AFTER DIVORCE, CHILD WANTS TO CHANGE LAST NAME

MATTER OF DZ (" G"), 2021 NY Slip Op 21282 - Suff Co. Supreme Court 2021:

"JAMES HUDSON, J.

The Petitioner and Respondent have two different last names that both begin with the letter Z. To preserve the privacy of the parties, they will be referred to as Ms. DZ and Mr. SZ. Their daughter will be referred to as "G."^[1]

The matter at hand is a petition brought by Ms. DZ to change the surname of "G" to Ms. DZ's current married name (Civil Rights Law Sec.60 et. seq.). Additionally, the Petition seeks to change "G's" middle name. The Petitioner Ms. DZ and the Respondent Mr. SZ were married in 2006 and divorced in 2008. Prior to their separation, however, the couple was blessed with a daughter "G" who is now 14½ years old. On her Birth Certificate the child was given the Respondent's surname. "G's" Father, Mr. SZ has opposed the application.

The differing averments of the Petitioner and Respondent could only be resolved in an evidentiary hearing (In re Kobra, 46 Misc 3d 54, 56, 2 N.Y.S.3d 313, 314 [App. Term. 2nd Dept. 2014]). On August 20th, 2021 the Parties appeared before the Court and gave testimony. Prior to hearing from Ms. DZ and Mr. SZ, however, the Court heard the testimony of "G".

The Court was concerned that asking "G" to speak in front of her Parents would place an inordinate emotional burden on her. It has long been established that in custody proceedings the trial Court possesses the authority to interview a child outside of the presence of their parents (Lincoln v. Lincoln, 24 NY2d 270, 247 N.E.2d 659, 661 [1969]). In the case In re Eberhardt, 83 AD3d 116, 920 N.Y.S.2d 216 (2nd Dept. 2011), this rule was expanded to include name change petitions.

"Pietas erga parentes"^[2] or in the modern tongue "reverence towards one's parents" is a timeless virtue despite it being described by the immortal Cicero in antiquity. The Court notes this because "G's" testimony (which has been sealed pursuant to a companion Order) revealed a young person who possesses this virtue in abundance. She loves her parents very much and is also highly intelligent. Her outstanding academic achievements are a credit to them. In a lengthy interview, she was able to clearly articulate her observations and feelings concerning the petition.

Ms. DZ testified in open Court after her daughter spoke in camera (Transcript p.60). She stated, inter alia, that she and her current husband Mr. JZ, have raised "G" from "when she was a toddler" and identifies as a member of his family (Transcript p.60). It was detailed that it's upsetting for "G" to have to explain her different last name on her passport. "G" uses her mother's current married name at home and wants to start High School with the same last name as her half siblings in the custodial household. Ms. DZ spoke of her husband's fatherly interaction with "G." By way of example, Mr. JZ has attended all of "G's" soccer matches, taught her to ride a bicycle and taken her fishing (Transcript p.64). Ms. DZ emphasized that her marriage with Mr. SZ only lasted six months. After the marriage ended, Mr. SZ had supervised visitation for a period of time which was exercised in an "inconsistent" fashion (Transcript p.66). "G's" first sleep over with her Father occurred when she was 10 (ten) years old and the child has expressed a reluctance since that time for visits with Mr. SZ. She also indicated that Mr. SZ never regularly paid child support and is now $8,500.00 in arrears. Ms. DZ also submitted documents for the Court's review (Petitioner's Exhibits 1, 2 and 3).

Petitioner's Exhibit 1 is a printout of a series of text messages between the Petitioner and Respondent. It demonstrates the acrimonious relationship between the former spouses. They read in pertinent part:

(The following dialogue took place after Ms. DZ communicated "G's" wish to have her surname changed):

Ms. DZ: "This is "G's" wish."

Mr. SZ: "So you want me to pay 1200/month Not see or hear from her and have her change her last name." (sic)

Ms. DZ: "Nothing to do with what I want. If you don't consent the paper work is being filed but it would be great to get your consent for "G."

Mr. SZ: "Take me off child support and I'll sign it. I guess you have your answer then."

Petitioner's Exhibit 2 is a document indicating that Mr. SZ is $8,500.00 in arrears for his child support payments.

Petitioner's Exhibit 3 was a printout of Mr. SZ's criminal record. It indicated that on August 31st, 2006 he had committed the Misdemeanor of Assault 3rd Degree and pled guilty to same on May 23rd, 2007. The Exhibit also indicated that on January 30th, 2007 he had committed the Misdemeanor of Reckless Endangerment in the 1st Degree, to which he also pled guilty onMay 23rd, 2007. There is also a more recent conviction (by plea of guilt) to the Misdemeanor of Reckless Driving. All of these offenses occurred in our sister State of Connecticut. Ms. DZ contends that there was a history of domestic violence between herself and Mr. SZ during their brief marriage.

Mr. SZ did not object to these documents being received into evidence.

Mr. SZ then offered his testimony before the Court. He also submitted documentary Exhibits consisting of papers attached to his written opposition to the Petition. They were considered, over Petitioner's objection as Respondent's evidence.

Mr. SZ strongly objected to "G's" last name being changed. He stated:

"I don't want to give up on my daughter. I don't want her to say, oh, Dad, where were you? But it's become so just difficult. I've been to Court, hired lawyers, seen therapists, drug counselors, police, jail. It's like when is it ever going to end? It's like the nightmare that doesn't go away. So, I don't want to leave "G" I don't want her not to know me. She doesn't refer to me as Dad. She calls me [by his first name]. And, I guess I put her in the situation, so I can't be that upset. But, her mother just makes it worse" (Transcript p.85-86).

Mr. SZ gave instances of his attempts to contact his daughter which were blocked by his ex-wife. This culminated (in 2020) in his bringing an action to hold Ms. DZ in contempt of Judge Budd's Order of Custody and Visitation dated May 31st, 2012. His documentary Exhibit, however, does not support his allegation of wrong doing on Ms. DZ's behalf. The submitted papers are silent on the topic of parental alienation. Instead, they demonstrate that Mr. SZ was subjected to supervised visitation, under the aegis of Dr. Vanessa Gomez, being Ordered by the Court (Transcript pp.8-11).

