] predictability" the CSSA was designed to promote (Cassano, 85 NY2d at 652).

The dissent misconstrues the reality of the motion court's custody schedule, stating that the child does not spend significantly more time with the father. In fact, as noted above, the father has 56% of time with the child compared to 44% for the mother — an almost 30% difference. Thus, the child spends significantly more time with the father, making the father the custodial parent for child support purposes. The dissent's reliance upon Redder v Redder (17 AD3d 10 [3d Dept 2005]) is misplaced. In Redder, the parties had substantially the same amount of custodial time with the children, which is not the case here.^[FN2]

In justifying its departure from the CSSA, the motion court placed undue emphasis on an isolated phrase in Bast v Rossoff. As noted above, Bast explained that "[i]n most instances," the custodial parent can be determined by identifying which parent has physical custody for a majority of time (91 NY2d at 728). The motion court interpreted the phrase "[i]n most instances" as allowing it, in a proper case, to designate a parent who had the minority of time with the child as the custodial parent for child support purposes. There is no support in the case law for this reading of Bast. The more reasonable interpretation is that the Court recognized that [*8]there may be situations where it cannot be determined who has the child the majority of time, such as equal custody cases, or where the child is not residing with either parent for a majority of time because the child is away at college or at a boarding school.

In finding that the father could be considered the noncustodial parent, the motion court improperly focused on the parties' financial circumstances rather than their custodial status. In doing so, the court endorsed an approach where the determination of the custodial parent is based not on whom the child spends the majority of the time with, but instead on which parent has the lesser monetary means. No matter how well-intentioned the court may have been, neither the CSSA, nor Bast v Rossoff, allows for economic disparity to govern the determination of who is the custodial parent where the custodial time is not equal.^[FN3] "

NEW YORK DIVORCE - NEW MAINTENANCE RULES?

An excellent discussion on possible changes in New York divorce law regarding spousal mainteance(I have read the Law Revision Commission's report and this is a very good summary):

Daniel Clement - New York Maintenance Laws To Change: How Will Post Divorce Maintenance Be Determined?

HOW TO HANDLE A DIVORCE

Earlier this month, I received an email from matrimonial attorney Daniel E. Clement with an interesting article and here is a link:

New York Divorce Report - May 2, 2013 - 10 Things NOT To Do in a Divorce

From my experience, I would also add this:

1. If you have children who are living with you and you are engaged in a new relationship, do not have your new partner move in with you during the divorce process - and even after the divorce, consider the children and the effect on them.

2. Divorce, and for that matter any litigation, can be stressful. Obtain mental health support from a professional.

NEW YORK MATRIMONIAL - SAME SEX COUPLES

Due to recent court decisions, it is now suggested that same-sex couples should consult with their tax attorney to see if they may qualify to file a “Protective Claim for Refund.”

More information can be found at this link:

JD SUPRA: Same-sex married couples: Consider filing a Protective Claim for Tax Refund NOW

TODAY - AN HONOREE

DEALING WITH PROBLEM ADULTS - LEGAL RIGHTS

Now what if the "problem adult" is your child, an adult child? The first thing to be aware of is obtaining an Order of Protection. This is from the NYS Unified Court System website:

" Domestic Violence (Orders of Protection)

Q. Can I get an order of protection against a person I'm not married to in Family Court?

A. Yes. You don't need to be married to the person to get an order of protection against them in Family Court.


Q. Who can I get an order of protection against in Family Court?
A. You can get an order of protection against any of the following individuals in Family Court:

A current or former spouse

Someone you have a child in common with

Another family member that you are related to by blood or marriage

Someone that you are or have been in an "intimate relationship" with. (An intimate relationship does not necessarily mean a sexual relationship, but is more than just a casual or social relationship--the court will decide whether the relationship is intimate based upon the facts about the relationship and how long it has lasted).


Q. Can I get an order of protection against a person I'm not married to in Criminal Court?
A. Yes. You can get an order of protection in Criminal Court against someone you are not married to and have no relationship with at all. In Criminal Court, you could file a complaint against the person you say abused you. Typically that person would be arrested, and the District Attorney would bring a criminal case against that person. You would be the "complaining witness."


Q. Must I choose whether to ask for an order of protection in Family Court or Criminal Court?
A. No. You can ask for an order of protection against your abuser in both courts at the same time.


Q. I'm being stalked. Can I get an order of protection?
A. Stalking is a form of Harassment. That is one of the crimes that allows you to get an order of protection. Other crimes include Assault, Attempted Assault, Menacing, Reckless Endangerment, and Disorderly Conduct.


Q. What is a petitioner and what is a respondent?
A. In Family Court, a petitioner is a person asking for an order of protection. (In Family Court, cases filed for an order of protection are called family offense cases.) A respondent is a person a petitioner wants an order of protection against. In a Criminal Court, that person is called a defendant.


Q. Can I have a lawyer?
A. In a Family Court, the petitioner and the respondent each have the right to hire a lawyer. If a petitioner or a respondent can't afford to hire a lawyer, they can ask the court to appoint a lawyer free of charge. In a Criminal Court, the district attorney's office or other prosecutor represents "the people." They help the person who wants an order of protection. The defendant can hire a lawyer or have the court appoint one free of charge if he or she can't afford it.


Q. How do I start a case?
A. Call the police if you feel you are in danger. You can go to your county's Family Court to file a family offense petition, go to the district attorney's office (or other local prosecutor's office), or go to the local Criminal Court. You can choose to do all of these things if you want.


Q. What is an Affidavit of Service in Family Court?
A. An "Affidavit of Service" is a paper that must be filed with the court showing that the respondent has been told about the case. Court staff will help you with important instructions about this document.


Q. What is a Court Attorney in Family Court?
A. A "Court Attorney" is a lawyer who works for a judge.


Q. What kinds of things can be put in my order of protection?
A. Among other things, the judge can order the respondent or defendant:

• not to assault, menace, or harass you or commit crimes of reckless endangerment or disorderly conduct towards you.

• to be removed by the police from where you are living.

• to stay away from you, your residence, your job, and other places you may want.

• not to telephone or e-mail you or write you letters.

The judge can also protect your children in the order of protection. For example, you may ask that any visitation with the children be supervised. In Family Court, the judge can order the respondent to pay temporary support and to give you legal custody of any children you may have with the respondent.


Q. What happens if I miss my court date?
A. If you are a petitioner in Family Court, your case will probably be thrown out and any temporary order of protection you had will be gone on that day. If you are a respondent in Family Court, the case can be done without you there (provided the petitioner gave you notice of the case) and an order of protection can be issued. As a respondent or defendant, a warrant may be issued for your arrest in either a Family Court or a Criminal Court if you don't show up.


Q. What happens if an order of protection is violated?
A. If a respondent or defendant violates (disrespects) an order of protection, the person with the order of protection can call the police, who can arrest the respondent or defendant. The person with the order of protection can file a "violation petition" in Family Court, talk with the district attorney's office (or other local prosecutor's office) or can go to the local Criminal Court. The person with the order of protection can choose to do all three of these things. Upon proof of the violation, the judge can make changes in the order of protection and put the respondent or defendant on probation. The judge can set a jail sentence.


Q. I moved to New York from the state that gave me an order of protection. Is the order of protection good in New York?
A. An order of protection from another state is still good in New York. You can get help on how to register your order of protection in New York from your local Family Court, Criminal Court, or police station."