CHILD CUSTODY - DENYING PARENTAL ACCESS NOT ALWAYS PARENTAL ALIENATION

MATTER OF BURKE v. Squires, 2022 NY Slip Op 861 - NY: Appellate Div., 2nd Dept. 2022"

"The parties are the unmarried parents of one child, born in 2011. Prior custody proceedings resulted in a so-ordered stipulation of settlement dated June 27, 2016 (hereinafter the stipulation), awarding the parties joint legal custody, with primary physical custody to the mother and certain parental access to the father. The stipulation provided, inter alia, that, if any party consistently violated the stipulation by denying access to the child, that action would be deemed a change in circumstances and the injured party could petition the Family Court for a change of custody.

In January 2018, the father filed a petition to modify the stipulation so as to award him sole custody of the child, based upon the mother's alleged violations of the stipulation in failing to comply with his parental access. The mother thereafter filed a petition seeking to modify the stipulation so as to award her sole custody of the child and to eliminate the father's weekday parental access. A hearing was held on both petitions. In an order dated October 15, 2020, the Family Court, inter alia, in effect, denied the father's petition. The father appeals.

Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child (see Baraz v Polyakov, 198 AD3d 853, 854; Sukul v Sukul, 196 AD3d 661, 662). "The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances" (Matter of Cabano v Petrella, 169 AD3d 901, 902; see Eschbach v Eschbach, 56 NY2d 167, 171; Baraz v Polyakov, 198 AD3d at 854). "Inasmuch as custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court's findings in this regard" (R.K. v R.G., 169 AD3d 892, 894), and "[t]he court's findings will not be disturbed unless they lack a sound and substantial basis in the record" (id. at 894; see Eschbach v Eschbach, 56 NY2d at 173-174; Sukul v Sukul, 196 AD3d at 662).

Here, the mother's admitted violations of the stipulation of settlement in failing to comply with the provisions concerning the father's parental access established a sufficient change in circumstances to permit the father to seek sole custody under the terms of the stipulation (see Matter of Epstein v Soler-Epstein, 188 AD3d 1052, 1053). However, the father failed to establish that such a change of custody would be in the best interests of the child.

"Parental alienation of a child from the other parent, including willful interference with his or her [parental access] rights, is `an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent'" (E.V. v R.V., 165 AD3d 736, 737, quoting Entwistle v Entwistle, 61 AD2d 380, 384-385; see Pandis v Lapas, 176 AD3d 837, 839). Here, however, while the mother failed to comply with the father's parental access on multiple occasions, many of the other violations alleged by the father appear to have been caused by the parties' confusion over the parental access schedule, which was remedied when the parties agreed to a specific schedule of alternate weekends during the proceedings. The child wished to continue her parental access time with the father, undermining the father's claim of alienation. Moreover, the father's own actions, including his failure to exercise four weeks of extra parental access in the summer of 2019, which he was awarded in settlement of his separate violation petition, contributed to the father's failure to have more parental access with the child and any resulting alienation.

Furthermore, the child had always lived primarily with the mother, and wished to continue to do so, and the father had been uninvolved with the child's medical appointments and schooling. While a child's expressed preference is not determinative, it is some indication of what is in the child's best interests (see Matter of Masiello v Milano, 180 AD3d 683, 685). Maintenance of status quo, while also not decisive, is a positive value entitled to great weight (see Matter of Newton v McFarlane, 174 AD3d 67, 82). Finally, although the parties exhibited difficulty in effectively communicating concerning the child, the Family Court's determination that the parties' relationship was not so acrimonious so as to warrant a change of custody (cf. Paruchuri v Akil, 156 AD3d 712, 713), and that a change of custody would further inflame the relationship between the parents and not be in the child's best interests, was supported by a sound and substantial basis in the record.

The contention of the attorney for the child that the matter should be remitted to the Family Court for a reopened hearing on the mother's petition for sole custody of the child, and to determine whether the father should be awarded any parental access at all in light of new developments, is not properly before this Court, as neither the mother nor the child cross-appealed from that portion of the order which denied the mother's petition."

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. "

CHILD SUPPORT AND INCARCERATION

There are limits to the court's power.

