Posts Tagged ‘notice’

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.

Step-Parent Adoption and Consent of Biological Father

Saturday, August 6th, 2011

Step-parent adoptions are generally simple if the biological parent provides his/her consent to the adoption. However, such consent may not be obtainable in every situation. Under some circumstances, consent of the biological parent will not be required by the court. Generally, for adoption purposes, the court qualifies biological parents into two categories: consent parent and notice parent.

If a parent is deemed to be a consent parent, that parent’s consent is required in order for the adoption to proceed. If a parent is deemed to be a notice parent, that parent receives a notice of adoption but his/her consent is not required.

The consent of a parent to the adoption of his child will not be required if the parent has abandoned the child. The child will be deemed abandoned if the parent evinced an intent to forego his parental or custodial rights and obligations by failing for a period of six months prior to the filing of an adoption petition to visit the child and communicate with the child or person having legal custody of the child although able to do so”. Domestic Relations Law §111(2)(a). The courts presume, in the absence of evidence to the contrary, the ability to visit and communicate with a child or person having custody of a child. DRL § 111(6)(a).

DRL §111(6)(b) states that, “evidence of insubstantial or infrequent visits or communication by the Father shall not, of itself, be sufficient as a matter of law to prevent a finding that the consent of the Father to the child’s adoption shall not be required”. Insignificant expressions of parental interest will not by themselves prevent a finding of abandonment.

Further, DRL § 111(6)(c) states that, “the subjective intent of the Father whether expressed or otherwise unsupported by evidence of acts specified in DRL § 111(2)(a) manifesting such intent, shall not prevent a determination that the consent of the Father to the child’s adoption shall not be required”.

In Matter of Ethan, 32 Misc.3d 1212(A) (Monroe Co. Fam. Ct. 2009), the birth father opposed proposed step-parent adoption and argued that his consent was necessary. Judge Joseph G. Nesser held a hearing and determined that the biological father has abandoned the child for a period of six months or longer, preceding the filing of the adoption petition.

Specifically, the court found that Father had not seen the child in well over one year before the adoption petition was filed nor did he speak to the child within that six month period. It was also uncontroverted that there were no cards, gifts, financial assistance or child support forwarded by father to mother for the child at least six months prior to the adoption petition being filed. Father’s letters postmarked May 13, 2008 and June 20, 2008 were forwarded to mother concerning the child. The court found that this was the only contact in over one year prior to the adoption petition being filed. Further, father knew members both in his family and in mother’s family to contact, but never had them contact mother to communicate with the child within six months prior to the filing of adoption petition.

The court also found that father was able to contact mother, knew her address; her telephone number; and her mother’s address and telephone number which were published but failed to contact her within six months prior to filing the adoption petition.

Just as important was the court’s finding that the father, for more than one year prior to the filing of the adoption petition, never provided any child support to Mother or any type of financial assistance whatsoever. Mother’s last child support payment was received on November 7, 2005, and the last financial assistance she received from father was in February of 2006.

Based on the above facts, the court determined that father evidenced an intent to forego his parental rights and obligations that was manifested by his failure for a period of six months to visit the child and communicate with the child or with mother, although able to do so, and of his failure to provide fair and reasonable child support according to his means for the child. Thus, the court dispensed with the father’s consent and allowed step-parent adoption to proceed.

Domestic Relations Law §255, Settlement Agreements and Judgments of Divorce

Sunday, September 13th, 2009

On October 9, 2009, Domestic Relations Law §255 will become effective.  DRL §255 is a replacement of DRL §177 which required:

1. Prior to accepting and entering as a judgment any stipulated agreement between the parties in the action for divorce, the judge shall insure that there is a provision in such agreement relating to health care of each individual.  Such statement shall either (a) provide for the future coverage of the individual; or (b) state that the individual is aware that he or she will no longer be covered by his or her spouse’s health insurance plan and that the individual will be responsible for his or her own health insurance coverage. Every agreement accepted by the court must contain the following statement, signed by each party, to ensure that the provisions of this subdivision are adhered to:

I, (spouse), fully understand that upon the entrance of this divorce agreement, I may no longer be allowed to receive health coverage under my former spouse’s health insurance plan. I may be entitled to purchase health insurance on my own through a COBRA plan, if available, otherwise I may be required to secure my own health insurance.

(Spouse’s signature) (Date)

2. Prior to rendering a decision in an action for divorce, the judge shall ensure that he or she notifies both parties that once the judgment is entered, a person may or may not be eligible to be covered under his or her spouse’s health insurance plan, depending on the terms of the plan. If, prior to accepting an agreement and entering the judgment thereon, the judge determines that the provisions of this section have not been met, the judge shall require the parties to comply with the provisions of subdivision one of this section and may grant a thirty day continuance to afford the parties an opportunity to procure their own health insurance coverage.

DRL§177 has been repealed to resolve the numerous practical problems it presented to the litigants.  Typical problems involved modifying previously executed separation and property settlement agreements.  Its replacement, DRL §255 provides as follows:

A Court, prior to signing a judgment of divorce or separation, or a judgment annulling a marriage or declaring the nullity of a void marriage, shall ensure that:

1. Both parties have been notified, at such time and by such means as the Court shall determine, that once the Judgment is signed, a party thereto may or may not be eligible to be covered under the other party’s health insurance plan, depending on the terms of the plan. Provided, however, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party’s health insurance plan depending on the terms of the plan, shall be deemed sufficient notice to a defaulting defendant.

2. If the parties have entered into Stipulation of Settlement/Agreement on or after the effective date of this section resolving all of the issues between the parties, such settlement/agreement entered into between the parties shall contain a provision relating to the health care coverage of each party; and that such provision shall either (A) provide for the future coverage of each party, or (B) state that each party is aware that he or she will no longer be covered by the other party’s health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available. The requirements of this subdivision shall not be waived by either party or counsel and, in the event it is not complied with, the Court shall require compliance and may grant a thirty-day continuance to afford the parties an opportunity to procure their own health insurance coverage.

As a result of its enactment, this section of the Domestic Relations Law will give judges greater discretion in insuring the time and method of notification of health insurance provisions and will eliminate DRL §177′ mandatory language, and replace with several different options that provide notification of the parties with respect to their health care coverage.   As stated in the Legislative Memorandum:

In sum, this measure should guarantee the most efficient processing of divorce actions while achieving section 177′s original objective, viz., to insure an awareness of the impact of divorce proceedings upon health insurance coverage, at less cost to and with fewer complications for the divorce litigants the statute sought to protect.

Divorce attorneys will have a greater degree of flexibility in providing appropriate notification during the course of divorce and that will certainly benefit their clients.