These documents included the following:

(1) The Judgment of Divorce granted in Connecticut on May 2nd, 2008 by Justice Mary Louise Black. The Judgment incorporated a Separation Agreement with provisions for custody and visitation;

(2) The Custody and Visitation Order from Suffolk County Family Court (Judge Marlene Budd) dated May 31st, 2012. The Court awarded custody to Ms. DZ but provided for alternate weekend visitation as well as certain other Holidays. This Order also provided, inter alia, that Ms. DZ had to consult with Mr. SZ for all significant (e.g. health, education) decisions and;

(3) motion papers dated May 13th, 2020 from Suffolk County Family Court reflecting an application by Mr. SZ to have Ms. DZ punished for contempt of the 2012 Custody and Visitation Order. This was resolved in supervised visitation for Mr. SZ being Ordered by the Court (Transcript pp.8-11).

Regarding the significance of Mr. SZ's criminal convictions brought to the Court's attention he stated: "Most of my criminal record there that you see in your paperwork is when she's called the police on me. And some of it's true, some of it's not true" (Transcript p.85 line 10). To this the Court responds "Habemus optimum testem, confitentem reum" (1 Phil. Ev. 397) (1). "We have the best evidence, a confessing defendant." We respectfully remind Mr. SZ that his confession to the criminal behavior listed above was made before a Judge, historically the most favored form of admission (see Sir Michael Foster, Discourse on High Treason, Article 3, Section 3, Clauses 1 and 2 [1762]). The Court was concerned when Mr. SZ volunteered that the incidents involved Ms. DZ. Far from being a mitigating factor, they weigh against the Respondent. Having sat in the Matrimonial Part, the Court is sadly aware of the circumstances which precipitate a failed marriage. Disagreement and discord are understandable. Domestic abuse, however, is not, nor is it tolerable.

As to the issue of Mr. SZ's child support arrears, he offered the following explanation:

"I've been paying my child support. I don't pay now because I'm so fed up with it and so angry. She doesn't let me talk to her; she doesn't let me see her. When she refers to me, she calls me. I'm not good enough for her, her mother, whatever it is. So, I'm-I'm liable to pay every month. My money is good enough to take, but I'm not good enough to let her let me see her. So, that's why I don't feel like paying" (Transcript p.87 line 9-19).

Mr. SZ said that Ms. DZ had improperly influenced "G" against him and that this Petition was the product of his ex-wife's manipulation of their child. Mr. SZ then stated that he had, in fact been paying his child support payments for years and that "there's always been money" in the bank account set up for that purpose (Transcript p.90 line 19). This prompted a question from the Court:

"The Court: So, are you in arrearages or not?"

Mr. SZ: "I'm in arrearage, yes, but that's only because she got me so aggravated that I don't feel like paying."

The Court: "Have you been able to pay?"

Mr. SZ: "Yeah, I've been able to pay." (Transcript pp.90-91).

Since the testimony of the Petitioner and the Respondent are at a variance, the Court must sift the differing averments and find the truth.

Determination of the credibility of witnesses is viewed as the province of the Trial Judge (Morales v. Inzerra, 98 AD3d 484, 949 N.Y.S.2d 433 [2nd Dept. 2012]; Tornheim v. Blue & White Food Prod. Corp., 88 AD3d 867, 931 N.Y.S.2d 340 [2nd Dept. 2011]). Based upon the estrangement between Petitioner and Respondent, the Court is cognizant of the bias that informs both of their sworn statements. Each testified as truthfully as they could, but it is understandable that they remember their interactions with advantages. The documentary proof submitted by both the Parties, however, serves to support the contentions of Ms. DZ more than Mr. SZ.

In deciding whether to grant a Name Change Petition the Court must make the following determination: "that the petition is true, and that there is no reasonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the interests of the infant will be substantially promoted by the change" (Civil Rights Law § 63).

In re Eberhardt, supra. offers great guidance to the Court: "As in any case involving the bests interests standard, whether a child's best interests will be substantially promoted by a proposed name change requires a court to consider the totality of the circumstances." (Id. at 221) citing Matter of John Phillip M.-P., 41 AD3d 720, 721, 839 N.Y.S.2d 502 [2nd Dept.2007]; Matter of David Robert T., 10 AD3d 453, 780 N.Y.S.2d 912 [2nd Dept.2004]; Matter of Cinquemani v. Guarino, 290 AD2d 554, 736 N.Y.S.2d 623 [2nd Dept.2002]; see generally Eschbach v. Eschbach, 56 NY2d 167, 171, 451 N.Y.S.2d 658, [1982]).

What does totality of the circumstances mean? The Eberhart Court counseled the lower Court as follows:

"Among the myriad of factors or circumstances that a court may consider in determining whether a proposed name change substantially promotes the child's best interests, there are several that warrant special mention:

(1) the extent to which a child identifies with and uses a particular surname;

(2) the child's expressed preference, if of sufficient age and maturity to articulate a basis for preferring a particular surname;

(3) whether the child's surname differs from the surname of the custodial parent;

(4) the effect of the proposed name change on the child's relationship with either parent;

(5) whether the child's surname is different from any of her siblings and the degree to which she associates and identifies with siblings on either side of her family;

(6) whether the child is known by a particular surname in the community;

(7) the misconduct, if any, of a parent, such as the failure to support or visit with the child; and

(8) the difficulties, harassment, or embarrassment that the child may experience by bearing the current or proposed surname." (Id. at 221).

In setting forth these factors, the Eberhardt Court noted that these were non-exhaustive and relied (as do we) on the authority found in Matter of John Phillip M.-P., supra. at 318-319; Gubernat v. Deremer, 140 N.J. at 141-142, 657 A.2d 856; In re Wilson, 162 Vt. 281, 285, 648 A.2d 648; In re Change of Name of Andrews, 235 Neb. 170, 177, 454 N.W.2d 488; Bobo v. Jewell, 38 Ohio St.3d 330, 335, 528 N.E.2d 180; In re Marriage of Schiffman, 28 Cal.3d at 647, 169 Cal.Rptr. 918, 620 P.2d 579).

