Expanding Definition of What It Means to Be a Parent

The New York State Court of Appeals ruled last week in Brooke S.B. v Elizabeth A.C.C., 2016 N.Y. Slip. Op. 05903, that a loving caretaker who is not related to, or the adoptive guardian of, a child could still be permitted to ask for custody and visitation rights.

The ruling came from a litigation between a couple, known in family court papers only as Brooke S.B. and Elizabeth A. C.C. In 2008, Elizabeth became pregnant with the couple’s child through artificial insemination. Though Brooke had no legal or biological ties to the child, a boy, she maintained a close relationship with him for years, cutting his umbilical cord at birth, giving him her last name and raising him jointly with Elizabeth. In 2013, after their relationship ended, Elizabeth tried to cut off Brooke’s contact with the boy. Brooke sued for custody and visitation privileges, but was turned down by a lower court, which found that legal precedent pursuant to Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), did not define a non-adoptive, non-biological caretaker as a parent.

In its ruling, the Court of Appeals overturned Alison D., stating that “the definition of ‘parent’ established by this court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships.” It further held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody.”

While Brooke S.B. seems to be applicable primarily to same sex couples, it is easy to see that the same type of argument may be applicable to heterosexual couples in situations where one partner is artificially inseminated.  The Court of Appeals declined to state what the proper test should be in cases where no preconception agreement can be shown to have existed between nonbiological couple. As far as the proof of the parties’ intent, the courts are likely to look at the parties’ participation such activities as birthing classes, partners’ inclusion on birth notices and other traditional indications of the existence of a pre-conception agreement between a couple.

Final Custody Determination Requires a Plenary Hearing

A mother who lost custody of her children after she broke windows at their father’s house and set fire to his clothes in the driveway should have received an evidentiary hearing, the Court of Appeals has ruled in S.L. v. J.R., 2016 N.Y. Slip. Op. 04442 (2016).  According to the filings, the mother, identified as S.L., and the father, identified as J.R., were married in 1997 and had two kids together.

In September 2012, after 15 years of marriage, S.L. filed for divorce from J.R., and sought full custody of the children. Also that month, she texted J.R.—who had moved out of the family’s house several months prior—that she would burn down the house and set his clothes on fire.

J.R. arrived at the house to find his clothes burnt in the driveway and windows at the house smashed out.  He filed for temporary sole custody of the children, alleging that he feared for their safety because of incidents involving harassment by S.L. and that she also had extramarital affairs and abused alcohol and drugs.

S.L. admitted to setting fire to J.R.’s wardrobe and her involvement in several other incidents, including a past charge of aggravated assault. In October 2012, the trial ruled that there were “enough red flags” to justify granting temporary sole custody of the children to J.R. In April 2013, S.L.’s visitation was suspended after a therapist determined that it would not be in the best interest of the children to allow visitation to continue until she entered anger management therapy.

A few months later, the trial court granted sole custody to J.R. without having a hearing, writing that a hearing was not necessary because the “allegations are not controverted” and that S.L. was being charged in three pending cases in the Integrated Domestic Violence part. In two of the cases, the judge said, S.L. was charged with breaking orders of protection prohibiting her from contacting J.R. or the children.

S.L. appealed trial court’s ruling, but in 2015, the Appellate Division, Second Department affirmed the lower court in S.L. v. J.R., 126 A.D.3d 682 (2nd Dept. 2015), writing that, while custody decisions are generally only made following a comprehensive evidentiary hearing, no hearing is necessary when the court “possesses adequate relevant information to enable it to make an informed and provident decision as to the child’s best interest,” citing its 2004 ruling in Matter of Hom v. Zullo, 6 A.D3.d 536 (2nd Dept. 2004).

But, on June 9, the Court of Appeals unanimously reversed the Second Department’s decision. The Court wrote that while there should be no “one size fits all” rule mandating a hearing in every custody case, custody decisions should generally be made after a full and plenary hearing. In the case of S.L., there were facts relevant to the best interest analysis that were still in dispute, and the trial court appeared to base its decision on hearsay and on the statements of a forensic investigation whose credibility was not questioned by either party.

