EXPOSING CHILD TO DOMESTIC VIOLENCE

The ending here is different than HBO's courtroom scene finale in Big Little Lies.

Matter of Jayce J. v. Jaquana J., Date filed: 2019-07-29, Court: Family Court, Bronx, Judge: Judge Michael Milsap, Case Number: NN-34471-2/18:

"….It is clear there is a history of domestic violence between Mr. M. and Ms. J. and that such violence has occurred in the presence of the children. In fact, respondent has filed two recent family offense petitions seeking an order of protection on behalf of herself and the children. (Docket O-XXXX/XX filed on 5/7/19 was dismissed for failure to prosecute and Docket O-XXXXX/XX filed on 6/25/19 is currently pending). The petitions allege Mr. M. has threatened Ms. J. with harm, including a threat with the use of a gun.

Pursuant to FCA §1012(f)(i)(B), a neglected child is defined as one “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/her parent…to exercise a minimum degree of care…in providing the child with proper supervision or guardianship, by inflicting harm , or a substantial risk thereof”.

This court entered an order of protection on 5/10/17 that required John M. to stay away from Jaquana J. and the children Avianna M. and Jayce J. except for ACS arranged visits. That order continued beyond that date and was in place when respondent Ms. J. appeared and submitted to the court’s jurisdiction. Ms. J. with counsel present was aware that the order was thereafter continued and therefore was in place on 6/4/18. Respondent acknowledged knowing that the full stay away order was in place when she initiated a meeting with Mr. M. and on that date she was assaulted by Mr. M. on the street with the children being present. It is well established that acts of domestic violence may be a basis of a neglect finding due to the children being at risk of physical or emotional harm. See In Re Mohammed J., 121 A.D.3rd 994, 995 N.Y.S.2d 126 (2nd Dept. 2014); In Re Jordan E., 57 A.D.3d 539, 869 N.Y.S.2d 162 (2nd Dept. 2008). Additionally, a neglect finding may be based on a parent’s failure to protect a child from continued exposure to domestic violence. Katherine GG v. Kenneth II, 254 A.D.2d 538, 678 N.Y.S.2d 689 (3rd Dept. 1998). Respondent Ms. J. has shown flawed parental judgment by continuing to have contact with Mr. M. with the children being present knowing of his assaultive behavior and thus knowingly exposing the children to violence with a risk of physical and/or emotional harm.

Therefore, this court enters a finding of neglect against respondent Ms. J. due to her inadequate supervision and guardianship by allowing the children to be exposed to domestic violence despite an order of protection that was in place to protect the children from further exposure to such."

CAN ADOPTED CHILDREN INHERIT FROM THEIR BIOLOGICAL FAMILY?

Matter of Murphy, 843 NE 2d 140 - NY: Court of Appeals 2005:

"The appeal before us involves the interplay of EPTL 3-3.3 and Domestic Relations Law § 117 (2). EPTL 3-3.3, the anti-lapse statute, provides that when a bequest is made to the issue or siblings of the testator, and the beneficiary predeceases the testator, the gift does not lapse but vests in the beneficiary's surviving issue. The anti-lapse statute was designed "to abrogate . . . the common-law rule that a devise or legacy to [a predeceased child] lapsed and to substitute the children of the deceased child for the primary object of the testator's bounty" (Pimel v Betjemann, 183 NY 194, 199 [1905]). The harshness of that common-law rule, more often than not, defeated the testator's intention (id. at 200). We must determine whether the testator's adopted-out child, expressly named in her will, qualifies as her issue within the meaning of EPTL 3-3.3. In simplest terms, the issue is "issue."
In 1986, the Legislature revised subdivision (b) of EPTL 3-3.3, along with Domestic Relations Law § 117, defining "issue" — for the purpose of triggering the anti-lapse provision—to "include adopted children and their issue to the extent they would be included in a disposition to `issue'" under EPTL 2-1.3 and Domestic Relations Law § 117 (2). Domestic Relations Law § 117 (2) (a) provides:

"Except as hereinafter stated, after the making of an order of adoption, adopted children and their issue thereafter are strangers to any birth relatives for the purpose of the interpretation or construction of a disposition in any instrument, whether executed before or after the order of adoption, which does not express a contrary intention or does not expressly include the individual by name or by some classification not based on a parent-child or family relationship." (Emphasis added.)

The Manning children contend that by naming their father— the adopted-out child—as a beneficiary under her will, Mildred altered his status from "stranger" to "issue" for the purposes of the anti-lapse statute with respect to that gift. Because much of Domestic Relations Law § 117 (2) (a) would lose meaning if we were to rule otherwise, we agree with this contention and reverse the Appellate Division order.

........