It must be decided if Mr. SZ's objection to the Petition is a reasonable one. The Court is aware of a body of case law which holds that the Father's name is to be considered preeminent (see Matter of Goldstein, 104 AD2d 616, 479 N.Y.S.2d 385 [2nd Dept. 1984]; Matter of Pollack, 2 AD2d 756, 756, 153 N.Y.S.2d 282 [2nd Dept. 1956]; In re Petras, 123 Misc 2d 665, 672, 475 N.Y.S.2d 198, 203-04 (Civ. Ct. Queens Cty 1984]). These cases bear examination. The Court in Matter of Goldstein opined that:

"Depriving a child of his or her father's surname is normally a far-reaching action [cite omitted] Applications for the change of an infant's surname are usually granted only where the natural father is guilty of misconduct, abandonment, or lack of support (Id.at 616) citing Matter of Williams, 86 Misc 2d 87; Matter of Robinson, 74 Misc 2d 63; Matter of Fein, 51 Misc 2d 1012; Matter of Baldini, 17 Misc 2d 195; Matter of Wittlin, 61 NYS2d 726, 728." (Id. At 616)

Matter of Pollack, supracautioned that: "To deprive a son of his father's surname is a serious and far-reaching action." (Id. at 756)

In re Petras, 123 Misc 2d 665, 672, 475 N.Y.S.2d 198, 203-04 (Civ. Ct. Queens Cty 1984) echoed Pollack's declaration that: "Deprivation of a father's surname is a serious and far reaching action." The Petras Court added the rationale: "More so in our American society with respect to a male child that normally carries a surname throughout life." (Id. at 672).

The Court notes that the aforementioned cases are not of recent vintage and reflect a bias in favor of the patronymic. Such a cultural practice, when privately agreed upon, will not be disturbed. When haled into Court, however, the neutral appraisal of the law cannot countenance what is simply gender discrimination. As stated in In Re Eberhardt:

"To the extent the father's objection was based on traditional values, meaning that it is Anglo-American custom to give a child the father's name (see Gubernat v. Deremer, 140 N.J. 120, 129-137, 657 A.2d 856; In re Marriage of Schiffman, 28 Cal.3d 640, 643, 169 Cal.Rptr. 918, 620 P.2d 579; Rio v. Rio, 132 Misc 2d 316, 317-322, 504 N.Y.S.2d 959), the objection is not reasonable, because neither parent has a superior right to determine the surname of the child (see Swank v. Petkovsek, 216 AD2d 920, 629 N.Y.S.2d 129; Matter of Bell v. Bell, 116 AD2d 97, 99, 500 N.Y.S.2d 387; Matter of Cohan v. Cunningham, 104 AD2d 716, 480 N.Y.S.2d 656; Rio v. Rio, supra. at 319." (Id. at 123).

When the enumerated Eberhardt factors are applied against a fair reading of the submitted proof, all favor the Petitioner's request and bear no further discussion save two: the effect of the proposed name change on the child's relationship with either parent and the misconduct, if any, of a parent, such as the failure to support or visit with the child. These will be analyzed ad seriatim.

As noted above, the corroborated testimony of Ms. DZ show that "G" identifies as a member of Mr. JZ's family and wishes to have the same name as her half-siblings. As Justice Luft wrote in her eloquent opinion Matter of Mark L.S., 66 Misc 3d 343, 115 N.Y.S.3d 627 (Sup. Ct. Suffolk Cty 2019): "As a rule, feelings of embarrassment or alienation are considered extremely pertinent factors in the best interests analysis" (Id. at 346; citing In re Altheim, 12 AD3d 993, 784 N.Y.S.2d 910[3d Dept. 2004]).

Matter of Mark L.S. is in accord with the holding in Matter of Caraballo, 13 Misc 3d 1229(A), NY Slip Op. 52054(U), 2006 WL 3041684 [Civ. Ct. NY Cty 2006] wherein the Court stated that sharing the surname by the child with the custodial parent "is a legitimate point of concern because it minimizes embarrassment, harassment and confusion in school and social contacts" (Id. citing Matter of Shawn Scott C., 134 AD2d 345, 520 N.Y.S.2d 821 [2d Dept., 1987]; Learn by Houck v. Haskell, 194 AD2d 859, 598 N.Y.S.2d 595 [3d Dept., 1993]; Mercado v. Townsend, 225 AD2d 555, 638 N.Y.S.2d 762 [2d Dept., 1996]; see also In re Kobra, 37 Misc 3d 1216(A), 961 N.Y.S.2d 358 [Civ. Ct. Kings Cty 2012], appeal granted, order rev'd, 46 Misc 3d 54, 2 N.Y.S.3d 313 [App. Term. 2014]).

It must be conceded that the Court in Trevellian v. Wilson, 19 Misc 3d 137(A), 866 N.Y.S.2d 96 [App. Term 2008] reached a contrary conclusion on the basis that: "[i]t is no longer uncommon in today's society for a child to have a different surname than that of a parent, and, to the contrary, it has become commonplace for siblings to have different surnames." (Id.). This Court finds the facts of the instant case to be distinguishable from those presented in Trevellian and thus declines to adopt its holding.

The question of misconduct on the part of Mr. SZ mandates close review because he has earnestly and believably expressed deep love for "G" during this proceeding. He has not had the visits with his daughter that he would wish. It appears that this was occasioned both by his own behavior and the actions of his ex-wife. The fact remains that at a critical point in her young life, "G" formed a stronger parental bond with Mr. JZ than with him. Mr. SZ's anguished testimony acknowledges this state of affairs. The ultimate factor, however, is "G's" well-being.

Mr. SZ's testimony regarding the financial support for "G" considerably undermines his position. In the case of Matter of Pollack, supra., the Court was impressed by the Father's promise to pay arrearages in child support when permitted visitation. Here Mr. SZ has made it clear that his good name may be alienated for a price-no further child support. The Court had hoped that this accusation by Petitioner would be denied or explained. Instead, Mr. SZ let it stand unrefuted, thus indicating his agreement. This was corroborated by his words from the witness stand in which he acknowledged both his ability to pay child support and willful refusal to do so based upon his ex-wife's behavior. It is readily apparent that only his daughter suffered as a result of this treatment. To use such behavior in the form of a threat to hang as a financial Sword of Damocles over "G's" head can only be considered misconduct for the purposes of the application. We find this to be a "justifiable basis for changing a child's surname" (In re Cruz, 49 Misc 3d 155[A], 29 N.Y.S.3d 846 [App. Term. 2nd Dept. 2015]).

Considering all of these factors the Court is constrained to find that the forgoing has proven both that there is no reasonable objection to the proposed name change and that "G"'s best interest will be substantially by allowing her to change her middle name and surname this time.

Accordingly, the Petition must be granted.

Simultaneously with the signing of this order, the Court is executing a Name Change Order (Civil Rights Law Sec. 63) and a further Order partially sealing the record pertaining to "G's" testimony (22 NYCRR Sec.216.1).

