April 9, 2020 Decisions

On motion to vacate Child Support Order entered on default, the Family Court erred in requiring father to meet the burden of proving that he was not served with the petition
Matter of K. (Anonymous) v. S. (Anonymous), 2019-07754
Appeal from an Order of the Family Court, Suffolk County, which denied the father’s objections to an Order denying his motion to vacate an order of support from 1999.
In 1995, the mother filed a petition to establish paternity and obtain child support for her child born in 1991. On April 21, 1999, after the putative father failed to appear, the Family Court issued an order of filiation and an order of support on default. Nearly nineteen years later, in March 2018, the father moved, pursuant to CPLR 5015(a)(4) to vacate the order of support for lack of personal jurisdiction, alleging that he was not served with the petition.

Following a hearing to determine the validity of service of process, the Support Magistrate (Lynaugh, S.M.) denied the father’s motion to vacate the order of support, finding that he failed to prove he was not served with the support petition in 1999. The father filed objections, which were denied (Harkin, J.).

The Order is reversed. The Second Department found that the Support Magistrate did not apply the correct standard inasmuch as the father was held to the burden of proof. “It is well established that it is the plaintiff [or the petitioner] who bears the ultimate burden of proving by preponderating evidence that jurisdiction over the defendant [or the respondent] was obtained” (Powell v Powell, 114 AD2d 443, 444). Here, the mother had the burden of proving that jurisdiction was obtained over the father since she commenced the proceeding. Since the Support Magistrate incorrectly applied a standard in weighing the evidence, a new hearing must be held (see Lexington Ins. Co. v. Schuyler Bumpers, 125 AD2d 554, 555; Powell v. Powell, 114 AD2d at 444).

 

Family Court’s decision on custody is supported by a sound and substantial basis in the record, Appellate Division noted concern regarding the prolonged length of the proceedings
Matter of Lopez v. Noreiga, 2018-14252
The subject child was born in Georgia in September, 2009. In December, 2010, the mother moved with the child to New York, and the father remained in Georgia. In 2011, both parties petitioned for sole custody of the child. Following the hearing, which took place in 9 days over a period of approximately 1 ¾ years, and an in camera interview with the child (who was approximately nine years old at the time), the Family Court awarded the parties joint legal custody, with sole physical custody and final decision-making authority to the mother, and parental access to the father. The father appealed.

The Second Department found that the Family Court’s determination is supported by a sound and substantial basis in the record and must not be disturbed. While both parties are fit parents, the child has been residing with the mother for the majority of his life; the child expressed a desire to continue residing with his mother; and the child’s younger half-sister, with whom the child has a close relationship, also resides with the mother. “Courts will not disrupt sibling relationships unless there is an overwhelming need to do so.” (Matter of Shannon J. v. Aaron P., 111 AD3d 829, 831, citing Eschbach v. Eschbach, 56 NY2d at 173).

The Appellate Division also agrees with the trial court’s determination to include a provision in the order requiring the mother to first consult with the father with respect to all major issues concerning the child prior to exercising her final decision-making authority (cf. Prohaszka v. Prohaska, 103 AD3d at 617). This provided a “balance between the need for stability in the child’s daily life and the father’s concern that he would be excluded from participating in the child’s upbringing.” However, the Second Department agrees with the father that he should have been permitted to begin his weekend parental access by picking the child up from school, which is consistent with the terms of the most recent temporary orders of parental access. This modification would “serve the best interests of the child by fostering the father’s continued involvement in the child’s schooling and maximizing the amount of parenting time between the father and the child (see generally Matter of Yegnukian v. Kogan, 179 AD3d 1085; Matter of Sanders v. Ballek, 136 AD3d 676, 677-678).

Lastly, the Second Department noted a concern regarding the lengthy period of time that elapsed between the commencement of the custody hearing and its conclusion, and the additional 2 months that elapsed before the Family Court reached its determination.

 

Supreme Court order which required father to comply with the cultural norms of Hasidic Judaism during this parenting time is unconstitutional
Cohen v. Cohen, 2019-02398
In a post-judgment matrimonial proceeding, the father appeals from an Order which, in effect, modified the parties’ Judgment of Divorce to direct him to comply with the cultural norms of Hasidic Judaism during his periods of parental access with the children.

The parties were divorced by a judgment of divorce, made after a nonjury trial, which awarded the mother custody, with parental access to the father, and directed the father to provide the children with exclusively kosher food and to make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the mother and the children’s schools as they were raised while the children are in his physical custody.” The trial court also noted that it was not mandating any specific mode of dress or religious practices for the father during his parental access.

On a prior appeal, the Appellate Division upheld the religious upbringing provision (see Cohen v. Cohen, 177 AD3d 848). Rejecting the father’s argument that the religious provision was unconstitutional, the Appellate Division distinguished Weisberger v. Weisberger (154 AD3d 41). In Weisberger, “the Supreme Court had run afoul of constitutional limitations by compelling the mother to herself practice a religion, rather than merely directing her to provide her children with a religious upbringing” (Cohen v. Cohen, 177 AD3d at 852). Here too, the father was only directed to make reasonable efforts to ensure the children’s compliance with their religion. (id. at 852-853).

While the prior appeal was pending, the father moved in the Supreme Court for certain relief, and the mother cross-moved, in effect, to modify the judgment of divorce so as to direct the father, during his parental access, to comply with the cultural norms of Hasidic Judaism. During the hearing, the mother conceded that the father did not prevent the children from practicing their religion. However, the mother argued that the father had failed to himself comply with Hasidic religious requirements during his parental access periods with the children. After the hearing, the court, among other things, purported to enforce the religious upbringing provision of the judgment by directing that, during his parental access, the father “should conduct himself in accordance with the cultural norms” of Hasidic Judaism. The father appealed.

The Order is reversed. Under the appellate court’s decisions in Weisberger and on the prior appeal, the court’s directive that the father himself abide by these religious practices was an unconstitutional modification of the religious upbringing provision in the judgment of divorce.