Matter of Augliera v Araujo, 2020 NY Slip Op 03510, Decided on June 24, 2020 ,Appellate Division, Second Department:

"We agree with the Family Court's determination in an order of disposition dated May 31, 2019 (hereinafter the May 2019 order), after a hearing on May 8, 2019, that the father willfully violated an order of child support dated December 21, 2015. At the hearing, the mother demonstrated that the father willfully violated his support obligations set forth in the child support order (see Family Ct Act § 454[3][a]; Matter of Martinez v Martinez, 44 AD3d 945, 946). In opposition, the father failed to show an inability to pay the support owed (see Matter of Martinez v Martinez, 44 AD3d at 946).

We disagree, however, with the Family Court's imposition of a sentence of incarceration upon its finding of willfulness since the parties agreed at the hearing that the father had paid the full amount due and owing. Although the court is empowered to impose a sentence of incarceration of up to six months for willful failure to comply with a support order (see Family Ct Act § 454[3][a]; Matter of Cox v Cox, 133 AD2d 828), such incarceration may only continue until the offender complies with the support order (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d 568, 568-569). Here, the court sentenced the father to a period of incarceration of 40 days, to be suspended under certain conditions, after the parties already had agreed that the father had paid all that was due and owing at that time. Under such circumstances, no period of incarceration should have been imposed (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d at 568-569). Accordingly, since the court imposed a sentence of incarceration in contravention of Judiciary Law § 774(1), that provision of the May 2019 order must be deleted."

CHILD SUPPORT - PROVING PARENT DID NOT WILLFULLY VIOLATE ORDER

Matter of Pacheco v Pacheco, 2018 NY Slip Op 05048, Decided on July 5, 2018, Appellate Division, Second Department:

"The parties were divorced in 2008 and are the parents of one child, born in 2005. By order dated November 14, 2014, the father's previous child support obligation was increased from the sum of $1,570 per month to the sum of $2,430 per month upon the consent of the parties. On April 21, 2015, the mother filed a petition alleging that the father violated the order dated November 14, 2014, and sought payment of retroactive child support arrears and an award of counsel fees. On May 17, 2016, the Support Magistrate set retroactive arrears and scheduled a hearing on the issues of willfulness and counsel fees. In an order dated April 4, 2017, the Support Magistrate found, after the hearing, that the father did not willfully violate the order dated November 14, 2014, and thereupon denied the mother's motion for an award of counsel fees. In an order dated June 7, 2017, the Family Court denied the mother's objections to the order dated April 4, 2017. The mother appeals.

The Family Court may allow the payment of counsel fees to the attorney representing the petitioner at any stage of a proceeding to modify or enforce an order (see Family Ct Act § 438[a]; Matter of Heintzman v Heintzman, 157 AD3d 682, 692; Matter of Nieves-Ford v Gordon, 47 AD3d 936, 937). Absent a finding that nonpayment was willful, an award of counsel fees is a matter left to the sound discretion of the Family Court (see Matter of Westergaard v Westergaard, 106 AD3d 926; Matter of Nieves-Ford v Gordon, 47 AD3d at 937). As with an award of counsel fees made pursuant to Domestic Relations Law § 237(b), the court must base its decision primarily upon both parties' ability to pay, the nature and extent of the services required to deal with the support dispute, and the reasonableness of their performance under the circumstances (see Matter of Heintzman v Heintzman, 157 AD3d at 693; Matter of Nieves-Ford v Gordon, 47 AD3d at 937; Matter of Barnes [*2]v Barnes, 54 AD2d 963). Great deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to assess the credibility of the witnesses (see Matter of Julianska v Majewski, 78 AD3d 1182, 1183; Matter of Kennedy v Ventimiglia, 73 AD3d 1066, 1067; Matter of Musarra v Musarra, 28 AD3d 668, 669).

Here, the father demonstrated that he did not willfully violate the order dated November 14, 2014. The father's testimony at the hearing and other evidence submitted by the father showed that there had been a decline in his income as well as an inability to pay for financial obligations such as the mortgage on his residence and outstanding bills. The Support Magistrate's findings regarding the father's income were based on credibility determinations and were supported by the record (see Matter of Julianska v Majewski, 78 AD3d at 1183). Therefore, the Support Magistrate providently exercised her discretion in declining to award counsel fees to the mother (see Matter of Heintzman v Heintzman, 157 AD3d at 692; O'Brien v O'Brien, 115 AD3d 720, 724; Matter of Nieves-Ford v Gordon, 47 AD3d at 937; cf. Matter of Wiener v Salamy, 142 AD3d 1179)."