This Memorandum is also the Order of the Court.

[1] The names have been abbreviated to protect the child's identity

[2] On Moral Duties (De Officiis) Marcus Tullius Cicero. The term "pietas can also be translated as: piety; dutifulness; affection, love; loyalty; gratitude" (Pocket Oxford Latin Dictionary)."

A ROSE BY ANY OTHER NAME...

The child or "infant" in this case is approximately 14 years old and the mother wants to change the last name from father's to mother's.

Matter of A. Sve, Date filed: 2021-07-21, Court: Civil Court, Queens, Judge: Judge Wendy Changyong Li, Case Number: NC-000058-20/QU:

"Background 

A. Sve (“Petitioner”) sought to change the name of her son, Jon. Spe (“Infant”), to Jon. Sve. Infant’s father, M. Spe (“Father”), objected to the name change. This matter was previously adjourned before other courts and was subsequently assigned to this Court on May 27, 2021, on which day, this Court conducted a name change hearing where the Petitioner, the Infant, and the Father appeared via Microsoft Teams live video, pursuant to a hearing schedule established by the prior courts. 

Discussion

Civil Rights Law states that:

If the court to which the [name change] petition is satisfied thereby, or by the affidavit and certificate presented therewith, that the petition is true, and that there is no reasonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the interests of the infant will be substantially promoted by the change, the court shall make an order authorizing the petitioner to assume the name proposed.

Civ. Rts Law §63.

The first prong of evaluating a child’s name change petition is the absence of a reasonable objection to the name change. Objections to the name change must relate to the infant’s best interests or the objecting parent’s relationship with the infant (Matter of Eberhardt, 83 AD3d at 123; Matter of Kobra [Hossain], 46 Misc 3d 54, 56 [App. Term 2d Dept 2014]). In our modern society, a child need not assume a father’s last name, may take a mother’s last name, and in adulthood, may choose another name altogether as adherence or non-adherence to old tradition does not necessarily impact either the infant’s interest or parent-child relations (see Matter of Eberhardt, 83 AD3d at 123; Matter of Kobra [Hossain], 46 Misc 3d at 56). In our instant matter, the Father testified to various conflicts with the Petitioner arising from their contested divorce. The Father’s only testimony that pertained to the name change was that the Petitioner, not the Infant, was behind the request for the name change, and that having the Infant to carry his name was all the Father had left. However, the Petitioner and the Infant both testified that the Infant was the one requesting the name change. The Father did not answer the Court’s specific inquiry as to the significance of the Infant having the Father’s last name, and instead referred to a discussion with the Infant regarding hyphenating the last names of the Petitioner and the Father. The Infant spontaneously denied such a discussion and denied it again in later testimony. The Infant specifically rejected hyphenating the names on the ground that it would contain the Father’s last name. The Father identified no specific benefit to the Infant for keeping the Father’s last name nor any specific detriment to the Infant for taking the Petitioner’s last name. To the extent the Father raised any objections to the name change, they were unrelated to the Infant’s best interests and related instead to concerns for himself and the contentious relationship between the Father and the Petitioner (see Matter of Eberhardt, 83 AD3d at 121-22).

Failing to visit the Infant is a further ground for rejecting the Father’s objections (see Matter of Eberhardt, 83 AD3d at 124; In re Cruz, 49 Misc 3d 155[A], 2015 NY Slip Op 51805[U] *1 [App Term 2d Dept 2015]). Although the Father generally suggested that the Petitioner interfered with his visitation, the Petitioner testified that she did not prevent the Infant from contacting the Father and that the Father had only seen the now 13 year old Infant four (4) times since the Infant was two years old. The Infant also testified that the Father had not been a part of his life.

Under the second prong, this Court may change an infant’s name only upon finding that the “interests of the infant will be substantially promoted by the change” (Matter of Stone v. Weinberg, 189 AD3d 1425, 1426 [2d Dept 2020]; Matter of Rudder v. Garber, 164 AD3d 511, 511 [2d Dept 2018]; Matter of Eberhardt, 83 AD3d 116, 121 [2d Dept 2011]; Matter of John Phillip M.-P., 41 AD3d 720, 721 [2d Dept 2007]); Matter of Siira, 7 AD3d 803, 803 [2d Dept 2004]). The court must evaluate the infant’s best interests in the totality of the circumstances (Matter of Stone v. Weinberg, 189 AD3d at 1426; Matter of Eberhardt, 83 AD3d at 123). Neither parent has a superior right to determine their child’s name (Matter of Stone v. Weinberg, 189 AD3d at 1426; Matter of Eberhardt, 83 AD3d at 123). Here, the Infant’s sharing the last name of his mother, the Petitioner, with whom he lives, is a valid concern as it would reduce embarrassment, harassment, and confusion in educational and social scenarios as the Infant testified during the hearing (Matter of John Phillip M.-P., 307 AD2d 318. 318-19 [2d Dept 2003]). The Infant testified that his mother, the Petitioner, raised him and that having his Father’s last name was like having a “random stranger’s name” (Transcript at 13). In addition, the Infant testified that his cousins often told him that he was “not part of the family because [he had a] different last name” than his cousins, which was Sve (Id. at 20). Using the Microsoft Teams breakout room feature, this Court separately spoke to the Infant outside the presence of both the Petitioner and the Father. The Infant alone testified that he considered his grandfather to be his father because he drove him to practice and that the family members with whom he spent time were Sve(s). The Infant testified several times that having a different name from his mother, the Petitioner, and the family with whom he spent time felt “weird” (Transcript at 19-20, 22). The Infant testified that he wanted the same last name as his mother, the Petitioner, for a sense of community.

Based upon the testimonies of the Petitioner, the Father and the Infant during the hearing, this Court finds that the Father had minimal contact with the Infant since he left the household, that Infant had substantial, ongoing contact with the Petitioner’s family who shared the Petitioner’s surname, and was potentially exposed to embarrassment and confusion by having his Father’s surname, while residing with his mother, the Petitioner. Under these circumstances, the name change would substantially promote the Infant’s interests (see Matter of Eberhardt, 83 AD3d at 124-25, see In re Cruz, 2015 NY Slip Op 51805[U] *1). Therefore, this Court grants Petitioner’s petition."

MENTAL HEALTH ISSUE AND NEGLECT

If you suffer from mental illness, does it mean you are incapable of parenting your children? Would the result have been different if this was a custody matter and not a neglect proceeding?

