Law Office of Bruce A. Young
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Published Family Law
Linda R 2010
State of N.Y. ex rel. Barbara D. v Francis D.
2009 NY Slip Op 00045 [58 AD3d 436]
January 8, 2009
Appellate Division, First Department

Naomi C 2008

Outcome: Reversed Trial Judge Drager NY Sup Ct 2010

Description: Appellate Court First Department reversed Trial Judge Drager finding unlawful delegation of authority to Mental Health Expert to make juddicial decisions regarding supervision of access, day to day therapy for child. 

 Reversed order that took violated custodial parent's right to travel 

Appellate Court defined where excessive state power violates a parents rights

Linda R. v Ari Z.
2010 NY Slip Op 01843 [71 AD3d 465]
March 9, 2010
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 28, 2010


Linda R., Appellant,
v
Ari Z., Respondent.
—[*1] Bruce A. Young, New York, for appellant.

Rhonda R. Weir, Brooklyn, for respondent.

Chemtob, Moss, Forman & Talbert, LLP, New York (Susan M. Moss of counsel), Law Guardian.

Order, Supreme Court, New York County (Laura E. Drager, J.), entered August 21, 2009, which, in a child custody proceeding, found that the father should have unsupervised visitation with the subject child after a transition period managed by an "intervention therapist," unanimously modified, on the law, to delete the portion of the order that provides for the intervention therapist to determine when unsupervised visitation is to begin, and otherwise affirmed, without costs. Order, same court and Justice, entered July 31, 2009, which, inter alia, appointed an intervention therapist to supervise the immediate ending of the father's supervised visitation, unanimously modified, on the law, to delete the phrase "and shall follow her directions" in the sixth decretal paragraph, and otherwise affirmed, without costs. Order, same court and Justice, entered October 29, 2009, which, inter alia, temporarily awarded the father decision-making custody with respect to the child's mental health issues, unanimously modified, on the law, to delete the portion of the order requiring that the child's passport be turned over to the mother's attorney, and otherwise affirmed, without costs. Order, same court and Justice, entered November 13, 2009, which, insofar as appealed from as limited by the briefs, directed that the mother's counsel was not to attend the intervention therapy sessions, unanimously affirmed, without costs.

"[T]he determination of whether visitation should be supervised is a matter left to Family Court's sound discretion[,] and its findings, to which deference is to be accorded, will not be disturbed on appeal unless they lack a sound basis in the record" (Matter of Custer v Slater, 2 AD3d 1227, 1228 [2003] [internal quotation marks and ellipsis omitted]). Here, despite the Law Guardian's view to the contrary (see id.; Baker v Baker, 66 AD3d 722, 723-724 [2009]), the court's finding that the child should transition to unsupervised visitation with the father has ample support in the record, including the opinion of the court-appointed forensic psychologist and the testimony of impartial witnesses that the child seemed comfortable and relaxed while visiting with her father. Further, there is no indication that the court "ignored" evidence of the child's feelings toward her father; rather, in providing for a gradual transition to unsupervised visitation, the court explicitly took the child's feelings into account. [*2]

However, the court improperly delegated to a mental health professional its authority to determine issues involving the best interests of the child, i.e., when unsupervised visitation should commence (see Matter of Held v Gomez, 35 AD3d 608, 608-609 [2006]; Matter of Henrietta D. v Jack K., 272 AD2d 995 [2000]), and we modify accordingly. The parties may, if so advised, make another application to the court regarding unsupervised visitation, at which time the court may render a decision on that issue, with the assistance, if necessary, of further reports from the intervention therapist.

With respect to the child's passport, the parties' settlement stipulation allows the mother to travel with the child to Canada for 10 days at a time, and there has never been any suggestion by the father himself or his attorney that the mother is a flight risk or has any intention of removing the child to Canada (cf. Anonymous v Anonymous, 120 AD2d 983, 984 [1986]; Kresnicka v Kresnicka, 42 AD2d 607 [1973]). Accordingly, we modify to delete the directive concerning the child's passport.

"[N]o agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child's best interest" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]). Thus, a child is not bound by the support and custody terms of an agreement between parents, and courts can modify these terms in the best interests of the child (see Family Ct Act § 461 [a]; Matter of Boden v Boden, 42 NY2d 210, 212 [1977]; cf. Sassian v Sassian, 126 AD2d 984 [1987]). The record contains a sound basis for finding that, during the transition period from supervised to unsupervised visitation, and subject, of course, to further order of the court, it is in the best interests of the child that the terms of the stipulation with respect to her mental health be modified so as to give the father decision-making authority.

We have considered the parties' remaining contentions and find them unavailing. Concur—Tom, J.P., Friedman, Sweeny, Nardelli and Abdus-Salaam, JJ.