While the mother was successful in reversing the trial court’s determination, ultimately, I do not believe that it will make a difference when the case is tried. Given the conduct at issue, it is unlikely that the parties will be able to have a joint custodial arrangement.

Validity and Finality of Custody Stipulations

Many custody cases are resolved by agreement. When this happens, the parties often place their agreement on the record, either as an oral stipulation recorded by court stenographer or reduce it to a written agreement. Sometimes, immediately after or some time later on, a party to the stipulation may change his mind and ask that the court vacate the stipulation.

In Jon v. Jon, 2015 N.Y. Slip. Op. 51118(U) (Sup. Ct. Nassau Co. 2015), the plaintiff, immediately after entering into a written settlement stipulation, regretted her decision and changed her mind and attempted to have the stipulation vacated. Plaintiff argued that since she was not represented by counsel, that her agreement was not knowing and voluntary, and it came as a result of overreaching by defendant or undue pressure placed on her.

The court heard testimony of the parties determined that although wife was not represented by counsel, the absence of independent legal representation, without more, did not establish overreaching or require nullification of an agreement. She had the opportunity in just a few hours to negotiate with defendant’s counsel in the presence and with the assistance of a court mediator. She decided to pass on that opportunity.

Furthermore, plaintiff was not significantly disadvantaged by the lack of counsel because she could have obtained equal parenting time with her children if she had only agreed to it. She declined because she did not want the children shuttling between their parents. If defendant was not going to agree to let plaintiff have custody of the children—and he wasn’t—she decided to do what in her opinion was the next best thing: let the children stay with defendant. And she did not identify a single thing she wanted in the stipulation that was not included. Given that the stipulation was drafted and signed in “neutral territory”—the courthouse within earshot of the judge—and since the attorney for the children was present throughout, the absence of an attorney did not render the stipulation unfairly made.

The court concluded that neither the terms of the stipulation nor the circumstances surrounding its execution evidence overreaching on the part of defendant. As a result, the court held that it may “not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident” or imprudent. Christian v. Christian, 42 N.Y.2d 63, 72 (1977).

The key finding that the court made was the following:

This court does believe plaintiff in one important respect: she freely and fairly made a decision and executed an agreement that she very quickly regretted and desired to change. But there is no statute or case that affords a contracting party the opportunity to change their mind, regardless of how quickly they desire to do so, in the circumstances presented here. This court sees the wisdom in affording to an unrepresented party the opportunity within a short window the absolute right to rescind a custody agreement. That would be plaintiff’s only salvation when faithfully applying the current statutory and common law to the facts in this matter.

Stipulations are meant to bring resolution and finality to the parties. They should not be taken lightly and should be thoroughly understood before being finalized.

Surrogacy and Adoption

One area where New York still lags behind other states has to do with surrogacy contracts. New York does not recognize surrogacy contracts statutorily since it deems the underlying surrogacy contracts to be against public policy, and they are void and unenforceable in New York. See N.Y. Dom. Rel. L. § 122. However, what happens to a child born as a result of such contract?

In a recent decision, Matter of J.J., 2014 N.Y. Slip. Op. 24089 (Fam. Ct. Queens Co. 2014), New York Family Court held that a child born as a result of a surrogacy contract can be adopted in the State of New York, notwithstanding the fact that such contract would be void and unenforceable.  In that decision, Judge Salinitro held that a man may legally adopt his husband’s biological twins even though they were born to a woman under a surrogacy agreement that is illegal in New York State. According to the court, the best interests of the twins is the most important consideration in weighing the adoption petition, not the surrogacy agreement that resulted in their birth. According to the decision, a home study provided to the court showed that the children are thriving in the care of the parents.

