Posts Tagged ‘petition’

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.

Can a Child Bring Petition Seeking Modification of Custody?

Saturday, June 18th, 2011

While the vast majority of cases petitions seeking to modify custody are brought by parents, can any one else bring a petition seeking to modify custody? I have written previously about petitions brought by non-parents, such as grandparents or someone who has a relationship with a child. A recent decision brought forth yet another party who can bring a petition seeking to modify custody – a child himself. In a recent decision, Trosset v. Susan A., 2011 N.Y. Slip. Op. 21151 (Fam Ct. Otsego Co. 2011), the court held that a child had standing to bring a petition seeking modification of present custodial arrangement. In Trossett, the child’s attorney filed a petition to modify prior court order. Respondent moved to dismiss the petition arguing that child’s attorney lacks standing to file petition concerning custody on behalf of child. The court held that  ”[w]hile absence of specific authority regarding custody and visitation is problematic, absence of statute granting child standing, such standing depends upon whether party has alleged facts showing disadvantage to himself or herself.” (citations omitted).  According to the decision, the attorney for child made allegations that directly relate to child’s desire to live with father. The court opined that the child has stake in outcome sufficient to confer standing upon him to file petition, or by child’s attorney on child’s behalf.

The decision does not provide much in a way of facts or legal authority for the court’s decision, however, I would guess that the child was older and, therefore, would have an opportunity to have input on any custody decisions. In addition, I would think that the parties were involved in court proceedings previously since the child had an attorney representing him.

Since the decision dealt with procedural issues related arising out of petition being filed by attorney for the child, we may never know how the case was resolved. However, I suspect that this issue may be appealed in the future and we may learn of further developments in the case.

Child Support, Equitable Estoppel and Same-Sex Relationship

Monday, June 15th, 2009

I have previously written about issues of equitable estoppel, which may result in non-biological parent being treated as a biological parent of the child. Recently, I came across a case, H.M. v. E.T., 2009 N.Y. Slip Op. 04240 (2nd Dept. 2009) that dealt with applicability of equitable estoppel to child support in a same-sex relationship situation.

In October of 2006, H.M., an Ontario resident, and the birth mother of a 12-year-old child, filed a “Support Application” with a Canadian agency, seeking to have E.T., a Rockland County resident, and H.M.’s former same-sex partner, adjudicated a parent of the child. H.M. also sought an award of child support retroactive to the date of the child’s birth.  In support of her application, H.M. alleged that in August 1989, the parties lived in New York, entered into a monogamous relationship, and started cohabitating. H.M. alleged that the parties then agreed that she would attempt to become impregnated via artificial insemination, and that after a child was born, they would parent that child together. H.M. alleged that pursuant to this agreement, and with E.T.’s assistance and encouragement, she became impregnated by sperm from an anonymous sperm donor. In September 1994, H.M. gave birth to the child. H.M. alleged that over the next few months, E.T. acted as a parent to the child by nurturing and caring for him. However, H.M. alleged that in January 1995, E.T. ended the parties’ relationship. H.M., who subsequently relocated with the child to Canada, alleged that after the relationship ended, she made numerous requests of E.T. for child support, all of which were refused.

After the child support proceeding was commenced in Canada, the case was transmitted to the Family Court, Rockland County pursuant to the Uniform Interstate Family Support Act (Family Ct Act art 5-B (hereinafter “UIFSA”).  Initially, the Support Magistrate found that under the present law of New York, there was no basis upon which the Family Court could adjudicate E.T. a parent of the subject child and require her to pay child support. In this regard, the Support Magistrate noted that E.T. was not the birth mother of the child or an adoptive parent of the child, never executed an official acknowledgment of parentage of the child, and was not in a legally recognized same-sex marriage or civil union with H.M. when she gave birth to the child. The Support Magistrate, pointing out that the Family Court is a court of law with limited subject matter jurisdiction, found no provision in Family Court Act Article 5, or in any other article of the Family Court Act, applicable to a controversy between a birth mother and another female concerning the other female’s parentage of a child. Finally, the Support Magistrate, deeming all of H.M.’s factual allegations to be true, and observing that equitable considerations might suggest that E.T. be adjudicated a parent of the child and required to pay child support, noted that the Family Court cannot grant equitable relief.