.

Practice Area: Family

Outcome: Reverse Trial Court -No Pay fees for Law Guardian

Description: Frost v. Goldberg, 2006 NY Slip Op 05314 (N.Y. App. Div. 7/5/2006), 2006 NY Slip Op 5314 (N.Y. App. Div., 2006) Page 1 2006 NY Slip Op 05314 MARY FROST, appellant, v. WILLIAM GOLDBERG, respondent. 2005-03070. Appellate Division of the Supreme Court of New York, Second Department. Decided July 5, 2006. In a matrimonial action in which the parties were divorced by judgment dated March 20, 2001, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Barros, J.), dated November 4, 2004, as denied that branch of her motion which was to disaffirm the portion of a report of a Judicial Hearing Officer (Platt, J.H.O.) dated July 13, 2004, which recommended that the plaintiff reimburse the defendant the sum of $12,400 in fees paid by the defendant to the Law Guardian and granted that branch of the cross motion of the defendant which was to confirm that portion of the report.

Bruce A. Young, New York, N.Y., for appellant. William Goldberg, Montclair, N.J., respondent pro se. Before: ANITA R. FLORIO, J.P., FRED T. SANTUCCI, REINALDO E. RIVERA, STEVEN W. FISHER, JJ. DECISION & ORDER 

ORDERED that the order is reversed, on the law, with costs, that branch of the motion which was to disaffirm the portion of the report of the Judicial Hearing Officer which recommended that the plaintiff reimburse the defendant the sum of $12,400 in fees paid by the defendant to the Law Guardian is granted, that branch of the cross motion which was to confirm that portion of the report is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith. The Supreme Court improvidently exercised its discretion in declining to disaffirm and in confirming that portion of the Judicial Hearing Officer's report which recommended that the plaintiff reimburse the defendant the sum of $12,400 in fees paid by the defendant to the Law Guardian. "Although such fees and related expenses are entrusted to the sound discretion of the court, they are nonetheless to be controlled by the equities of the case and the financial circumstances of the parties" (Kane v. Rudansky, 23 AD3d 349, 350; see Domestic Relations Law § 237[b]; Cole Page 2 v. Cole, 283 AD2d 602). Here, the Judicial Hearing Officer failed to consider the financial circumstances of the parties. The defendant failed to file a current statement of net worth with his cross motion, as required by 22 NYCRR 202.16(k)(2) (see Kane v. Rudansky, supra). In addition, the plaintiff did not file a statement of net worth with the court. Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to consider the parties' relative financial positions, and for a new determination on the issue of reimbursement of fees paid to the Law Guardian (see Kane v. Rudansky, supra). The new determination should be made only after receipt of a statement of net worth from both parties (see 22 NYCRR 202.16[k][2]; Kane v. Rudansky, supra; Cole v. Cole, supra at 602-603). FLORIO, J.P., SANTUCCI, RIVERA and FISHER, JJ., concur



Naomi C. v Russell A.
2008 NY Slip Op 00981 [48 AD3d 203]
February 5, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 16, 2008

Naomi C., Appellant,
v
Russell A., Respondent.
—[*1] Bruce A. Young, New York City, for appellant.

Russell A., respondent pro se.

Order, Family Court, New York County (Helen C. Sturm, J.), entered on or about August 9, 2007, which dismissed, without a hearing and without prejudice, the petition to modify an order of custody, unanimously affirmed, without costs.

Petitioner's contention that sufficient grounds exist to modify the parties' so-ordered stipulation is without merit; neither custody nor visitation should be changed without a hearing (see e.g. David W. v Julia W., 158 AD2d 1, 6 [1990]; Matter of Fischbein v Fischbein, 55 AD2d 885 [1977]). However, Family Court was not required to hold a hearing here because petitioner failed to make the necessary evidentiary showing (see David W., 158 AD2d at 7).

Although the court was warranted in dismissing the petition on its face, we point out that the questioning of the Law Guardian (now called Attorney for the Child) by the court is something that should not be repeated. With the parties present, the court asked the Law Guardian, on the record, to discuss the position of the 10-year-old child regarding how well the current custody arrangement was working. Although the court was correct to disallow the "cross-examination" of the Law Guardian by petitioner's counsel, the court should not consider the hearsay opinion of a child in determining the legal sufficiency of a pleading in the first place. Most importantly, such colloquy makes the Law Guardian an unsworn witness, a position in which no attorney should be placed. "The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to . . . becoming a witness in the litigation" (Rules of Chief Judge [22 NYCRR] § 7.2 [b]). [*2]

We have considered petitioner's remaining arguments and find them unavailing. Concur—Lippman, P.J., Gonzalez, Buckley and Sweeny, JJ



State of N.Y. ex rel. Barbara D. v Francis D.
2009 NY Slip Op 00045 [58 AD3d 436]
January 8, 2009
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 11, 2009


State of New York ex rel. Barbara D., Appellant,
v
Francis D., Respondent. Francis D., Respondent, v Barbara D., Appellant.
—[*1] Bruce A. Young, New York, for appellant.

