Important New Decisions - July 13, 2011

Antithetical to Grant Standing Due to Existence of No Contact Order.

In Matter of Thomas X, --- N.Y.S.2d ----, 2011 WL 2640258 (N.Y.A.D. 3 Dept.) the Appellate Division affirmed an order which dismissed Wayne RR.'s applications, in two proceedings for custody of the children. When the Broome County Department of Social Services alleged that respondent Megan X. (mother) had violated the terms of Family Court's order directing her to ensure that her children (born in 1997, 2002 and 2003) have no contact with her boyfriend, Wayne RR. (petitioner), who is a known sex offender, she surrendered her parental rights. The mother had previously admitted to allegations of neglect after allowing unsupervised and inappropriate contact between petitioner and the children. Thereupon, petitioner commenced two proceedings seeking custody of the children. Finding that petitioner lacked standing, Family Court dismissed his petitions without a hearing. Family Court also granted a one-year order of protection in favor of the children against petitioner and denied his subsequent motion to vacate that order. The Appellate Division held that inasmuch as petitioner has no biological relationship to the children, his standing to seek custody was determined under the common-law standard requiring the establishment of extraordinary factual circumstances (see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548 [1976]). While the mother's surrender, the absence of the biological fathers from the children's lives and the lack of any other suitable relative may normally be considered as extraordinary circumstances the Appellate Division agreed with Family Court that it would be antithetical here to grant standing in spite of the existence of the no contact order. The mother admitted neglect based, in part, on allowing petitioner, who had a history of exposing himself to children, to have unsupervised contact with the children, to sleep in the same bed with the male middle child and to shower and urinate in the toilet together with the oldest male child. Given the lack of any real factual dispute regarding petitioner's role in the circumstances leading to the mother's admission of neglect and the issuance of an order directing her to ensure that he have no contact with the children, it would not disturb Family
Court's conclusion that he lacked standing to seek custody.


Motion to Dismiss Pursuant to Cplr 3211 May Be Directed Only Against a Cause of Action or a Defense, Not a Motion

In Matter of Burnham v Brenna, --- N.Y.S.2d ----, 2011 WL 2624043 (N.Y.A.D. 2 Dept.), the father moved to dismiss the mother's motion pursuant to CPLR 2221 to renew her prior motion and for an award of an attorney's fee. The Appellate Division held that Family Court properly denied the father's motion, because a motion to dismiss pursuant to CPLR 3211 may be directed only against a cause of action or a defense, not a motion (see CPLR 3211[a], [b] ). The proper response to the mother's motion would have been to submit opposition papers (see CPLR 2214[b] ).


It Is Error as a Matter of Law to Make an Order Respecting Custody, Even in a Pendente Lite Context, Based on Controverted Allegations Without a Full Hearing

In Matter of Swinson v Brewington, 84 A.D.3d 1251, 925 N.Y.S.2d 96 (2d Dept, 2011) petitioner father and the respondent mother were in a relationship from 2001 to 2004, but were never married. Their son David was born on May 10, 2002. From the time of his birth, David lived with his mother in Brooklyn while his father visited him at least four times a month. There was no court order concerning David's custody. In the Spring of 2006 the father moved to Tennessee. Beginning in 2007, David spent the summer with his father in Tennessee, and remained during the school year in Brooklyn with his mother. The father also traveled to Brooklyn to visit David during the Christmas holiday season in 2006, 2007, and 2008. At the end of the summer in August 2009, the father enrolled David in school in Tennessee, rather than return David to his mother in Brooklyn. He also filed a petition for custody. Shortly thereafter, the mother filed a cross petition for custody. When the parties initially appeared before the Family Court on September 8, 2009, the Family Court decided that David should remain in Tennessee so as not to disturb the status quo until the court received more information, since David had started school on August 10, 2009. Toward that end, the Family Court referred the matter to a judicial hearing officer for an evidentiary hearing. On October 26, 2009, the parties appeared before the Judicial Hearing Officer, at which time no testimony was taken or exhibits received, although the father indicated he was prepared to go forward. There was only oral argument on the issue of temporary custody. In support of his petition, the father annexed David's file from PS 329, David's former school in Brooklyn, which included his school records and his teachers' notes regarding various behavior issues and interactions with the mother. PS 329's file showed that for the 2008/2009 school year, David had excessive absences, was frequently tardy, and performed poorly. It also documented that from April to June 2009, David used profanity toward his teacher and classmates on numerous occasions, pushed his classmates, and punched himself. The teachers' notes also indicated that the mother was asked to leave the school grounds one morning when she began harassing another child about bothering David, and failed to attend an appointment with school personnel to discuss David's behavior. During this appearance, the attorney for the child stated, without submitting any evidence in support of her comments, that David was a special needs child and, as such, would not receive the services as provided for by PS 329 pursuant to his Individual Education Plan at his school in Tennessee. She acknowledged that David did not want to choose between his parents because he loved both of them, but it was her position that the mother should be issued a temporary order of custody. The father objected to the attorney for the child making a "report" and providing her own recommendation to the Judicial Hearing Officer. He disputed the statements made by the attorney for the child with respect to the sufficiency of David's school in Tennessee and sought to enter David's Tennessee school records into evidence. However, the Judicial Hearing Officer refused to admit the records or proceed with a hearing. In an order dated October 26, 2009, the Judicial Hearing Officer awarded temporary custody of David to the mother. The Appellate Divison pointed out that as a general rule, while temporary custody may be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing. The Judicial Hearing Officer erred in relying on the report of the attorney for the child and refusing to take testimony and receive documentary evidence offered by the father to refute the report. While attorneys for the children, as advocates, may make their positions known to the court orally or in writing, presenting reports containing facts which are not part of the record or making ex parte submissions to the court are inappropriate practices (citing Weiglhofer v. Weiglhofer, 1 A.D.3d 786, 788, 766 N.Y.S.2d 727 n.). Here, the Judicial Hearing Officer erroneously allowed the attorney for the child to refer to matters that were not in evidence, and compounded its error by refusing to allow the father to proffer documentary evidence to contradict the assertions of the attorney for the child.