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.
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
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
Full faith and
credit.
People ex rel. Cesario v. Cesario, 4 A.D.3d 493 (2d
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
Jurisdiction. UCCJEA.
Jurisdiction. NY has jurisdiction
under UCCJEA.
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
Amendment of
pleadings. “Family 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 § 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.” Mack v. Grizoffi, -- A.D.3d -- (3d Dep’t
Interim relief. “The 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
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.)
“We 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.” McCartha
v. Williams, 3 A.D.3d 750, 750-51 (3d
Right to
counsel. Failure to advise respondent of her right to
counsel in proceeding for modification of visitation is reversible error. “Family Ct Act § 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. . . .” Grayson v. Fenton, 8 A.D.3d 696, 696 (3d
Law Guardians -- conflict of
interest. No error in assignment of
former Law Guardian of another child of respondent as petitioner’s
counsel. Fralix
v. Thornock, 8 A.D.3d 890 (4th
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