February 19, 2020 Decisions

Father’s consent to adoption of child born out of wedlock not required; Father failed to maintain regular visitation or communication with the child
Matter of G. (Anonymous), L., 2019-01888
In an adoption proceeding, the father appealed from an order which confirmed the report of a Judicial Hearing Officer, made after a hearing, and determined that the father’s consent to the adoption of the subject child was not required pursuant to Domestic Relations Law § 111(1)(d).

“A father’s consent to the adoption of a child over six months old who was born out of wedlock will be required if the father establishes that he has maintained substantial and continuous or repeated contact with the child as manifested by the payment of reasonable child support and either monthly visitation or regular communication with the child (see Domestic Relations Law § 111[1][d]; Matter of Madelyn [Robert K.], 174 AD3d 715; Matter of Angela H.F. [Shombe M.], 155 AD3d 624, 625). Here, the petitioners are the subject child’s maternal grandparents and legal custodians who had begun caring for the child shortly after his birth.

In the maternal grandparents’ petition to adopt the child, they alleged that the father’s consent to the adoption was not required. On appeal, the Second Department found that the Family Court properly determined that the father’s consent to the adoption was not required (see Domestic Relations Law § 111[1][d]; Matter of Madelyn [Robert K.], 174 AD3d at 716; Matter of Mikai R. [Ralph R.], 166 AD3d at 624-625). Although he paid reasonable child support, the father inexcusably failed to maintain regular visitation or communication with the child (see Domestic Relations Law § 111[1][d][ii],[iii]; Matter of Madelyn [Robert K.], 174 AD3d at 716; Matter of Angela H.F. [Shombe M.], 155 AD3d at 625).

 

Family Court dismissal of family offense petition hinged on issues of credibility and is supported by the record; Family Court did not err is refusing to adjourn for a rebuttal witness
Matter of Joseph v. Joseph, 2019-02576
The petitioner appeals from an order of the Family Court, made after a fact-finding hearing, which denied the family offense petition she filed against her brother alleging, among other things, disorderly conduct and harassment in the second degree

Petitioner has the burden of establishing the offense by a fair preponderance of the evidence (see Family Ct Act § 832; Matter of Grouzis v. Grouzis, 176 AD3d 936, 936-937; Matter of Estime v. Civil, 168 AD3d 936, 937; Matter of McGregor v. Ferguson, 167 AD3d 897, 897; Matter of Lopez de Salmon v. Salmon, 150 AD3d 1121, 1122).

Where, as here, “a hearing court ‘was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony’ of one party over that of the other, its determination [should] not be disturbed” unless clearly unsupported by the record (Matter of Henderson v Henderson, 137 AD3d 911, 912, quoting Matter of Musheyev v Musheyev, 126 AD3d 800, 801; see Matter of Grouzis v Grouzis, 176 AD3d at 937; Matter of Diaz v Rodriguez, 164 AD3d 1340; Matter of Davis v Felder, 140 AD3d 752, 753; Matter
of Saldivar v Cabrera, 109 AD3d 831, 832).

The Family Court’s determination hinged on issues of credibility and is supported by the record. Further, the Family Court did not err in denying the petitioner’s request to adjourn the fact-finding hearing to allow her son to testify as a rebuttal witness (see Matter of Anthony M., 63 NY2d 270, 283).

 

Family Court propertly granted Father’s petition to register Canadian custody order
Matter of Pava v. Atkinson, 2019-01512
The mother appealed from an order of the Family Court, Kings County, which after a hearing, denied the mother’s objections and granted the father’s petition to register in the Family Court, Kings County, an order of the Ontario Court of Justice, Ontario, Canada, which awarded sole custody of the parties’ minor child to the father.

