January 8, 2020 Decisions

January 13, 2020
By PetroskeLaw

Father Barred from Equitable Estoppel Defense to Paternity of 17 Year Old
Matter of R.-D. (Anonymous) v. P. (Anonymous), 2018-13792, 2018-13793

The Family Court dismissed the mother’s petition for paternity and application for a genetic marker test on the grounds of equitable estoppel. The mother appealed, and the Second Department reversed and reinstated the petition.

The mother commenced a proceeding to adjudicate Julio R.P., the putative father, the father of the subject child. The mother had an intimate relationship with the putative father at the time the child was conceived, he was present at the hospital shortly after the child’s birth, and attended the child’s baptism. Contact between the child and the putative father ceased after the child reached nine months old. The mother married Hector R. approximately four years after the child’s birth. Julio R.P. moved to dismiss the instant petition on the basis of equitable estoppel. The court granted the application, after a hearing, finding that the mother and child were estopped from asserting paternity because the father did not maintain a relationship with the then 17-year-old child and the child had been in a long term parent-child relationship with the mother’s husband instead.

The Second Department disagreed, noting ““[W]hether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interests of the child” (Matter of Juanita A. v Kenneth Mark N., 15 NY3d at 6). Here, the record portrays that the child was told at a young age that the putative father was his biological father, and the putative father failed to establish that the child would suffer “irreparable loss of status, destruction of his family image, or other harm to his physical or emotional well-being if a genetic marker test was ordered (see Matter of Derrick H. v. Martha J., 82 AD3d 1236, 1239).


Court Improperly Ordered Both Incarceration and Probation for Child Support Violation
Matter of Lopez v. Wessin, 2019-02836

Following a hearing, the Support Magistrate issued an order of disposition finding that the father willfully failed to pay his child support obligation. The Family Court issued three orders: (1) confirming the Support Magistrate’s order; (2) an order committing the father to a term of incarceration of 90 days unless he paid a purge amount; and (3) an order directing that the father be placed on probation for a period of five years. The father appealed from the probation order. While the father failed to preserve his challenge to the legality of his sentence, Family Court Act § 454 provides that the Family Court may impose either probation or a term of incarceration upon a finding of willful violation of a support order, but not both (see Matter of Powers v. Powers, 86 NY2d 63, 70-71; Family Court Act § 454[3]). Thus, since the father completed his term of incarceration, that portion of his sentence imposing probation must be vacated (see Matter of Heffner v. Jaskowiak, 132 AD3d at 1418).


Maintenance Obligation Terminated and Arrears Vacated Due to Verbal Waiver
Matter of Makris v. Makris, 2019-01483

The respondent commenced a Family Court proceeding to enforce the child support and maintenance obligations set forth in the parties’ judgment of divorce. The appellant subsequently filed a petition seeking to terminate his maintenance obligation, contending that the parties orally agreed to terminate his obligation, that he ceased payment to the respondent in reliance upon that agreement, and that the respondent ratified the parties’ oral agreement by failing to demand maintenance payments for more than sixteen years.

The Support Magistrate did not find the respondent’s testimony to be credible and terminated the appellant’s maintenance obligation retroactive to October 2017. The Support Magistrate advised that she was “without authority to vacate arrears accrued prior to the date of filing.” The Support Magistrate granted the respondent’s petition to the extent of directing the appellant to pay $53,312 to the respondent in arrears. The appellant objected and the Family Court denied the objections.

Although a court has no discretion to reduce or cancel arrears of child support that accrue before an application for a downward modification of the child support obligation (see Gorman v Gorman, 165 AD3d 1067, 1072; Matter of Gardner v Maddine, 112 AD3d 926, 927), pursuant to Domestic Relations Law §236(B)(9)(b), a prior judgment or order as to maintenance maybe modified or annulled after the accrual of such arrears where “the defaulting party shows good cause for failure to make an application for relief from the judgment or order directing payment prior to the accrual of such arrears” (LiGreci v LiGreci, 87AD3d 722, 726). Under the circumstances of this case, the Court found find that the appellant made an adequate showing of good cause for failing to move for relief from the judgment of divorce until after the respondent commenced this proceeding to enforce the appellant’s maintenance obligation under the judgment (Fosina v Fosina, 128 AD3d 891,893). The respondent’s conduct thus demonstrated her intent to abandon her right to maintenance payments and supported the alleged oral agreement amongst the parties (see Laurence v. Rosen, 228 AD2d 373, 375; Shickler v. Shickler, 97 AD2d 461, 461). Therefore, the Family Court should have granted the appellant’s objections to the Support Magistrate’s order.