FAILURE TO PAY CHILD SUPPORT - INCARCERATION

MATTER OF STRADFORD v. Blake, 2016 NY Slip Op 5651 - NY: Appellate Div., 2nd Dept. 2016:

The mother commenced this proceeding against the father, alleging that he was in willful violation of a child support order dated June 30, 2006. Following a hearing, the Support Magistrate found that the father was in willful violation of the order of support and issued an order of disposition recommending that the court consider a period of incarceration. The Family Court, in effect, confirmed the Support Magistrate's findings of fact, granted the mother's petition, and issued an order of commitment, committing the father to the custody of the Nassau County Correctional Facility for a period of six months unless he paid the purge amount of $112,342.80. The father appeals.

Although the appeal from so much of the order of commitment as directed that the father be incarcerated must be dismissed as academic, the appeal from so much of the order of commitment as confirmed the finding and determination that the father was in willful violation of the order of support is not academic in light of the enduring consequences which could flow from the finding that he violated the order of support (see Matter of Dezil v Garlick, 136 AD3d 904; Matter of Rodriguez v Suarez, 93 AD3d 730; Matter of Westchester County Commr. of Social Servs. v Perez, 71 AD3d 906, 907).

Under Family Court Act § 454(3)(a), which relates to "willful" failures to obey support orders, a "`failure to pay support as ordered itself constitutes prima facie evidence of a willful violation'" (Matter of Dezil v Garlick, 136 AD3d at 905, quoting Matter of Powers v Powers, 86 NY2d 63, 69; see Family Ct Act § 454[3][a]). This means that "`proof that respondent has failed to pay support as ordered alone establishes petitioner's direct case of willful violation, shifting to respondent the burden of going forward'" (Matter of Dezil v Garlick, 136 AD3d at 905, quoting Matter of Powers v Powers, 86 NY2d at 69).

Here, the mother presented proof that the father failed to pay child support as ordered (see Matter of Saintime v Saint Surin, 40 AD3d 1103). The burden of going forward then shifted to the father to offer competent, credible evidence of his inability to make the required payments (see Matter of Powers v Powers, 86 NY2d at 69; Matter of Dezil v Garlick, 136 AD3d at 905). The father failed to sustain his burden. The Support Magistrate found the father to be less than credible. Even assuming the truth of the father's contention that he had been unemployed in his chosen field since he lost his license to trade stocks and that he could not perform physical labor due to his heart condition, he failed to present any evidence that he had made a reasonable and diligent effort to secure employment. Thus, the father failed to meet his burden of presenting competent, credible evidence that he was unable to make payments as directed (see Matter of Dezil v Garlick, 136 AD3d at 905; Matter of Nassau County Dept. of Social Servs. v Henry, 136 AD3d 639; Matter of Girasek-Brick v Girasek, 127 AD3d 861; cf. Matter of Westchester County Commr. of Social Servs. v Perez, 71 AD3d 906). Moreover, the father did not regularly pay child support between 2001, when the first order directing that he pay child support was entered, and 2014, when the hearing was held on the mother's petition. The father failed to provide proof that he applied for and was denied Social Security disability benefits even though directed to do so by the Support Magistrate. In addition, the Support Magistrate properly found that the father lacked credibility in his testimony that he had no income or assets from other sources.

Accordingly, the Family Court properly, in effect, confirmed the determination of the Support Magistrate that the father willfully violated the order of support (see Matter of Dezil v Garlick, 136 AD3d at 905).

CRIMINAL LAW - NASSAU COUNTY

As a follow up to yesterday's blog, here is an interesting post from attorney Don A. Murray, Esq.:

"Will a Desk Appearance Ticket Case Give Me a Criminal Record?

It is important to realize that getting a Desk Appearance Ticket simply means that you have been arrested for something and therefore does not result in a criminal record. There are essentially only two ways to get a criminal record: Either you are found guilty after a trial or you yourself stand up on the record in court and plead guilty.

If neither of those things has happened, then you don't have a criminal record.

What most people really mean by asking this question is whether the ultimate OUTCOME of the case will give them a criminal record. And the answer to that question will depend on what the outcome of the case is.

If it is your goal to have your day in court and have the case go to a trial, then the outcome will obviously depend on the verdict after trial. If you are found guilty of a crime you will have a criminal record. If you are not found guilty of a crime, you will not have a criminal record.

Many people who are given desk appearance tickets, however, have some sense that they might like to try to resolve the case without having to go to trial.

Many cases that begin in the Desk Appearance Ticket process in New York end up negotiated in such a way that they are either dismissed and sealed as a result of an Adjournment in Contemplation of Dismissal, or are negotiated to a plea to a non-criminal offense and sealed.