Pursuant to Domestic Relations Law § 77-d, a party seeking to challenge the validity of a registered order must “request a hearing within twenty days after service of the notice (Domestic Relations Law § 77-d[4]).” At the hearing, the court shall confirm the registered order unless the person seeking to contest the validity of the registration establishes that “(a) the issuing court did not have jurisdiction, (b) the custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so, or (c) the person contesting registration was entitled to, but was not given, notice in the underlying proceedings before the court that issued the order for which registration is sought (Domestic Relations Law § 77-d[4]; see Matter of Worsoff v. Worsoff, 161 AD3d at 881).

On this appeal, the mother’s contention that the Family Court should have granted her objections because she did not receive notice of the underlying proceeding is without merit because “neither her hearing testimony, nor the evidence she submitted at the hearing, established that she was not given notice of the underlying proceeding in Ontario.” The order is affirmed.

 

Family Court properly denied mother’s petition to suspend father’s parental access, which alleged emotional abuse, notwithstanding contentions of attorney for child
Matter of Legall v. Belle, 2019-01235; Matter of Belle v. Legall, 2019-01236

The mother appealed from an order denying her petition to modify the parental access provisions of a custody and parental access order, and an order dismissing the mother’s petition.

The parties have joint legal custody of the subject child, with physical custody to the mother, and parental access to the father. In August 2016, the mother filed a petition seeking to suspend the father’s parental access on the basis that he and the subject child’s stepmother were emotionally abusive towards the subject child. The Family Court denied the petition on the basis that the mother failed to demonstrate a change in circumstances sufficient to merit a suspension of the father’s parental access with the child.

The hearing court’s findings are generally accorded great deference since it assesses the credibility of the witnesses and the character, temperament, and sincerity of the parties (Matter of Lamarche v. Rooks, 142 AD3d at 708). Contrary to the contentions of both the mother and the attorney for the child, the Second Department found that the Family Court’s determination that the mother failed to show that there was a change in circumstances warranting a modification of the father’s parental access is supported by a sound and substantial basis in the record and will not be disturbed (see Matter of Dokmeci v. Herbert, 167 AD3d at 878; Matter of Lamarche v. Rooks, 142 AD3d at 708).

 

In divorce action, Order granting subpoena to parties’ prior estate attorney modified due to attorney-client privilege
Feighan v. Feighan, 2019-01177
In an action for divorce, the defendant appeals from an Order which granted a subpoena to Eugenia M. Vecchio, Esq., whom the parties had previously retained to create estate planning documents, including the 2013 Robert E. Feighan Revocable Trust. Prior to the commencement of the divorce action, in 2016, the defendant retained Vecchio to create the 2016 Robert E. Feighan Revocable Trust, which was funded by assets previously held in the 2013 trust.

The defendant opposed the subpoena for both the 2013 and 2016 records on the grounds of attorney-client privilege. The Second Department modified the Order, denying that branch of the motion which sought a subpoena for documents relating to the 2016 Trust, and as so modified, affirmed the Order with regard to the 2013 Trust.

“Generally, when an attorney represents two or more parties with respect to the same matter, the attorney-client privilege may not be invoked to protect confidential communications concerning the joint matter in subsequent adverse proceedings between the clients (see Tekni-Plex, Inc. v. Meyner & Landis, 89 NY2d 123, 137; Wallace v. Wallace, 216 NY 28, 35; Matter of McCormick, 287 AD2d 457, 457).”

Vecchio’s joint representation of the parties in 2013 constituted representation with respect to the same matter, such that the attorney-client privilege could not be invoked to protect the communications concerning Vecchio’s representation of the parties with regard to the defendant’s 2013 revocable trust (see Tekni-Plex, Inc. v. Meyner & Landis, 89 NY2d at 137; Wallace v. Wallace, 216 NY at 35; Matter of McCormick, 287 AD2d at 457-458). However, the court should have invoked the attorney-client privilege to protect confidential communications concerning Vecchio’s representation of the defendant relating to the 2016 revocable trust because his representation of the plaintiff ended in 2013 and the services provided in 2016 were not arising out of the same matter as the services rendered to the parties in 2013.