Relocation is a Factor in Initial Custody Determination
Matter of Lawrence v. Mattry, 2019-02068

The parties, who were never married, are the parents of a child. The mother moved from New York to Georgia with the child in May 2018 without the father’s consent. The father petitioned for sole custody of the child and the mother subsequently filed a petition for sole custody and for permission to relocate with the child to Georgia.

The court directed the mother to return the child to New York to reside with the father while the proceedings were pending. Following a hearing, the Family Court awarded the parties joint legal custody of the child with physical custody to the father. The mother appealed.
The Appellate Division held relocation is only one factor that the Family Court must consider in a petition seeking an initial custody determination, and that it was in the best interests of the child for the Family Court to award the parties joint legal custody of the child with physical custody to the father.


Petition Dismissed for Lack of Temporary Emergency Jurisdiction (UCCJEA)
Matter of Baptiste v. Baptiste, 2019-03087

The father sought to modify the custody provisions of an out-of-state custody decree so as to award him sole custody of the subject children and claimed that the court could exercise temporary emergency jurisdiction pursuant to Domestic Relations Law § 76-c. The Family Court, Kings County, after communicating with a court in Georgia, where the children had recently resided, dismissed the petitions for lack of jurisdiction. The father appealed. In order for a New York court to exercise temporary emergency jurisdiction, there must be an emergency that is real and immediate, and “of such a nature as to require state intervention to protect the children from imminent physical or emotional danger” (Matter of Bridget Y. [Kenneth M.Y.], 92 AD3d 77, 87, quoting Matter of Severio P. v. Donald Y., 128 Misc 2d 539, 542; see Matter of Michael P. v. Diana G., 156 AD2d 59, 66). There was found to be no emergency in this case, and therefore, the Appellate Division agrees with the court’s determination to dismiss the petitions for lack of jurisdiction.


Forensic Investigation Not Needed Where Court Has Sufficient Information to Determine Best Interests of the Child
Greim v. Greim, 2018-13361

The divorced parties, in a so-ordered custody stipulation, agreed to share joint custody of their child, with primary residential custody to the defendant. The plaintiff subsequently moved to modify the stipulation so as to award him sole custody of the child. After a hearing, the Supreme Court granted that branch of the plaintiff’s motion to the extent of awarding him residential custody of the child. The court also directed the defendant to pay temporary child support until a final order of child support was entered. The defendant appealed. The Appellate Division found that it was in the best interests of the child to transfer residential custody to the plaintiff as there had been a change in circumstances. Further, the Supreme Court providently exercised its discretion in directing the defendant to pay temporary child support.

Additionally, under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in declining to direct an independent forensic evaluation, as the court possessed sufficient information to render an informed decision regarding custody consistent with the child’s best interests (see Matter of Jones v Nohar, 108 AD3d 631, 632; Matter of Solovay v Solovay, 94 AD3d 898, 900; Matter of Rhodie v Nathan, 67 AD3d 687).


Though Child Lacks a “Home State” under UCCJEA, New York Can Exercise Jurisdiction Given Significant Connection and Substantial Evidence in the State
Matter of Defrank v. Wolf, 2019-02645

The subject child, born in 2015, lived with both parents in Pennsylvania for the first two years of his life. In November 2017, the child began residing with his maternal great grandmother in New York. The mother later moved to New York to live with the child and the great grandmother in January 2018. In June 2018, the mother filed a petition in the Family Court, Nassau County, for custody of the child. The father subsequently filed a petition for custody in Pennsylvania. The Family Court, after a hearing, dismissed the mother’s petition for lack of jurisdiction. The mother appealed.

Although the child was living in New York for six consecutive months prior to the commencement of this action, he was not living with a parent in the state for that period, which is required pursuant to Domestic Relations Law § 76[1][a]. The maternal grandmother cannot be titled a “person acting as a parent,” because she had not been awarded legal custody of the child by a court and did not claim a right to legal custody (Domestic Relations Law § 75-a[13]; see Matter of Breselor v. Arciniega, 123 AD3d 1413, 1415).

However, the Family Court improperly determined that Pennsylvania had jurisdiction over the matter. Pennsylvania could not be considered the home state of the child because the child had been living in New York for more than six months prior to the commencement of the proceeding (see Domestic Relations Law § 76[1][a]; Matter of Hollander v. Weissberg, 147 AD3d 831, 833). Since the child did not have a home state at the time of commencement, New York could exercise jurisdiction if “(i) the child…and at least one parent…have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationship” (Domestic Relations Law § 76[1][b]; see Matter of Breselor v. Arciniega, 123 AD3d at 1415; Matter of Destiny EE. [Karen FF.], 90 AD3d 1437).

