Selected cases relating to preliminary phase and interim relief

 

 

Jurisdiction.NY has jurisdiction to reconsider custody order issued by another country that failed to consider domestic violence;foreign court declined jurisdiction.†† Hector G. v. Josefina P., 2 Misc. 3d 801, 771 N.Y.S.2d 316 (Sup. Ct. Bronx Co. 2003)

 

Jurisdiction -- Uniform Child Custody Jurisdiction and Enforcement Act(UCCJEA) -- inconvenient forum questioned -- remand for hearing on jurisdiction.†† Rey v. Spinetta, 8 A.D.3d 393 (2d Depít 2004)

 

Jurisdiction -- Effect of subsequent divorce filing.†† Family Court not divested of jurisdiction by subsequent commencement of Supreme Court action.†† Fallon v.Fallon, 4 A.D.3d 426 (2d Depít 2004)

 

Full faith and credit.Arkansas divorce decree granting custody to respondent upheld.

People ex rel. Cesario v.Cesario, 4 A.D.3d 493 (2d Depít 2004)

 

Jurisdiction and forum non conveniens.Petition dismissed for lack of jurisdiction as child lived abroad for six months prior to commencement of proceeding.Randall v.Randall, 305 A.D.2d 512 (2d Depít 2003)

 

Jurisdiction.UCCJEA.New York is home state.†† Campbell v. Campbell, 785 N.Y.S.2d 510 (2d Dep't Nov.29, 2004).

 

Jurisdiction.NY has jurisdiction under UCCJEA.Arnold v. Harari, 4 A.D.3d 644 (3d Depít 2004)

 

Pleading.Father who did not petition for custody but only disputed health-care decisions should only be awarded joint decision rights and responsibilities regarding health-related decisions, not joint custody.(Note:failure to petition for custody not stated as determinative.)Penninipede v. Penninipede, 6 A.D.3d 445 (2d Depít 2004)

 

Amendment of pleadings.ďFamily Court did not violate the grandmother's right to proper notice when it permitted the father to amend his visitation petition to include custody as well. Parties may amend or supplement their pleadings "at any time by leave of court," with such leave to be "freely given" (CPLR 3025 [b]; see Family Ct Act ß 165 [a]). The grandmother did not request a continuance to prepare additional evidence, she did not establish that the amendment would prejudice her in any manner, she did not indicate any different evidence that she would have supplied had she known the hearing would address custody and the evidence she presented applied to custody as well as visitation (see Matter of Chesko v Chesko, 274 A.D.2d 729, 731, 710 N.Y.S.2d 721 [2000]). In any event, the legal standard for determining custody and visitation modifications is basically the same (see Matter of Engwer v Engwer, 307 A.D.2d 504, 505, 762 N.Y.S.2d 689 [2003]). Thus, the amendment did not create any prejudice and did not violate the grandmother's due process rights.ĒMack v. Grizoffi, -- A.D.3d -- (3d Depít Dec. 23, 2004).

 

Interim relief.ďThe Family Court, in chambers, conducted off-the-record ex parte discussions with the cousin and grandmother by telephone, in the absence of counsel, upon which it based its decision to award them temporary custody. Thus, the Family Court's decision regarding temporary custody lacks a sound and substantial basis in the record (see Matter of Millan v Vargas, 5 A.D.3d 602 [2d Depít 2004]; Kuncman v Kuncman, 188 A.D.2d 517, 518 [2d Depít 1992])Court erred in permitting childís cousin and grandmother to have custody during pending abuse proceeding.†† Matter of Toni G., 8 A.D.3d 379, 380 (2d Depít 2004)

 

Settlement.Stipulations favored and will not be lightly set aside, even if party was initially hesitant.(Note variance of this ruling from implication of conventional voir dire of settlements.)

 

ďWe initially reject respondent's contention that he was coerced into accepting this agreement. Despite his initial hesitation, the record reflects that respondent had ample opportunity to review the terms and conditions of the agreement with both counsel and Family Court and was freely able to object to its entry. As "'stipulations of settlement are favored by the courts and not lightly cast aside'" (Doppelt v Doppelt, 215 A.D.2d 715, 715, 627 N.Y.S.2d 75  [1995], quoting Matter of Galasso, 35 N.Y.2d 319, 321, 320 N.E.2d 618, 361 N.Y.S.2d  871 [1974]), when dealing with matters of custody, it must be shown that [750/51] there was an "unintended mistake of fact * * * [in that] the enforcement of the contract would be unconscionable, the mistake is material and was made despite the exercise of ordinary care by the party in error" (Matter of Goldman v Goldman, 201 A.D.2d 860, 861, 608 N.Y.S.2d 533 [1994]). No such showing was made here.Ē†† McCartha v. Williams, 3 A.D.3d 750, 750-51 (3d Depít 2004)

 

Right to counsel.Failure to advise respondent of her right to counsel in proceeding for modification of visitation is reversible error. ďFamily Ct Act ß 262 (a) provides that when parties contesting custody or visitation first appear, Family Court must advise them of their right to be represented by counsel, to have an adjournment to confer with counsel and to have counsel assigned by the court if they are financially unable to retain counsel. . . .ĒGrayson v.Fenton, 8 A.D.3d 696, 696 (3d Depít 2004)

 

Law Guardians -- conflict of interest.No error in assignment of former Law Guardian of another child of respondent as petitionerís counsel.Fralix v. Thornock, 8 A.D.3d 890 (4th Depít 2004)

 

Last updated January 8, 2005

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