Matter of Jonefe R. v. Denise T., NYLJ April 12, 2019 , Date filed: 2019-03-27, Court: Family Court, Bronx, Judge: Judge Sarah P. Cooper:

"On June 7, 2018, ACS filed petitions against Denise T. [hereinafter the "Respondent"] alleging that she neglected the children Jonefe R. (DOB: xx/xx/2013) and Alexa N. (DOB: xx/xx/2010) within the meaning of section 1012(f)(i)(b) of the Family Court Act by suffering from a mental illness which impaired her ability to care for her children.

The fact-finding hearing in this matter commenced on December 3, 2018 and continued on January 29, 2019. The non-respondent father of the child Alexa (Mr. Luis N.), preventive services case-planner Ms. Sherman, and ACS caseworker Mr. Cureton testified on behalf of the Petitioner. The Court accepted into evidence without objection the child Jonefe’s birth certificate (Petitioner’s Exhibit 1), the child Alexa’s birth certificate (Petitioner’s Exhibit 2), and certified and delegated medical records from Lincoln Medical and Mental Health Center related to the Respondent (Petitioner’s Exhibit 3). Neither the Respondent, nor the attorney for the children, called any witnesses or presented any evidence. Each attorney gave an oral summation1 and the matter was adjourned for decision. Family Court Act §1012 (f) (i), in pertinent part, defines a “neglected child” as a child, less than 18 years old whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent to exercise a minimum degree of care.

A party seeking to establish neglect must show first that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent. Nicholson v. Scoppetta, 3 NY3d 357 (2004). In determining whether a child is neglected within the meaning of Family Court Act §1012, courts must evaluate parental behavior objectively and ask whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances then and there existing. Nicholson v. Scoppetta, supra at 370. The standard takes into account the special vulnerabilities of the child, even where general physical health is not implicated. id. A finding of neglect does not require actual injury but, rather, an imminent threat that such injury or impairment may result. Matter of Aiden L., 47 AD3d 1089 (3rd Dept. 2008). The court is required to “focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior.” Nicholson v. Scoppetta, supra at 369. A finding of neglect should not be made lightly, nor should it rest upon past deficiencies alone. Matter of Daniel C., 47 AD2d 160 (1st Dept. 1975).

A parent’s mental condition may form the basis of a neglect finding if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the child. Matter of Noah Jeremiah J. v. Kimberly J., 81 AD3d 37 (1st Dept. 2010). Neither expert testimony, nor a definitive psychiatric diagnosis, is required to show a parent suffers from a mental illness. Matter of Danielle M., 151 AD2d 240 (1st Dept. 1990); Matter or Zariyasta S., 158 AD2d 45 (1st Dept 1990). In Matter or Zariyasta S. supra, the First Department held that courts should consider the threat to the child’s well-being, instead of the formal diagnosis of the condition from which the threat emanates.

In the present case, the evidence against the Respondent is not refuted as she did not testify on her own behalf. A child protective proceeding is a civil proceeding and therefore the court may draw the strongest inference that the opposing evidence in the record permits where parties fail to testify at the fact-finding hearing. Commissioner of Social Services v. Philip De G., 59 NY2d 137 (1983). However, the strongest negative inference cannot provide a missing element of proof. Matter of Kayla F., 39 AD3d 983 (3rd Dept. 2007).

The medical records, in evidence as Petitioner’s Exhibit 3, indicate that on June 2, 2018, the Respondent was seen in the emergency room of Lincoln Medical and Mental Health Center [hereinafter "LMMHC"] where she reported feeling anxious. The Respondent was diagnosed as having an “acute stress reaction” as well as a urinary tract infection. The Respondent was tearful and at times refused to answer questions, so the Respondent was referred to the psychiatry department for an evaluation. At some point during the Respondent’s evaluation with the psychiatry department, a social worker joined to assist with the evaluation. The medical records contain notes from both the doctor and the social worker who was present during the evaluation. During the interview, the Respondent denied any history of psychiatric conditions, denied any history of taking psychotropic medications and denied any history of seeing a psychiatrist. The Respondent reported that she had been feeling stressed lately and that she had not slept in two days. The Respondent reported that people are following her and that she feels threatened by her neighbors. The Respondent denied having any suicidal ideations or homicidal ideations. The Respondent admitted to hearing voices. The Respondent indicated that she hears “many” voices that want to harm her. The Respondent reported that the first time she ever heard voices was two weeks prior. The Respondent reported that she had been hearing the voices constantly for the past three days. The Respondent denied any visual hallucinations and she was able to correctly identify the number of people in the room at that time. The Respondent indicated that she had a painful headache and that her vision was blurred. The Respondent reported that she had attempted suicide by overdose about three years prior.

The social worker’s notes from the interview indicate that the Respondent was reported as being “tearful but engaged” in the interview. Both the social worker and the doctor noted that, throughout the interview, the Respondent was pre-occupied with concern for her children. The Respondent indicated that, prior to coming to the hospital, she had left the children with a neighbor she knew and trusted. With the assistance of the social worker, the Respondent was able to contact her eldest daughter to confirm that the Respondent’s children were fine. The social worker noted that the Respondent appeared relieved after she spoke to her daughter. The doctor noted that the Respondent’s thought process during the interview was “linear” and “goal directed.” The doctor assessed that the Respondent was not a suicide risk. The doctor’s notes indicate that the Respondent was experiencing auditory hallucinations and that there was a concern for “new onset psychosis” as there was “no previous documented history of psychiatric diagnosis.” The doctor’s assessment from the interview was that “given the level of psychosis and distress, the patient could potentially be a danger to self and others” and that the Respondent could “benefit from psychiatric hospitalizations for stabilization and safety.” The doctor’s notes indicate that “current presentation could be etiologically related with a primary psychotic process, but substance and medical induced psychosis, mood disorder and somatic symptoms disorder, even factitious disorder and malingering” need to be carefully ruled out. The doctor prescribed Seroquel to the Respondent for “anxiety and psychosis.”

After being evaluated by the psychiatry department, the Respondent was admitted to the hospital. A doctor ordered a CT scan, indicating in the order under “history” that the Respondent had “new onset psychosis with auditory hallucinations” and that the Respondent’s diagnosis was an “acute stress reaction.” The Respondent was prescribed “Seroquel” for a “psychotic disorder not due to a substance or known physiological condition.”

