New York’s Highest Court Requires Hearings for Final Child Custody Determinations

–by Shannon Mumaw

Sources:

S.L. v. J.R., 56 N.E.3d 193 (2016); Daniel Leddy, Major Custody Ruling by New York’s Highest Court, silive.com (June 20, 2016, 12:17 PM), http://www.silive.com/opinion/danielleddy/index.ssf/2016/06/major_custody_ruling_by_new_yo.html.

Abstract:

The New York Court of Appeals held that in general, final custody determinations should only be made after a full and complete evidentiary hearing.

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Summary:

The mother and father, who were both attorneys, had been married for nearly fifteen years before the mother commenced divorce proceedings against the father and sought full custody of their two minor children. The father, who had left the marital home months before, returned to find that the mother had broken the windows and burned his clothes. The father filed an order to show cause seeking temporary sole legal custody of the children. In addition to incidents of harassment, the father alleged he feared for the children’s safety because the mother engaged in extramarital affairs and abused prescription medication and alcohol.

The trial level court granted the father temporary sole interim legal and physical custody with supervised visitation for the mother, which was later continued by the issuance of a second order. After a court-appointed forensic evaluator concluded that the father was the more “psychologically stable” parent, the court granted full custody to the father without a hearing. Additionally, the court suspended visitation for more than five months, noting that the mother “acknowledged her involvement in many incidents of disturbing behavior.”

In unanimously affirming the lower court’s decision, the Appellate Division, Second Department, held that although custody determinations “generally may only be made following a full and comprehensive evidentiary hearing . . . no hearing is necessary where, as here, ‘the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child’s best interest.’”

On June 9, 2016, the New York Court of Appeals overturned the Appellate Division and held that final custody determinations should only be made after a full hearing is conducted. However, the court declined to fashion a catchall rule mandating a hearing in every case. In its opinion, the court stated that by applying the “undefined and imprecise ‘adequate relevant information’ standard,” the lower courts effectively relied on hearsay statements and the conclusion of a court-appointed forensic evaluator whose opinions and credibility were untested. The court went on to say that such a standard does not adequately protect a parent’s fundamental right to control the upbringing of his or her child.

Further, the court held that taking into consideration the governing principle in all custody determinations­­—the best interest of the child—there are no absolutes; rather custody determinations must be entrusted to the discretion of the trial court.

New York Court of Appeals Cites College of Law Alum

—by Adam Kuhn
Special thanks to Mary Ellen Gill for her assistance with this article.

Sources: Brooke S.B. v. Elizabeth A. C.C., No. 91, 2016 WL 4507780 (N.Y. Aug. 30, 2016); Mary Ellen Gill, Note, Third Party Visitation in New York: Why the Current Standing Statute Is Failing Our Families, 56 Syracuse L. Rev. 481 (2006)

Abstract: The New York Court of Appeals expanded the definition of “parent” to include a non-biological, non-adoptive partner. The court overruled a 1991 case that defined “parent” as a biological parent or adoptive relative.

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The NY Court of Appeals cited 2006 College of Law alumnae Mary Ellen Gill’s Syracuse Law Review Note in Brooke S.B. v. Elizabeth A. C.C. The court held in its August 30th decision 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” under NY Domestic Relations Law Section 70(a).

At issue was the vitality of Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991), where the Court of Appeals defined “parent” as a biological parent or adoptive parent. This meant that a person who did not fit this relationship to a child had no standing to seek visitation. The issue affected all manners of family relationships, with implications for not only same-sex partners, but also all functional parents who took on care of a child from a different relationship than a biological parent, sibling, or grandparent. However, this issue has now been resolved, as Brooke S.B. has overruled the strict definition that was created by Alison D., and allowed non-biological, non-adoptive partners to have standing to seek visitation.

In the majority opinion, Judge Abdus-Salaam noted that “legal commentators have taken issue with Alison D. for its negative impact on children,” citing Ms. Gill’s Note, among others, for the proposition that “children suffer [trauma] as a result of separation from a primary attachment figure—such as a de facto parent—regardless of that figure’s biological or adoptive ties to the children.”

Photo of Mary Ellen Gill
Mary Ellen Gill

Ms. Gill’s Note, titled Third Party Visitation in New York: Why the Current Standing Statute Is Failing Our Families, was published in Volume 56 of the Syracuse Law Review. The Note discussed NY Domestic Relations Law Section 70(a), which provides that only a parent (or sibling or grandparent) can petition for visitation with a child. The Note suggested an amendment to the statute based on a factor test.

Ms. Gill, who currently works as a Pro Se Law Clerk to the Hon. Michael A. Telesca in the U.S. District Court for the Western District of New York, said she was excited and proud to have her Note cited by New York’s highest court.

In re Jaynie S.

