Archive for February, 2012

Violation Petition Must Be Sufficiently Specific to Provide Notice of Alleged Violation

Saturday, February 4th, 2012

In Miller v Miller, 90 A.D.3d 1185 (N.Y.A.D. 3 Dept.) the parties were the parents of two children, born in 2004 and 2005. A custody order entered in March 2008 granted sole legal custody to mother with visitation to father as agreed between the parties. The order, among other provisions, required that the children be properly supervised at all times, and that neither parent smoke or permit a third party to smoke in a vehicle in which the children are passengers.

In June 2010, the father filed a violation petition alleging that the mother was in contempt of this order by failing to properly supervise and discipline the children, since she had permitted the older child to be violent towards others and to smoke. Finding that the petition lacked sufficient specificity to provide the mother with proper notice and failed to outline how the father’s rights had been prejudiced, Family Court dismissed the petition without a hearing, but ordered a child neglect investigation by the local Department of Social Services.

The Appellate Division held that the petition was subject to the requirements of CPLR §3013, and it was required to “be sufficiently particular” as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action. Since petition only included generalized allegations of the petition, even liberally construed, it had failed to provide the mother with notice of a particular event or violation such that she could prepare a defense.

Further, according to the Appellate Division, the father failed to assert how the mother’s alleged failings defeated, impaired, impeded or prejudiced his rights, as required to warrant a civil contempt finding. While Family Court ordered an investigation to determine whether a neglect or abuse proceeding should be initiated, the investigation did not fix the defects in the father’s petition. Accordingly, the appellate court concluded that the trial court properly dismissed the petition without a hearing.

The rule for sufficiency of petitions is simple: a party must alleging facts with sufficient particularity so that notice of events and elements of legal issues is given to the opposing party and the court. If petition is insufficient, it will be dismissed.  Alternatively, the court may give a party an opportunity to amend the petition.