The medical records indicate that, at times during her hospitalization, the Respondent was seen talking to herself. A nurse noted on June 3, 2018 that the Respondent appeared paranoid and “internally preoccupied.” Additionally, at times during her hospitalization, the Respondent would remain mute instead of answering questions. The medical records indicate that the State Central Registry was called after the neighbor who had one of the children indicated they were unsure how long they could keep the children. On June 4, 2018, the Respondent was noted as being “stable but disorientated to time and place” and the Respondent was prescribed Risperdal and Ativan on an “as needed” basis for agitation and anxiety. The medical record indicates that, on June 4, 2018, a doctor determined that the Respondent was unable to care for herself or her children at that time and that she needed inpatient psychiatric care. On June 4, 2018, the Respondent was transferred from LMMHC to Brunswick Hospital to be psychiatrically hospitalized. The Petitioner did not admit the Respondent’s records from Brunswick Hospital.

The medical records clearly establish that, when the Respondent was hospitalized at LMMHC in June of 2018, the Respondent was suffering from a serious mental disturbance. The medical records indicate that the Respondent’s mental disturbance was “acute” and “new.” The medical records indicate that the Respondent did not have a prior history of psychosis or psychiatric treatment. It is significant to this Court that none of the Petitioner’s three witnesses presented any evidence that the Respondent’s actions in June of 2018, or in the days and weeks leading up to June of 2018, were neglectful. Most significantly, the two witnesses who were familiar with the Respondent prior to June 2018 (Mr. Luis N. and Ms. Sherman) both indicated that they did not have concerns regarding the Respondent’s behavior, or concerns regarding the Respondent’s care of the children, prior to the Respondent being hospitalized in June of 2018. In fact, Mr. Luis N. testified that prior to the instant petitions being filed, he was seeing the Respondent three to four times a week and he had no concerns regarding the Respondent’s mental health. The preventative services case-planner, Ms. Sherman, testified that she was the Respondent’s assigned worker from September 13, 2017 to June 18, 2018. She testified that she would visit the Respondent’s home two to three times a month and that at no time did she ever note any concerns about how the Respondent cares for the children. Ms. Sherman noted that the Respondent was forthcoming, that she kept her children’s medical appointments up to date and that she appeared to have insight. Ms. Sherman referred the Respondent for a mental health evaluation because the Respondent had disclosed to Ms. Sherman that she had been depressed in the past after a romantic relationship ended. The Respondent had disclosed to Ms. Sherman that she attended therapy in 2015 because she was sad over the end of the relationship and because it had been a relationship with domestic violence. The Respondent further disclosed that she stopped attending therapy after she felt better. Ms. Sherman testified that she referred the Respondent for a mental health evaluation, not because of the Respondent’s behavior, but rather because she thought the Respondent could benefit from extra support.

The ACS caseworker, Mr. Cureton, testified that he was assigned to the Respondent’s case after an ORT came in on June 3, 2018. Mr. Cureton first spoke to the children on June 4, 2018. Both children told Mr. Cureton that over the past weekend, the Respondent had gotten sick and gone to the hospital. The child Alexa told Mr. Cureton she was sad because her mother was not with her. Mr. Cureton did not ask the child Alexa whether the Respondent had made any plans for Alexa’s care while the Respondent was hospitalized.

The present case can be distinguished from cases where evidence of parent’s inability to care for their child and evidence of a parent’s long-standing history of mental illness, is sufficient to support a finding that the child’s physical, mental, or emotional condition was in imminent danger of becoming impaired (see for example, Matter of Jayden S., 159 AD3d 500 [1st Dept. 2018]).

The medical records clearly demonstrate that the Respondent was hospitalized in June of 2018 because she was suffering from a serious and new onset of psychosis. There is no evidence before this Court to suggest that the Respondent could have anticipated in June of 2018 that she would have to be psychiatrically hospitalized, nor is there any evidence that the Respondent was neglectful of her own mental health needs leading up to June of 2018. While the Respondent did attempt suicide three years prior to her hospitalization in June of 2018, and while the Respondent attended therapy for a period of time three years prior to her hospitalization in June of 2018, there is no evidence that in the years since then the Respondent has had any mental health issues2. Further, the evidence demonstrates that, after not sleeping for two days and hearing voices for three days, the Respondent sought medical and mental health treatment by going to the hospital. Before seeking such treatment, the Respondent made an appropriate plan for her children by leaving them in the care of a neighbor the Respondent knew and trusted. The medical records show that at the hospital, even in the midst of her psychosis, the Respondent was pre-occupied with concern for the children. The Respondent leaving the children in the care of a neighbor she knew and trusted to go to the hospital to address an acute mental disturbance does not constitute neglect and in fact demonstrates that the Respondent acted appropriately to make a safety plan for her children. Accordingly, the Respondent’s actions did not fall below what a reasonable or prudent parent would have done in her situation.

The present case can be distinguished from cases where the parent’s behavior in front of the child, or the parent’s care of the child, supports a finding of neglect based upon mental illness (see for example, Matter of Melanie C., 136 AD3d 512 [1st Dept. 2016] where the evidence established that the mother, while in the child’s presence, threatened to kill herself and the child, that the mother did not take her medication on a consistent basis, and that the child had two facial injuries that were not adequately explained, as well as diaper rash that became more severe after the mother failed to fill the child’s prescription.) There is no evidence before this Court, other than the children missing their mother while she was hospitalized, that the children were ever affected by the Respondent’s psychosis in June of 20183.There is no evidence before this Court of any inappropriate or concerning behavior by the Respondent other than her behavior in the hospital in June of 2018. In fact, two of the Petitioner’s witnesses testified that they saw the Respondent regularly leading up to June of 2018 and that they had no concerns regarding the Respondent’s care of the children.

For the foregoing reasons, the Court finds that the Petitioner has failed to prove by a preponderance of the evidence that the Respondent neglected the children within the meaning of Section 1012(f)(i)(b) of the New York State Family Court Act. Accordingly, the petitions are dismissed with prejudice. This constitutes the decision and order of the Court."

CHANGING A CHILD'S SURNAME WHEN UNMARRIED PARENTS SPLIT

Matter of Rudder v Garber, 2018 NY Slip Op 05596, Decided on August 1, 2018, Appellate Division, Second Department:

"Melissa Patton Rudder (hereinafter the mother) and John Richard Garber (hereinafter the father) are the parents of an infant, who was born in 2012. When the infant was born, he was given the father's surname as reflected by the infant's birth certificate. Although the mother and father, who never married, lived together with the infant for approximately one year, they eventually ended their relationship. In December 2014, the mother commenced this proceeding pursuant to Civil Rights Law article 6 on behalf of the infant for leave to change the infant's surname to Rudder-Garber. The Supreme Court granted the petition, and the father appeals.