Thus, the court stated that it is not being asked to enforce the surrogacy contract that forms the basis for the adoption, nor does the relief sought include claims relating to the surrogacy agreement itself. Rather, the case involved proposed adoptive parent who wanted to have equivalent legal status as the birth parent, and is prepared to assume the rights and responsibilities that accompany legal parentage.

Therefore, the surrogacy agreement with the woman who bore the children in Mumbai, India, in 2013 was of no consequence to the adoption. The court specifically found that “where a surrogacy contract exists and an adoption has been filed to establish legal parentage, such surrogacy contract does not foreclose an adoption from proceeding”.

Section 122 of Domestic Relations Law declares that “surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable”. The judge said she found a “paucity” of previous rulings in New York on surrogacy and none directly focused on surrogacy contracts in the adoption context. Accordingly, she called the issue before her an apparent question of first impression in New York courts.

I think that the judge made the right decision. Given that the law does not always keep up with changes in medical technology and society, the courts have to step in and address these types of issues.

Mother Ordered to Stop Posting About Her Children on Facebook

As social media continues to permeate every aspect of our lives, there is a continuing controversy about parents should post information about their children on social media sites. The controversy is grounded in both safety concerts, as well as concerns that children, who have not consented to having this information shared with the world, may suffer an invasion of their privacy or emotional harm.   A recent decision demonstrates how these issues can be addressed by the courts in New York.

In Melody M. v Robert M., 103 A.D.3d 932 (3rd Dept. 2013), the Third Department affirmed a Family Court order that among other changes to the prior joint custody, issued an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social network site. From the decision, it appears that while the parties initially had a joint custodial arrangement, that arrangement broke down primarily due to the mother’s pattern of inappropriate behavior and its effect on the parties’ oldest child, who had mental health issues. The mother did not participate in the child’s counseling because she did not like the therapist, or follow therapist’s  recommendation with respect to household routines. The mother also testified that she frequently called the father for him to take the oldest child away during her parenting time because she could not deal with his behavior. The mother admitted that she swore and yelled at the oldest child, and often resorted to physical means to deal with him.

In addition, the court quoted some of the mother’s testimony which was astounding:

[mother] utilized Facebook to insult and demean the child, who was then 10 years old, by, among other things, calling him an “asshole.” She testified without remorse that she did so because that is what “[h]e is,” and she thought it was important for her Facebook friends to know this. Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child.

As a result of the mother’s use of physical force and disparagement of the oldest child on Facebook, the father had filed a violation petition. Since there was sufficient evidence regarding the mother’s inappropriate use of the Internet to demean and disparage the oldest child, as well as her lack of remorse or insight into the inappropriateness of such behavior, the Appellate Division held that the lower court was justified in issuing an order of protection.

It is clear that the mother’s behavior was clearly inappropriate and that the court was justified in protecting the child. Just like with anything else involving the children, if you want to maintain custody of your children in the age of social media, it is best not to disparage them on Facebook.

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

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.

Need to Preserve Relationship with Parent Does Not Take Precedence Over Economic Factors in Relocation Cases

In Butler v Hess, 85 A.D.3d 1689 (4th Dept. 2011), petitioner father filed a petition seeking to modify the parties’ existing joint custodial arrangement. Specifically, respondent mother had primary physical residence and the father had visitation. The father sought to prevent the mother from relocating with the child to Pennsylvania and sought sole custody of the child.

The mother filed a cross petition seeking permission for the child to relocate with her to Pennsylvania. The trial court denied mother’s application and prohibited her from relocating to Pennsylvania. The Appellate Division agreed with mother’s contentions that Family Court erred in denying her cross petition.