Francis D., respondent pro se.

Orders, Supreme Court, New York County (Laura VisitaciÓn-Lewis, J.), entered on or about July 15, 2008, which denied appellant former wife's motion for an order authorizing her unsupervised visitation with the parties' child, and dismissed her proceeding for a writ of habeas corpus, affirmed, without costs.

The continuation of supervised visits was directed by order of Supreme Court (Judith J. Gische, J.), entered December 3, 2004. According to that order, the supervised visitation would continue "for an indeterminate duration and until there has been a sufficient change in circumstances warranting a modification." The court expressed concern that appellant was coaching the then-five-year-old child to make accusations of abuse against her father. Although at that time the supervisors did not report any actual coaching, Justice Gische noted that appellant's single-minded search to collect evidence to "get" the father was emotionally harmful to the child, and that her negative and hostile remarks confused and upset the child.

"One who seeks to modify an existing order of visitation is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant it" (Matter of Timson v Timson, 5 AD3d 691, 692 [2004]). With respect to the instant application, appellant has failed to make a prima facie showing of a sufficient effort on her part to break the pattern of hostility and destructive behavior that led the court to require supervised visitation in the first place. In fact, in an August 2007 letter to the court, appellant's therapist, Michael Leiman, CSW, stated: "She holds much anger—much stemming from her relationship with her ex husband & from present [*2]circumstances with the visits which she regards as unfair. This is reflected, probably, in hyper vigilance about [the child's] well being & over concerns of neglect by the father." This excerpt from a document submitted by appellant herself demonstrates that she has failed to gain sufficient insight into her underlying behavior. She expresses remorse only for some vituperative and profane tirades that she directed at her former husband, within earshot of the child. In weighing this claim of regret, we note that the tirades are undeniable because they were tape-recorded by the father. Accordingly, the court correctly determined appellant had failed to demonstrate a change in circumstances that would warrant a change in the conditions of visitation.

Appellant's additional argument that she should not have to continue to bear the cost of visitation is unfounded. She never objected to entry of the access monitor order, which sets forth the relevant fees. Moreover, in a previous order, the court noted, contrary to appellant's current contention, that at an appearance in October 2007, the access supervisor informed the court he had repeatedly offered to arrange for appellant to receive free supervision services through the Society for the Prevention of Cruelty to Children. The court also noted that appellant did not at that time dispute the supervisor's representation and indeed agreed that he should make the necessary arrangements.

In light of that portion of the order directing the resumption of supervised visitation at the earliest date possible, the court correctly dismissed the proceeding for a writ of habeas corpus as moot.

We have considered appellant's remaining arguments and find them without merit. Concur—Andrias, J.P., Nardelli and DeGrasse, JJ.

Sweeny and Freedman, JJ., dissent in part in a memorandum by Sweeny, J., as follows: I must part company with the majority on two issues.

I agree that a party seeking modification of an existing order of visitation is not automatically entitled to a hearing, but must make a sufficient evidentiary showing of changed circumstances to warrant one (Matter of Timson v Timson, 5 AD3d 691 [2004]). In this case, appellant has made such a showing.

The evidence fully warranted the imposition of supervised visitation in the past. Furthermore, appellant's repeated applications to terminate supervised visitation feed into that conduct and would try the patience of any trial court. However, on the record before us, appellant, on this application, has sufficiently met her burden of showing changed circumstances to at least warrant a hearing.

Appellant submitted a certificate, dated July 27, 2007 that she had completed a parenting course. While the majority cites her therapist's report of August 2007 to the court that she still "holds much anger" against her ex-husband, it does not appear anywhere that that anger is in any way directed at the child. Indeed, later reports from the therapist, whom appellant has been seeing on a regular basis, state in no uncertain terms that supervised visitation was doing more harm than good to the mother-child relationship and should be ended immediately. Also reflected in those reports are the concerns about the role of the supervisor in the visitation process. [*3]

It goes without saying that the main factor in determining appropriate visitation between parent and child is the best interests of the child. We have previously noted—and this is in no way a criticism of the lower court—that "The court's observations of [a party's] demeanor and conduct in court should not be the focus when considering the visitation arrangement. The focus must be solely on the child's best interest, which is normally best protected by allowing the development of the fullest possible healthy relationship with both parents" (Nimkoff v Nimkoff, 18 AD3d 344, 347 [2005]; see also Weiss v Weiss, 52 NY2d 170, 174-175 [1981]).