"Civil Rights Law § 63 authorizes an infant's name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change" (Matter of Eberhardt, 83 AD3d 116, 121). Here, the record supports the Supreme Court's determination that the father's objections to the proposed name were not reasonable, and that the interests of the infant will be substantially promoted by the change (see Civil Rights Law § 63; Matter of Eberhardt, 83 AD3d at 121-125; Matter of Siira, 7 AD3d 803, 803-804; Matter of John Phillip M.-P., 307 AD2d 318, 319).

The father's remaining contention, that the Supreme Court erred in failing to conduct a hearing before making its determination, is without merit (see Civil Rights Law § 63)."

TESTIMONY OF CHILD IN NEGLECT PROCEEDING

Matter of Mirza S.A. (Mirza A A.), 2018 NY Slip Op 02455, Decided on April 11, 2018, Appellate Division, Second Department:

"The Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging that the father neglected the subject child by engaging in acts of domestic violence in the child's presence. After a fact-finding hearing, the Family Court found that the father neglected the child. Subsequently, the court issued an order [*2]of disposition, releasing the child to the custody of the nonrespondent mother under the supervision of ACS for a period of 12 months. The father appeals.

The appeal from so much of the order of disposition as released the child to the mother's custody under the supervision of ACS for a period of 12 months must be dismissed as academic, as that portion of the order has expired (see Matter of Justin P. [Damien P.], 148 AD3d 903, 903; Matter of Ethan B. [Frederick B.], 130 AD3d 816, 816). However, the appeal from the portion of the order of disposition which brings up for review the finding that the father neglected the child is not academic, since the adjudication of neglect constitutes a permanent and significant stigma, which might indirectly affect the father's status in future proceedings (see Matter of Justin P. [Damien P.], 148 AD3d at 904; Matter of Ethan B. [Frederick B.], 130 AD3d at 817).

To establish neglect, the petitioner must demonstrate by a preponderance of the evidence, "first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with the proper supervision or guardianship" (Nicholson v Scoppetta, 3 NY3d 357, 368; see Family Ct Act §§ 1012[f][i]; 1046[b][i]). Here, the Family Court's finding that the father neglected the child is supported by a preponderance of the evidence (see Matter of Jaden J. [Ernest C.], 106 AD3d 822; Matter of Jayden B. [Erica R.], 91 AD3d 1344, 1345; Matter of Elijah J. [Phillip J.], 77 AD3d 835).

At the hearing, the Family Court concluded that the child would suffer emotional trauma if compelled to testify in front of the father (see Matter of Michael U. [Marcus U.], 110 AD3d 821; Matter of Elisha M.W. [Ronald W.], 96 AD3d 863; Matter of Deshawn D.O. [Maria T.O.], 81 AD3d 961). The court thus permitted the child to testify outside the father's presence. Nevertheless, to protect the father's rights, the court arranged for the father to view the testimony via video linkup, granted a recess after the completion of ACS's direct case to permit the father and his attorney time to consult before cross-examining the child, and permitted a further recess after the completion of that cross-examination for further consultation. The court's conclusion that the child would suffer trauma if compelled to testify in the father's presence was reasonable. Moreover, in its balancing of the respective rights and interests of the parties, the court did not improvidently exercise its discretion. Finally, because the father's attorney was present during the child's testimony and cross-examined him on the father's behalf, neither the father's due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child's testimony (see Matter of Q.-L. H., 27 AD3d 738, 739; see also Matter of Deshawn D.O. [Maria T.O.], 81 AD3d 961; Matter of Sylvia J., 23 AD3d 560)."

ADHD AND SCHOOLS - KNOW YOUR RIGHTS

The U.S. Department of Education, Office of Civil Rights, has issued guidelines aimed at preventing schools from discriminating against the growing numbers of students with attention deficit hyperactivity disorder. In a letter to school districts and a “know your rights” document, the department said schools must obey existing civil rights law to identify students with the disorder and provide them with accommodations to help them learn.

See http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201607-504-adhd.pdf

WHERE DOES CHILD RESIDE FOR PURPOSES OF NYC LEAD PAINT LAW

In a child custody/support case, support is paid to the parent who has primary residential custody and the courts, at least those which follow the First Department, usually determine that based solely on the actual amount of overnights that the child spends with each party. See e.g. Joseph M. v. LAUREN J., 2014 NY Slip Op 51536 - NY: Supreme Court 2014

So will a different test apply with respect to statutes that have different purposes? In YANIVETH R. v. LTD Realty Co., 2016 NY Slip Op 2550 - NY: Court of Appeals 2016 the court was faced with the following question:

"New York City adopted lead abatement legislation in 1982 that imposes a duty on landlords to remove lead-based paint in any dwelling unit in which a child six years of age and under resides (see Administrative Code of the City of NY former § 27-2013[h][1] ["Local Law 1"]). The issue in this case is whether a child "reside[s]" in an apartment containing lead-based paint, thereby triggering a landlord's duty under Local Law 1, when the child does not live in the apartment but spends approximately 50 hours per week there with a caregiver."

The court said clearly the child is not a resident of the caregiver but Judge Fahey in dissent noted:

"The intent of Local Law 1 is obvious: its enactors sought to shield young children, that is, those who cannot protect themselves, from the dangers of lead-based paint poisoning. The will of a legislative body is discernable from its diction (see Bryant v New York City Health & Hosps. Corp., 93 NY2d 592, 602 [1999]), and the use of the word "reside" in Local Law 1 signals a desire to protect young children who may be exposed to lead-based paint in more than one location. To conclude otherwise would be to say that a child — any person, in fact — may reside in only one place. The majority opinion eliminates the distinction between "residence" and "domicile" established in Newcomb (192 NY at 250). It effectively means that a child may have only one "residence."

The impact of today's decision transcends this case.

It threatens the ability of those young children who are covered by Local Law 1 and who were subject to either a joint custody agreement or a comparable shared living arrangement at the time of their exposure to lead-based paint to recover damages for their resultant injuries. It threatens the ability of children who are covered by the successor to Local Law 1 (see Administrative Code § 27-2056.1 et seq.) and who are subject to similar living arrangements to recover damages for the same harm. It also beseeches a legislative response."