The Appellate Division found that the record established that, pursuant to the existing arrangement, the father had regularly scheduled visitation with the child. The mother remarried in December 2003, when the child was six years old, and the mother and the child began living with the mother’s husband at that time. In December 2006, the mother lost her job as a result of budget cutbacks and, in July 2007, the mother’s husband lost his job after his position was eliminated. The mother’s husband accepted a job in Pennsylvania in October 2007, which was the basis for the mother’s cross petition seeking permission to relocate with the child to Pennsylvania to join her husband. The Court concluded that the mother established by the requisite preponderance of the evidence that the proposed relocation would serve the child’s best interests”. Tropea v. Tropea, 87 N.Y.2d 727, 741 (1996). The Court of Appeals in Tropea held that economic necessity may present a particularly persuasive ground for permitting the proposed move. According to the Appellate Division, the record reflected that the trial court did not adequately, if at all, consider the financial considerations underlying the requested relocation. The mother requested permission to relocate because she and her husband lost their jobs within a relatively short period of time. The mother’s husband testified that both his health insurance, which also covered the mother and the child, and his severance pay ran out in August 2007. After the mother’s husband lost his job, he and the mother depleted their savings and their house was placed into foreclosure. The mother and her husband testified that they unsuccessfully attempted to locate jobs in Western New York and that the mother’s husband accepted the job in Pennsylvania out of financial necessity.

The trial court based its determination primarily on its conclusion that the relocation would “qualitatively affect” the child’s relationship with the father. The Appellate Division held that this was erroneous because the need to give appropriate weight to the feasibility of preserving the relationship between the parent without primary physical custody and [the child through suitable visitation arrangements does not take precedence over the need to give appropriate weight to the economic necessity for the relocation. Further, the record established that the proposed relocation would not have a substantial impact on the visitation schedule. The mother and the husband testified that they would transport the child to and from Pennsylvania every other weekend, and they offered to pay for a hotel for the father in Pennsylvania on his off-weekends so that he could exercise additional access with the child. The mother further testified that the holiday access schedule would remain the same because she and her husband would be returning to Western New York at those times to visit with their respective families, who resided there. In addition, the mother’s husband purchased video conferencing equipment for his household and the father’s household to enable the father and the child to communicate during the week and on the father’s off-weekends.

Thus, the mother established “the feasibility of preserving the relationship between the [father] and child through suitable visitation arrangements” Tropea, 87 N.Y.2d at 741. Therefore, the Appellate Division reversed the lower court and permitted relocation.

While the appellate court recognized the mother’s need to relocate, it is unfortunate that it took a situation where the mother and her husband both lost their job and exhausted all of their financial resources and their house went into foreclosure. In my opinion, it would be appropriate for the court to consider the parties’ economic circumstances well before they become dire. It today’s economy, it is likely that we will see these issues addressed by the courts time and time again.

Family Court Referees and Their Authority to Hear Cases

Most of the cases in Family Court are decided by Family Court Judges who preside over most Family Court hearings. The Family Court Judges, here in Monroe County and elsewhere in New York State, typically hear child custody, visitation, adoption, juvenile delinquency and other cases. However, here in Monroe County, Court Attorney Referees hear custody, visitation, and order of protection cases. Family Court Attorney Referees are appointed pursuant to the Family Court Act and CPLR.

One of the first things that takes place in a case before a Family Court Attorney Referee is that the parties and their attorneys will be asked if they will agree to the Referee’s jurisdiction to hear and determine the matter. If the parties agree, the Referee will asked them to sign a stipulation confirming their consent. If the parties do not consent, the case is usually removed and heard by the Family Court Judge.

It is critical for the Referee to make sure that the parties consent to his jurisdiction to hear the case. A recent case, Gale v. Gale, 2011 NY Slip Op 06490 (2nd Dept. 2011), demonstrates what happens if the referee fails to obtain that consent. In Gale, the mother filed a petition seeking to modify provisions of the parties’ judgment of divorce. The case was assigned to a Family Court Attorney Referee who heard the case and ultimately modified custody provisions of the judgment of divorce, granting the petitioner sole custody of the children. The father appealed, arguing that the referee lacked jurisdiction to hear the case since the referee had failed to have the parties sign the stipulation or otherwise establish that the parties consented to her jurisidiction. The Appellate Division agreed with the father and reversed.  Specifically, the Appellate Division stated that

Upon review of the record, we find that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there is no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here. Contrary to the mother’s contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge. Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father’s previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter.