Subsequently, after the objections to the Support Magistrate’s Order were filed, the Family Court overturned the Support Magistrate’s Order citing cases where courts “held individuals responsible for the support of a child even though they were not related to the child by biology or adoption.” The Family Court observed that in those cases, the courts applied the doctrine of equitable estoppel which, the Family Court noted, will be applied in order to protect the best interests of a child born out-of-wedlock. Thus, the Family Court concluded that “a paternity proceeding [can] proceed against a same sex partner if circumstances are established justifying the [doctrine's] application.” Then, the Family Court, noting that the subject child was born as a result of E.T.’s “promises,” concluded that H.M.’s allegations, if true, could support a finding that E.T. “should be estopped [from denying] her role as a person responsible to provide support for [that] child.” Accordingly, the Family Court directed a hearing to determine whether E.T. “should be equitably estopped [from denying] her responsibility to provide support to the subject child.”

E.T. appealed from the order of the Family Court. The Appellate Division, Second Department, reversed the Family Court’s order and reinstated the order of the Support Magistrate dismissing the petition. The Appellate Division stated that the basic premise of the petition was that  H.M. who was never married to or in a civil union with E.T., sought to have E.T., a woman having no biological or legal connection to the subject child, adjudicated a parent of that child and required to pay child support. Since the Family Court received H.M.’s support application pursuant to UIFSA, it was authorized to determine “parentage” (Family Ct Act § 580-301[b][6]; § 580-701). UIFSA provides that in deciding such a proceeding, the Family Court is required to apply the procedural and substantive law generally applicable to a “similar” proceeding originating in this State, and may only exercise whatever “powers” and provide whatever “remedies” that are “available” in such a proceeding.

The only proceeding in this State “similar” to a proceeding for a determination of “parentage” is a proceeding pursuant to Family Court Act article 5. Yet, as the Support Magistrate recognized, Family Court Act article 5, entitled “paternity proceedings,” only provides a vehicle for resolving controversies concerning a man’s fatherhood of a child.  After analyzing the language of the Family Court Act, the court concluded that a paternity proceeding requires “the male party” to be “the father” of the child.

The court further held that although the doctrine of equitable estoppel can be applied in a proceeding pursuant to Family Court Act  Article 5, when the Family Court applies the doctrine, the Family Court is merely precluding a party from “denying a certain fact”.  This is not the same thing as the Family Court granting equitable relief, something the Family Court lacks the power to do. Therefore, when the Family Court applies the doctrine, the Family Court is doing so as a means of granting relief specifically authorized by the Constitution or statute. That is, the Family Court is applying the doctrine as a means of adjudicating a “male” “the father” of a child. However, H.M. has demanded certain relief the Family Court is not specifically authorized by the Constitution or statute to grant. Under these circumstances, the Family Court could not apply the doctrine, and could not reach the issues of whether E.T. should be estopped from denying her parentage of the subject child, and whether estopping E.T. from denying her parentage of the child would be in the child’s best interests. If the Family Court applied the doctrine as a means of granting relief not specifically authorized by the Constitution or statute, that would be tantamount to the Family Court granting equitable relief.

The logic of the Appellate Division’s decision, its heavy emphasis on the language of the Family Court Act, and especially the use of the term “male”, raise the question of whether a different result would have been reached on these facts if both parties to this litigation were male. Since recent decisions in this area of family law have been gender neutral, it seems likely that the Court of Appeals, if the case is appealed, will likely focus on on whether any such applications should be considered on a gender neutral basis and also, even more importantly, whether the courts will move away from “paternity by estoppel” toward “parentage by estoppel” as a matter of equity. I believe that we may learn the answer to this question in the foreseeable future.

Unmarried Fathers, Child Support and Liability for Birth Expenses of the Child and the Mother

Saturday, April 11th, 2009

In a typical child support proceeding brought under the Article 4 of the Family Court Act, the child support is retroactive to the date of the filing of the child support petition.  The Family Court is generally unable to grant child support to a date preceding the filing, unless the child is receiving public assistance.   However, where the paternity is concerned, Family Court’s powers are much broader.  Paternity proceedings are governed by the Article 5 of the Family Court Act.  Article 5 contains two sections that address child support, including costs of birth and related expenses: Section 514 and Section 545.

