Child Custody + Family Law.

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Warning: Attorneys cannot guarantee outcomes of cases. MORT PROFESSIONAL EXPERIENCE Custody Decision Monroe County Family Court:[names changed]. Mort was Counsel for Susan Jones & Bob Robertson. Joan S. Kohout, J. DECISION A custody petition was filed in Monroe County Family Court by Susan Jones on December 12, 2006 requesting custody of her grandchildren Tom born January 27,2004, Dick, born June 27, 2002 and Larry, born July 10, 2001. On February 20, 2007 a second custody petition, filed by the children's maternal aunt and uncle, Lorraine and James Smith, was transferred to this court by Steuben County Family Court. The children's father, Richard Jones, was named as a respondent in both proceedings. Sally Jones, the children's mother, is deceased. A third custody petition was filed by the maternal grandmother Jane Libby. The three petitions were joined for trial. The trial occurred over various dates between March 28, 2007 and August 10, 2007. Delays occurred due medical problems experienced by Ms. Libby. A fourth petition was filed on March 28, 2007 by maternal grandfather Jack Upton also seeking custody of the children or alternatively, visitation. Since the trial on the other petitions has already commenced, Mr. Upton's petition has been carried along pending resolution of the other petitions. On August 9, 2007, Ms. Libby failed to appear for continuation of the trial. The court was advised that Ms. Libby had left New York State and her custody petition for was dismissed at that time based upon her failure to appear. At the conclusion of the trial, respondent Richard Jones urged the court to grant custody to his mother Susan Jones. The law guardian for the children has taken the position that although both petitioners are capable of raising the children, the Smiths should be granted custody because they are younger, in better health and Ms. Smith is home during the day. However, the law guardian states that she has no objection to Susan Jones receiving custody. FINDINGS OF FACT The children Tom, Dick and Larry were born to respondent Richard Jones and Sally Jones. On November 18, 2006 Sally Jones died outside of 1022 South Street, Rochester, New York, which was at the time the residence of paternal grandmother Susan Jones and her longtime companion Bob Robertson. Criminal charges are pending against respondent Richard Jones stemming from the death of Sally Jones. Mr. Jones is currently incarcerated as he awaits the trial on those charges. On the night of Ms. Jones' death, Susan Jones called 911 and Detective Sergeant Marcus Aurelius responded to the scene. The police officers entered the residence that night and spoke with Ms. Jones and other individuals in the home. The following day, Sunday November 19, 2006, Detective Sergeant Aurelius returned to Ms. Jones' home where the boys were staying accompanied by members of the Smith family and assisted with the transfer of the three subject children to paternal grandfather Mr. Upton and his two daughters Cindy and Lorraine. Ms. Jones testified that Lorraine Smith, one of the petitioners in this case, told her that Sally had said she wanted Lorraine to have the children if anything ever happened to her. Ms. Jones was extremely upset at that time and did not object to the children leaving with Mr. Upton and his daughters. Ms. Jones testified that she did not expect the Smiths to try to keep the children from her or file for permanent custody. On Monday November 20, 2006 the Smiths and Mr. Upton went to Steuben County Family Court where the Smiths filed a sworn petition seeking an ex parte temporary order of custody. The petition states that the children's mother was deceased and the father was in jail, but fails to provide the required information about where the children had been living over the prior five years, stating only that the children lived with the Smiths. Nothing in the petition indicated that the children had been with the Smiths only for one day or less, had always lived in Monroe County or had most recently been staying with their grandmother, Susan Jones. Based upon these papers, Steuben County Family Court granted Mr. and Mrs. Smith's ex parte request for temporary custody of the three children. From November 19, 2006 through June 29, 2007 the children lived full time with maternal aunt Lorraine Smith and her husband James Smith in Mount Morris, New York pursuant to the temporary order made in Steuben County. On June 29, 2007, after having commenced testimony, this court ordered that the children spend the summer with Ms. Jones. At the conclusion of the testimony on August 10,2007, based upon the testimony presented and the court's finding that further transfers of the children pending the court's final