The Appellate Division found that New York has jurisdiction to make an initial custody determination in this matter because of the child and mother’s significant connection with the state as well as substantial evidence in this state, given that the the child is enrolled in school and is seen by a pediatrician in New York (see Matter of Breselor v. Arciniega, 123 AD3d at 1415). The Order was reversed and remitted to the Family Court in Nassau County for further proceedings on the petition.


Custody of Twins to Father and Supervised Access to Mother Support by the Record
Matter of Lopez v. Prudencio, 2017-06126

The parties, who were never married, are parents to twins born in June 2013. In July 2013, the father filed a petition for sole legal and residential custody of the children, who had been residing with him since birth. Following multiple temporary orders, the children remained in the custody of the father and the mother had supervised parental access with the children. After a hearing, the Family Court granted the father’s petition and awarded the mother supervised parental access. The mother appealed. Here, the Appellate Division will not disturb the Family Court’s determination to award sole custody of the children to the father because it was consistent with the opinion of the court-appointed forensic psychologist and was supported in the record (see Eschbach v. Eschbach, 56 NY2d at 171-172; Matter of Vaysman v. Conroy, 165 AD3d at 955; Matter of Stokes v. Stokes, 154 AD3d 952, 953; Matter of Yearwood v. Yearwood, 90 AD3d 771, 774). Further, the Family Court’s determination to award the mother supervised parental access was in the best interests of the child, and therefore, will not be disturbed.


Paternity Petition Dismissed on Child’s Application Due to Equitable Estoppel and Presumption of Legitimacy
Matter of G. (Anonymous) v. A. (Anonymous), 2019-06132; 2019-06133

The petitioner commenced a proceeding against the mother to establish his paternity with respect to the subject child. The child was born during the mother’s marriage to Charles A. The child moved to dismiss the petition on the ground of equitable estoppel. The Family Court, after a hearing, granted the child’s motion, finding that the presumption of legitimacy had not been overcome and that “it was in the child’s best interest to equitably estop the petitioner from asserting paternity.” The petitioner appealed. The petitioner failed to rebut the presumption of legitimacy by clear and convincing evidence. Evidence portrayed that the husband was listed as the father on the child’s birth certificate, and testimony of multiple witnesses conflicted as to whether the mother and the husband had intimate relations during the time period in which the child was conceived (see Matter of Ariel G. v. Greysy C., 133 AD3d 749, 751; Matter of Barbara S. v. Michael I., 24 AD3d at 453).

The Appellate Division agrees with the Family Court’s determination that the petitioner was equitably estopped from asserting paternity of the child. The husband was at the hospital on the day the child was born, lived with the child since her birth, contributed to her development, and maintained a loving father-daughter relationship with her (see Matter of Carlos O. v. Maria G., 149 AD3d 945, 946; Matter of Felix O. v. Janette M., 89 AD3d at 1091; cf. Matter of Ramos v. Broderek, 166 AD3d 783, 784). The evidence shows that the petitioner did not establish a bond with the child. Therefore, the orders are affirmed.


Appellant’s Counsel Failed to Provide Meaningful Representation on Child Support Violation, New Hearing Ordered
Matter of Miller v. DiPalma, 2019-04262

The father appealed from an order of commitment which confirmed an order finding that the father willfully violated a prior order of child support, and committed him to the custody of the Orange County Jail for a term of three months unless he paid the specific purge amount. The appeal from so much of the order of commitment as committed the father to the custody of jail must be dismissed as academic because the incarceration period has expired. However, the Appellate Division agrees with the father that he was deprived of the effective assistance of counsel at a hearing on the mother’s petition for violation of a child support order. At the hearing, the father claimed he was unable to continue to work as a mail carrier because of a back injury. While the father’s counsel was advised to provide a financial disclosure affidavit, tax forms, proof that he was actively searching for employment, and certified medical records, his counsel failed to procure those relevant documents. Further, the father’s counsel failed to call any witnesses to testify in regards to the father’s injury, subpoena his treating physician, or obtain a medical affidavit. The father is therefore entitled to a new hearing on the violation petition because the father’s counselor failed to meaningfully represent him (Matter of Nassau County Dept. of Social Servs. V. King, 149 AD3d 942, 944; Matter of Albert v. Terpening, 128 AD3d 1133, 1135).