In neither of the above two situations are people left with criminal records. In the case of the ACD resolution, the case is dismissed and sealed. Therefore, there is no criminal record. The criminal justice system, in fact, can't do anything more favorable for the accused, once the case is dismissed and sealed, than it could do for someone who is actually found not guilty at a trial. The same dismissal and sealing that happens after a not guilty verdict happens when the ACD dismissal kicks in.

In the case of a negotiated plea to a "violation offense", the person is left without a criminal record because a "violation" is by definition in New York State, NOT a crime. Pleading guilty to a violation is much like pleading guilty, in New York, to speeding. It does not give you a criminal record.

People are also frequently concerned about the related issue of the level of information that they can be required to disclose, or that can be recovered in future background checks for jobs.

And this is where things can get tricky.

THE CASE OF THE ACD

In the case in which a person receives an ACD, and the case is actually dismissed, the criminal justice system considers the case eliminated. As far as the New York criminal justice system is concerned, the person's record is as pure and clean as the day he was born. A "rap sheet" generated in Albany after the ACD dismissal date will NOT include the case. The "rap sheet" will make the person appear to have no criminal history whatsoever.

Therefore, if such a person is subjected to a "normal" background check where Albany is contacted for a rap sheet, the person or organization conducting this normal background check will not see the case and the person will appear utterly clean.

But this does not mean that the information about the case is erased or that the information is not kept somewhere in some government database. There will be certain situations when the Government, for example, will be able to access this information.

For example, if a person wants to obtain a gun license in New York City, the police department will conduct a background check on the person. For this purpose, the police are authorized to penetrate this "sealed" database and they will have access to the information about any dismissed and sealed case.

Furthermore, there may be other situations in which the Government (Federal and State) might be able to access the information. Applying for top secret security clearance might be one such situation.

People need to be conscious that in this day of electronically stored information, any information, once stored, is likely to be recoverable by someone with sufficient motivation, time, and resources.

The entire issue of what is sealed can also be rendered moot if you are under some obligation to reveal the information in order to get some sort of license or clearance. There are increasing numbers of situations in which people are required to answer the broad question "Have you ever been arrested?"

If you have been given a Desk Appearance Ticket, then the truthful answer to this question is "Yes" regardless of the outcome of the case. The fact that the truth may be difficult for most people to verify doesn't make the truth any different. Some lawyers have suggested that the purpose of the ACD is to restore the person his situation "prior to arrest" and therefore this frees a person to claim that he has never been arrested. Personally, I disagree with this position.

As powerful as the Legislature is, the Legislature cannot legislate fiction into fact. If the Legislature passed a law that 2 + 2 = 5, it would be the poor math student indeed who attempted to rely on "the law".

A person who relies on this lawyer argument that he has "never been arrested" because the ACD "made it go away" may have the advantage of being able to explain why he lied. But it makes it no less a lie. The prospective employer or person conducting the background check may "understand" intellectually this argument, but still may nevertheless feel deceived and treat the candidate accordingly. Therefore, I advise people to err on the side of telling the truth to such a question when they have had a case dismissed by way of an ACD.

The good news is that in most situations, people are not authorized to ask the question about having ever been arrested. More typically the question will involve prior convictions.

VIOLATION CONVICTIONS

In the case of the person who pleads guilty to a "violation" offense as part of some settlement negotiated by a lawyer, the person does not have a criminal record, but may face additional scrutiny and exposure of the existence of this non-criminal offense.

By operation of law in New York, the vast majority of "violation" offenses are sealed. This might tempt you to believe that they are therefore as difficult to expose as cases sealed by way of ACD. This is not the case.

The automatic sealing provisions that apply to most violations are different from those that apply to the ACD. The "sealing" that occurs in the ACD situation is more comprehensive and applies to the rap sheet and the court records available on a county by county basis.

The "sealing" that occurs in the context of violations is not quite as comprehensive. Violation convictions that are sealed are not supposed to appear on rap sheets, just the way ACD cases are excluded. But for the purposes of local court records kept in the courthouses around the state, violation records are not sealed and available. Locating these records may be difficult and inconvenient since it would require a search to be made locally and individually by county. Most background checking organizations simply request information from the rap sheet from Albany.

In the end, the most important thing to remember whether a person resolves a case with an ACD or by way of a negotiated plea to a violation offense, the person DOES NOT HAVE A CRIMINAL RECORD.

While the level of access that different people may have, legally or otherwise, may vary, the lack of a criminal record will remain a fundamental truth."