Under Section 514 of the Family Court Act, the father is liable to pay the reasonable expenses of the mother’s confinement and recovery and such reasonable expenses in connection with her pregnancy, as the court in its discretion may deem proper.  What makes this significantly different from child support proceeding under Article 4 of the Family Court Act, usually Sections 412 and 413, is that the mother’s expenses typically occur well before the petition is filed and even before the child is born.  While Section 514 gives the Family Court at least some discretion in apportioning such expenses, if the mother was receiving public assistance during her pregnancy, the father may be liable to the social services district furnishing such medical assistance and to the state department of social services for the full amount of medical assistance so expended.  See Wayne County Dept. of Social Services ex rel. Van Dusen v. Petty, 273 A.D.2d 943 (4th Dept. 2000).

Under Section 545(1) of the Family Court Act, the father is responsible for child support, retroactive to the earlier of the date of the application for an order of filiation, or, if the children for whom support is sought are in receipt of public assistance, the date for which their eligibility for public assistance was effective.  However, under Section 545(2) of the Family Court Act, the Family Court’s discretionary powers are much broader.  Section 545(2) provides that the court, in its discretion, taking into consideration the means of the father and his ability to pay and the needs of the child, may direct the payment of a reasonable sum or periodic sums to the mother as reimbursement for the needs of the child accruing from the date of the birth of the child to the date of the application for an order of filiation.  In my experience, in dealing with a petition brought under Section 545, the Family Court unambiguously focuses on the unwed father’s present ability to pay, as measured by his current resources and his earning capacity, and not what the unwed father’s ability to pay was at the time of birth.  This may come as an unwelcome surprise to the unwed father, if the petition is brought several years after the child is born.

Yet another difference between proceedings brought under Article 5 of the Family Court Act and Article 4 of the Family Court Act is that under Section 517 of the Family Court Act, proceedings to establish the paternity of a child, and to establish liability for mother’s expenses, may be instituted during the pregnancy of the mother or after the birth of the child.

As a lawyer frequently dealing with these issues, I  evaluate my clients’ financial situation at the time of the child’s birth and the time the petition is brought, since the court will focus on my client’s ability to pay.  I also analyze the mother’s finances within the same time frame and also the proof of payment of medical bills.  Ocasionally, these cases are won and lost on the issue of admissibility of the medical bills.

Family Court and Willful Failure to Pay Child Support

Monday, September 15th, 2008

There is a presumption, applicable to child support enforcement proceedings in Family Court that a party, against whom a child support order was issued, has sufficient means to support his/her minor children. See Family Court Act § 437. The evidence that the party directed to pay child support has failed to pay support as ordered, constitutes “prima facie evidence of a willful violation”. Family Court Act § 454(3)(a). Once the petition alleging willful violation of a child support order was filed in the Family Court, the burden then shifts to respondent to adduce some competent, credible evidence of his/her inability to make the required payments. If the requisite showing is not made, the party will be found to have willfully failed to pay child support. Once this finding is made, the party is liable to a range of penalties, including attorneys fees and possible incarceration.

This presumption does not apply to child support enforcement proceedings brought in Supreme Court under the Domestic Relations law. If an enforcement proceeding is brought in Supreme Court, the usual remedies sought are a judgment for any unpaid arrears, attorneys fees and, possibly, a finding of contempt. The burden of proof applicable to contempt proceedings is much higher than that applicable to the proceedings brought under Family Court Act § 437.

Child Support Modification and Contents of a Family Court Petition

Saturday, August 30th, 2008

In order for the parent having primary physical residence of the child to seek upward modification of an existing child support obligation, a Family Court petition must present factual allegations representing a substantial change in circumstances. If such allegations are not presented, such petition fails to state a cause of action and is subject to dismissal. In meeting such burden, the party must establish the “’specific increases in the costs associated with the child’s basic necessities’ … ‘as well as the expenses associated with the child’s varied interests and school activities’ and cannot ‘[rely] on generalized claims of increases due to the child’s maturity or inflation’”. Cadwell v. Cadwell, 294 A.D.2d 434 (2d Dept. 2002); Gentry v. Littlewood, 269 A.D.2d 846 (4th Dept. 2000); Greenway v. Greenway, 262 A.D.2d 855 (3rd Dept. 1999).
Therefore, a petition should contain specific allegations addressing the change in the child’s needs and explaining how the parent with whom the child resides is unable to meet them.