Significantly, the child is now 10 years old. It has been almost five years since the entry of the original order which is a significant period in this child's development. Appellant's therapist's comments of September 8, 2007 are noteworthy in this regard: "Supervised visits should end now. They do not make Barbara a better mother. They do not foster healthier & more consistent contact between mother & daughter. In fact they are doing the opposite. They do not serve Barbara as a parent & they do not serve the mother & child relationship."

In short, unlike her prior applications to end supervised visitation, appellant has now demonstrated that she has taken some affirmative steps to alter her prior conduct. The parenting course, which was not mandated by the court, along with her regular therapy, indicates an awareness that her prior conduct was inappropriate and detrimental. Her issues with the visitation supervisor, whether or not justified, are also apparently being addressed differently than she would have in the past.

I emphasize that the evidence submitted warrants nothing more than a hearing where the court can take testimony, tested by cross-examination, and then be able to make an informed decision whether to grant, deny or modify appellant's application.

In that connection, I believe the court improperly rejected as "overbroad" appellant's draft subpoena to obtain access to the supervisor's records, which would be highly relevant to a determination whether supervision should be terminated. The subpoena was limited in time and scope to documents after January 2007, pertaining to supervision of appellant's visits with the child. One of the recurrent themes in her therapist's reports to the court has been appellant's complaints about the visitation supervisor. Whether or not these complaints are legitimate remains to be seen, but certainly those records, limited in time and scope, would be highly relevant at a hearing.

On all remaining issues, I concur with the majority.
Barbara E. v John E.
2007 NY Slip Op 07534 [44 AD3d 426]
October 11, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 12, 2007


Barbara E., Appellant,
v
John E., Respondent.
—[*1] Bruce A. Young, New York City, for appellant.

No appearance or brief submitted on behalf of respondent.

Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about January 30, 2007 under Docket No. O-01015/07, which, after a fact-finding hearing, granted a two-year order of protection in favor of petitioner and against respondent and denied petitioner's application that respondent be excluded from the family home, unanimously modified, on the law and the facts, to the extent of directing that respondent be excluded from the family home, otherwise affirmed, without costs. Order, same court and Justice, entered on or about January 30, 2007 under Docket No. O-01881/07, which, following a fact-finding hearing, granted a two-year order of protection in favor of respondent and against appellant, unanimously affirmed, without costs.

Family Court found that respondent committed family offenses against appellant that would constitute assault in the third degree, harassment in the second degree, and attempted assault in the third degree. Appellant's credible testimony established that respondent knocked her unconscious on one occasion resulting in a two-inch bump on her head, he verbally abused her on a daily basis, hit her, and broke household items or threw things at her whenever he was angry. Appellant, who was wheelchair bound and undergoing treatment for cancer, was particularly vulnerable to respondent's verbal and physical abuse, and an order of protection directing respondent's exclusion from the home was necessary to provide meaningful protection for appellant and to eradicate the root of the family disturbance (see Matter of Charles v Charles, 21 AD3d 487 [2005]; Merola v Merola, 146 AD2d 611 [1989]; Matter of Leffingwell v Leffingwell, 86 AD2d 929 [1982]).

The order of protection granted in favor of respondent was appropriate in light of the finding that appellant committed a family offense that would constitute harassment in the second degree based upon her admission that she slapped respondent (Penal Law § 240.26 [1]).

We have considered appellant's remaining contentions and find them unavailing. Concur—Tom, J.P., Mazzarelli, Friedman, Sullivan and Nardelli, JJ.
Brice v Brice
2005 NY Slip Op 02319 [16 AD3d 259]
March 22, 2005
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 18, 2005


Ivan Brice, Appellant,
v
Giulia Maria Alimonti Brice, Respondent.
—[*1]Order, Supreme Court, New York County (John E.H. Stackhouse, J.), entered on or about November 12, 2003, which granted defendant wife's motion for pendente lite relief, unanimously modified, on the facts, to reduce the awards of temporary maintenance to $500 per week, temporary child support to $445 per week, and interim attorneys' fees to $20,000, and otherwise affirmed, without costs.

The temporary maintenance set by the motion court imposes too great a financial burden on plaintiff and we adjust it so as to better reflect his ability to contribute toward defendant's reasonable needs (Domestic Relations Law § 236 [B] [6]). In addition, we reduce the award of temporary child support so as to reflect the standard calculation under the Child Support Standards Act (Domestic Relations Law § 240), and the award of interim attorneys' fees so as to reflect defendant's request therefor. Concur—Tom, J.P., Andrias, Saxe, Friedman and Nardelli, JJ.
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