CAN MINORS BE EMPLOYED AS INDEPEDENT CONTRACTORS?

In NY, a minor (those under 18) need "working papers". See https://labor.ny.gov/youth/14-to-17.shtm and Article 4 of New York Labor Law.

But what of the "babysitter", the "snow shoveler", etc.? For an interesting twist on a child injured while mowing a lawn, see Vincent v. Riggi & Sons, 30 NY 2d 406 - NY: Court of Appeals 1972 and note the following:

""Employed" is elsewhere defined to include those "permitted or suffered to work" (Labor Law, § 2, subd. 7). The language has been construed to include independent contractors. Thus, in Koenig v. Patrick Constr. Corp. this court interpreted a similar phrase "employing or directing another to perform labor of any kind" as covering both employees and independent contractors (298 N.Y. 313, 316-317). Indeed, in Bernal v. Baptist Fresh Air Home Soc. (275 App. Div. 88, 95, affd. 300 N.Y. 486), concerned both with section 130 and section 2 (subd. 7), the phrase "permitted or suffered to work" was interpreted as including children employed by a subcontractor when the principal had knowledge of the employment (see, also, Clark v. Arkansas Democrat Co., 242 Ark. 133, 135, 410*410 interpreting the phrase "employed or permitted to work" of a child labor statute as covering an independent contractor)."

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>>

CAN A CHILD BE A WITNESS IN A CIVIL CASE?

Question posed yesterday - if the matter is not a matrimonial, not a criminal action - what are the rules?


DELMARIE QUINONES, an Infant, by Her Mother and Natural Guardian, DELMA ALCANTARA, et al., Plaintiffs, v. CLIFTON CABALLERO et al., Defendants.10 Misc.3d 486 , 802 N.Y.S.2d 831 (Brnx. Co. 2005):

"V. The Child Witness

Plaintiff Quinones was 12 years old when she testified, recalling events when she was 10½ years old. To rely on a 12-year-old minor's testimony, the court must find she had sufficient capacity and intelligence, not only to comprehend the nature and obligations of the oath she took at her deposition, but also to recall and give an accurate account of what she saw or heard concerning the material events or circumstances she was questioned about. (People v Parks, 41 NY2d 36, 45 [1976]; People v Singleton, 284 AD2d 249 [1st Dept 2001]; People v Taylor, 244 AD2d 152, 153 [1st Dept 1997]; People v Bunche, 235 AD2d 271, 272 [1st Dept 1997].) Competency determinations, at least where the child witness is a complainant testifying against a defendant in a criminal action, rely on the trial court's opportunity to observe the witness, her demeanor and presence of mind, and undertake inquiries that disclose her capacity and intelligence. (People v Parks, 41 NY2d at 46; People v Taylor, 244 AD2d at 153.) "Impressions that may be validly drawn only from closehand personal observation cannot be 'photographed into the record' for later study." (People v Parks, 41 NY2d at 46.)

Against this authority, may the court in the context of summary judgment motions rely on a minor's testimony, already sworn, without actually observing the witness and conducting an independent inquiry to determine her competency? To rely on the minor's testimony as defendants seek, for purposes of granting them summary judgment and dismissing plaintiffs' action, obviously will preclude the trial judge from making this determination for purposes of the trial.

For purposes of the pending dispositive motions, plaintiff Quinones already was sworn and testified, without plaintiffs' or any other party's objection. While objections to a witness' competency are not waived by the failure to pose them before or during her deposition as she responded to questions (CPLR 3115 [d]), the action is now at a potentially dispositive juncture. Neither at the deposition, nor in the context of these motions, have plaintiffs or any other party raised any question, based on the opportunity for "closehand observation" they had at the deposition, that the minor did not have the capacity or intelligence to understand and respond to any question posed or to recall and accurately recount material facts. (People v Parks, 41 NY2d at 46.)

The context here departs from the authority governing criminal trials in critical respects. A deposition upon oral questions is not a discovery device in criminal actions (e.g., CPL 240.20), so there is no opportunity before the trial for "closehand observation" of a child witness and scrutiny of her capacity and intelligence. (People v Parks, 41 NY2d at 46.) Here, although the court had no such opportunity except study of the transcript and corroborating or conflicting evidence, the parties had a thorough opportunity. Concomitantly, there is no analogy in criminal actions to the summary dispositions upon admissible evidence, routinely sought, and for which the parties therefore must be prepared, in civil actions.

In addition, while one side, here defendants, seeks to rely on the minor's testimony against the other side, unlike the prosecution relying on its complaining witness as an accuser against the other side, defendants rely not on their own witness, but on the other side's own witness, plaintiff Quinones. Most critically, and perhaps the explanation for plaintiffs' reluctance to raise a competency issue, if plaintiffs are to prevail, they must rely on the minor's testimony as well. Although her mother, plaintiff Alcantara, was present for the material events, neither side has found her recollection and account sufficiently useful to rely on her, despite her capacity as an adult, to support the parties' positions. Hence the minor is the witness on whom all parties must rely if they are to establish their claims or defenses.

Keeping the age of the key witness foremost in mind, the court finds no hint in the record that she was confused by the questions posed to her or had any difficulty expressing her recollection of the material events or her intended meaning. Nothing in the plaintiff mother's testimony or anywhere else in the record is in any way inconsistent with or otherwise casts any doubt on the certainty of the minor plaintiff's testimony. (See Totan v Board of Educ. of City of N.Y., 133 AD2d 366, 369 [2d Dept 1987].) In fact the mother corroborates both that the snow was "spread" over the part of the sidewalk where her daughter fell (affirmation of David Holmes, exhibit G, at 17), and that "more snow" had fallen "on top" of the snow that had been shoveled and salted. (Id. at 20.) This careful scrutiny provides assurance even where no issue was raised regarding the daughter's competency.

In these circumstances, in the context of summary judgment motions, where the parties against whom a minor's testimony is used raised no objection to the testimony and also must rely on it, the court, after scouring the record for uncertainty in the testimony and finding none, may rely on a sworn 12 year old's account, without her appearance and further examination. Consequently, based on the admission that no shoveling was observed in the area where plaintiff Quinones fell and that no additional salt had been spread there since she had walked there hours earlier, the Caballero defendants, at least, establish defendants' freedom from liability."