Accordingly, the referee had no jurisdiction to consider the father’s petitions related to custody and visitation and the mother’s petition to modify custody, and the referee’s order determining those petitions must be reversed. (citations omitted)

While the parties cannot choose the person who will decide their case, they do not have to agree to the Family Court Attorney Referee to hear and decide it. Sometimes there are reasons to have the case heard by a Family Court Judge, and the parties should consider not agreeing to the referee’s jurisdiction under appropriate circumstances.

Interference with Visitation May Result in Change in Custody

In Keefe v. Adams, 85 A.D.3d 1225 (3d Dept. 2011), the Appellate Division, Third Department, had to address issues related to interference with visitation which were raised by the father who brought a petition to modify existing  custodial and residential arrangement.  The parties had a custody and residential arrangement on the basis of May 2007 consent order which provided for joint custody, with mother having primary physical custody and father having visitation. In August 2009, father sought a modification of custody, alleging that mother moved out of county without his consent and is consistently late in exchanging child at drop-off location.

The court held that a significant change in circumstances occurred which reflected real need to modify parties’ stipulated custody order. The court found that mother admitted to moving with child to different county, 42 miles away from father, without informing him, and parties’ relationship deteriorated to point of inability to discuss important matters concerning their child. Further, mother also consistently arrived between 15 minutes to 2 hours late in dropping child off or picking child up. Mother interfered with father’s visitation rights by arriving late for dropping off and picking up child. The court also held that evidence showed as well that mother promoted her boyfriend as substitute for child’s father and that her relocation both required the child to change schools and hindered the father’s involvement in the child’s life. The father, on the other hand, manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child. The court noted that while custody with the father will unfortunately separate the child from his half brother, with whom he has a close relationship, the father testified that the half brother would be welcome in his home.

In view of the above circumstances, the court held that an award of sole custody to father with visitation to mother in child’s best interests. The court’s decision to modify existing custodial arrangement is not a common one. In most cases, courts are likely to fashion a less drastic remedy.

Can a Parent Travel with Young Child Abroad Over Custodial Parent’s Objections?

One issue that may come up in custody cases is whether a nonresidential parent has ability to take a child abroad during his or her period of visitation. It is not uncommon for a residential parent to object to such request, and sometimes parties wind up in court seeking a determination whether such travel can be permitted.

In a recent case, Russo v. Carmel, 2011 N.Y. Slip. Op. 05889 (4th Dept. 2011), the Appellate Division, Fourth Department, permitted the father to travel to Italy with his two year old child for a period of not more than 15 days on 60 days’ notice to the mother. The mother opposed the request, arguing that the child was never away from the mother for longer than 48 hours, that the father’s visitation was limited to 48 hour periods and that the child would be in an unfamiliar environment with relatives who were unknown to the child.  The court held that the record established that, although the father’s visitation with the child was limited, the father has a close bond with her and, during visitation, he prepared her meals, bathed her, administered medication as necessary and took her on outings. Further, the mother did not express any concerns that the father would abscond with the child. The court concluded that it is in the best interests of the child to travel with the father to Italy to meet her extended family.

While in most cases the court is unlikely to allow a parent to travel abroad with a very young child, in this case, the father was able to present convincing evidence that the trip was intended to introduce the child to her relatives abroad. Further, the mother was unable to present any evidence of the father’s inability to take care of the child and was not afraid that the father would refuse to come back to the United States. In view of these facts, the trial court’s decision and the Appellate Division’s decision were clearly correct.  While the residential parent may have a significant measure of control over non-residential parent’s ability to travel with the child, the residential parent should not raise objections unless there is specific evidence that such travel would be inappropriate and not in the best interests of the child.