We therefore conclude that, under Domestic Relations Law § 117 (2) (a), adopted children and their issue are ordinarily "strangers" to their birth relatives, and thus are excluded from class gifts. They are not "strangers" when the bequest is to a named adopted-out child—here, to Clair Manning. If "stranger" or the three "nonstranger" conditions of section 117 (2) are to have any meaning, it must mean that biological children who are not "strangers" are "issue" under the anti-lapse statute. We therefore conclude that when Mildred Murphy named her adopted-out son Clair as a beneficiary of her will, she triggered the condition in section 117 (2) that made him a nonstranger, and thus her issue, with respect to the relevant bequest. His children, therefore, are entitled to the benefit of the anti-lapse statute."

MODIFICATION OF CUSTODY WHEN SIBLINGS ARE INVOLVED

In Cook v. Cook, 2016 NY Slip Op 5743 - NY: Appellate Div., 2nd Dept. 2016, the children were around 12 and 9 at the time of the hearing:


"A party seeking the modification of an existing court-ordered child custody arrangement has the burden of demonstrating that circumstances have changed since the initial custody determination" such that modification is necessary to ensure the children's best interests (Musachio v Musachio, 137 AD3d 881, 882-883; see Matter of Klotz v O'Connor, 124 AD3d 662, 662-663). "In determining whether a custody agreement that was incorporated into a judgment of divorce should be modified, the paramount issue before the court is whether, under the totality of the circumstances, a modification of custody is in the best interests of the [children]" (Matter of Honeywell v Honeywell, 39 AD3d 857, 858; see Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d 640, 641). To determine whether modification of a custody arrangement is in the best interests of the children, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the children, (2) the length of that placement, (3) the children's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the children, (7) the parents' relative financial status, (8) the parents' relative ability to provide for the children's emotional and intellectual development, and (9) the willingness of each parent to assure meaningful contact between the children and the other parent (see Anonymous 2011-1 v Anonymous 2011-2, 136 AD3d 946, 948; Cuccurullo v Cuccurullo, 21 AD3d 983, 984).

Here, the father demonstrated a sufficient change in circumstances to warrant modification of the custody provisions of the settlement agreement so as to award him residential custody of Jonathan. The record supports the Supreme Court's determination that Jonathan's relationship with the mother has deteriorated since the prior custody arrangement was agreed to (see Matter of Burke v Cogan, 122 AD3d 625, 626; Matter of Filippelli v Chant, 40 AD3d 1221, 1222; Matter of Maute v Maute, 228 AD2d 444), and that the father exhibits a greater sensitivity to his emotional and psychological needs, particularly with respect to the environment in Jonathan's new school (see Matter of Dorsa v Dorsa, 90 AD3d 1046, 1047). We discern no reason to disturb the court's determination that the father's testimony was more credible than the mother's testimony. Additionally, the attorney for the children advocated for residential custody to be awarded to the father, since Jonathan, who was 12 years old when the father's petition was filed, communicated a preference to reside with him. While the express wishes of a child are not controlling (see Matter of Ross v Ross, 86 AD3d 615; Matter of Bond v MacLeod, 83 AD3d 1304), the child's wishes should be considered and are entitled to great weight, where, as here, the child's age and maturity would make his input particularly meaningful (see Matter of Coull v Rottman, 131 AD3d 964; Matter of Rosenblatt v Rosenblatt, 129 AD3d 1091; Koppenhoefer v Koppenhoefer, 159 AD2d 113). Accordingly, the court's determination to modify the custody provisions of the settlement agreement so as to award the father residential custody of Jonathan has a sound and substantial basis in the record.

However, the Supreme Court's determination that the evidence did not demonstrate a sufficient change in circumstances warranting modification of the custody provisions of the settlement agreement so as to award the father residential custody of the parties' child Madison is not supported by a sound and substantial basis in the record. It "has long [been] recognized that it is often in the child's best interests to continue to live with his [or her] siblings" (Eschbach v Eschbach, 56 NY2d 167, 173), and "the courts will not disrupt sibling relationships unless there is an overwhelming need to do so" (Matter of Lao v Gonzales, 130 AD3d 624, 625; see Matter of Shannon J. v Aaron P., 111 AD3d 829, 831). It is undisputed that Jonathan and Madison have a close relationship, and, based upon the recommendations of the children's therapist that they should not be separated, the position of the attorney for the children that they should remain with the same custodial parent, and evidence that the father demonstrated more of an ability and willingness to assure meaningful contact between the children and the mother, and to foster a healthier relationship between the children and the mother, than the mother would have fostered between the children and the father, the court should have awarded residential custody of Madison to the father (see Eschbach v Eschbach, 56 NY2d at 173-174; Matter of Shannon J. v Aaron P., 111 AD3d at 831; Matter of Pappas v Kells, 77 AD3d 952; Matter of Tori v Tori, 67 AD3d 1021)."