— by Sarah Ballard

Case: In re Jaynie S., 2015 WL 8083037 (1st Dept. Dec. 8, 2015)

Abstract: Respondent-father was “clearly informed” to stop sending letters to Petitioner-mother and child and thus committed the family offense of stalking in the fourth degree when he mailed petitioner and child letters after he received a temporary order of protection, which stated that Respondent was not to communicate with Petitioner or child except as necessary to effectuate court-ordered visitation or to discuss child’s welfare, and where Respondent sent letters when there was no order of visitation in place and the contents of the letter went beyond asking for mere visitation with child or inquiring about his welfare. 

 

Summary: A father appealed an order from the Family Court, Bronx County, in which, after a nonjury trial in family offense proceeding, Diane Kiesel, J., determined that the father had committed the offenses of aggravated harassment and stalking against the mother of his child and imposed a five-year order of protection against the father.  The Appellate Division affirmed.  In doing so, it held that the father had committed the family offense of fourth-degree stalking because it could not be seriously argued that he was not “clearly informed” to cease sending petition and the child letters (see Penal Law § 120.45[2]) and that “aggravating circumstances” warranted issuance of a five-year order of protection.  Specifically, the father mailed the mother and child letters after he had received a temporary order of protection which clearly advised the father to stop sending the mother and the child letters.  Although the order did allow the father to to contact the mother “as necessary to effectuate court-ordered visitation or to discuss the child’s welfare,” at the time there was no order of visitation in place when the father sent the letters.  Furthermore, the contents of the letter went beyond asking for visitation with the child or inquiring about his welfare.  Moreover, the mother testified that receiving the letters had frightened her.

 

International Child Custody Case at the Second Circuit

by Dalya Bordman

 

Ermini v. Vittori, 758 F. 3d 153 (2d Cir. 2014).

An Italian family, parents Emiliano Ermini, Viviana Vittori, and children Emanuele and Daniele, moved to the United States from Italy in August of 2011 in efforts to find treatment for Daniele who is autistic. The family moved to Suffern, New York and enrolled the children in public school and put their home in Italy up for sale. Daniele started Applied Behavioral Analysis (ABA) therapy shortly after the family moved to New York. After a violent altercation in the U.S. between Ermini and Vittori, divorce proceedings were instituted in Italy and a temporary order of protection issued in New York gave Vittori temporary custody of the children.

In September 2012, Ermini petitioned an Italian court for an order directing Vittori to return to Italy with their children and although granted, several provisions of the order were vacated by the Court of Appeals in Rome. The Rome Order granted Vittori exclusive custody of the children and did not require her to return to Italy with the children. Ermini subsequently filed a petition in the Southern District of New York pursuant to the Hague Convention seeking the return of both Emanuele and Daniele back to Italy. In determining whether the Hague Convention applied, the district court concluded that the boys’ habitual residence was Italy and that Vittori had wrongfully retained the children in the United States without the consent of Ermini. Accordingly, the court found that the Hague Convention did apply, however, ruled in favor of Vittori’s affirmative defense that returning the children to their habitual country posed a grave risk to Daniele. Thus, the court denied Ermini’s petition to return the children to Italy without prejudice.

The Second Circuit, however, called into question the district court’s determinations that (1) the family did not change its habitual residence from Italy to the United States, and (2) that Vittori breached Ermini’s custody rights. Firstly, the Second Circuit reasoned that the family may have changed their habitual residence to the United States as they had leased a house in the United States, put their home in Italy on the market, enrolled their children in public school and extracurricular activities in the United States, planned to open a business in the United States, and shifted all of Daniele’s medical care and treatment to the United States. Additionally, both Ermini and Vittori agreed that the move could be indefinite if Daniele’s treatment was succeeding. Secondly, based on the Rome Order, in which custody of the children was granted to Vittori, the court questioned whether or not Vittori’s keeping the children in the United States against Ermini’s wishes actually breached Ermini’s custody rights, as Ermini did not have legal custody of the children. The Second Circuit, however, did not overturn the district court’s ruling on those grounds because the issues of habitual residency and breach of parental rights were complicated, and instead affirmed the district court’s decision based on the affirmative defense of grave risk of harm to the child if returned. Thus, the Second Circuit assumed, arguendo, that the family had not changed their habitual residence from Italy to the United States and that Vittori did breach Ermini’s parental rights by keeping the children in the United States. The Second Circuit then affirmed the district court’s decision denying Ermini’s petition because the grave risk of harm defense was satisfied as, (1) Daniele would face a grave risk of harm if he was taken out of his therapy in the United States, and (2) the children faced a grave risk of harm in Ermini’s custody because he was physically abusive.  The Second Circuit then amended the district court’s judgment to deny Ermini’s petition with prejudice, reasoning that the Hague Convention is used to decide instances of wrongful child removal and when the Convention is invoked, a child is returned or he is not, once that decision is made, the Convention is no longer needed in that situation. Thus, the court affirmed the district court’s decision and amended its judgment to deny Ermini’s petition with prejudice.