decision was contrary to their best interests, the court amended the temporary order and directed that the children reside with Susan Jones, that she be permitted to enroll them in school and that paternal grandfather Mr. Upton be granted certain visitation under his petition. Mr. Upton and the Smiths testified concerning their contacts with the children prior to the death of their mother. The children and the mother sometimes accompanied by the children's father Richard Jones visited relatives in Mount Morris on a regular. Occasionally, the Smiths came to Rochester to visit as well, with some visits occurring at the home of Susan Jones. All family members described these visits as cordial. Ms. Jones, who is a home health care aide for the Visiting Nurse Service, often saw the children on a daily basis. For three years, Ms. Jones, her companion Bob Robertson, the children and the parents lived in separate apartments in the same building. Ms. Jones was close to Sally Jones and Sally often brought the children over to the Jones home. Mr. Robertson was also close with the children and for a period of time before Sally's death was watching the children daily while Sally worked. All witnesses agreed that the three boys are well mannered and require little discipline. Family members each have favorite activities they enjoy with the children. Ms. Jones cooks for the boys, takes them to parks and feels that she has a special bond with her grandchildren. Bob Robertson gardens with the boys and goes to the playground. James Smith takes the children fishing. Lorraine Smith testified that she feels she can do more activities with the boys because she is young, age 25. Lorraine Smith testified to the care she provided for the children, including the school arrangements made for the children, medical care and a mental health assessment ordered by Steuben County Family Court. Unfortunately, arrangements were not made for the children to see Ms. Jones on a regular basis until April 2007. The Smith family receives social security benefits for the three boys. Apparently, through arrangements made by paternal grandfather Jack Upton, the social security funds do not go to Lorraine and James Smith but instead to Jack Upton's daughter, Cindy. According to Lorraine, Cindy is the social security payee because she [Lorraine] has a conviction for grand larceny concerning an incident that occurred two years ago when she and her mother stole money from a volunteer fire department. At first Ms. Smith suggested that she did not do anything wrong and that it was all part of a plan to get money for her mother. However, on cross-examination, Ms. Smith admitted that she signed checks made out to herself, cashed these checks and was required to pay restitution of $1,500. Ms. Smith's lack of candor, immaturity and attempt to minimize her role in the scheme to steal from the volunteer fire department calls into question her overall credibility. Ms. Jones, age 48, has been a home health aide with the Visiting Nurse Service for 18 years. While she has had some health problems in the past, they are under control at this time and she is able to care for the boys. Ms. Jones and Bob Robertson have lived together for 11 years. They have moved from the residence where the incident resulting in the death of Sally Jones occurred and presently live at 77 Rock Beach Road in Rochester. The home has a bedroom for the boys. Mr. Robertson is disabled and receives social security disability payments. He assists in caring for the boys and considers them to be his grandsons. Ms. Jones showed great insight into her gransons' circumstances and described how she talks with them about their mother and their past life. Ms. Jones does not take her son's side in the tragic death of the children's mother, but instead, in a neutral unpressured manner allows the children to speak of the past. DISCUSSION The court must determine what custodial arrangement will be in the children's best interest (see Friederwitzer v. Friederwitzer, 55 NY 2d 89 [1982]; Eschbach v. Eschbach, 56 NY 2d 167[1982]; see also People ex rel Teitler v. Haironson, 38 AD 2d 949 [2d Dept], aff'd 31 NY 2d 712 [1972]). Since the children's father, Richard Jones, does not seek custody, there is no requirement that the petitioners prove that extraordinary circumstances exist before the court considers the children's best interests (see Bennett v. Jeffreys, 40 NY 2d 543 [1976]). While Susan Jones is not entitled to any specific preference as a result of her status of grandparent, the court is aware that the legislature has recognized the unique role that grandparents play in the lives of their grandchildren by granting grandparents the right to seek custody and visitation in various circumstances (see Domestic Relations Law Section 762; Family Court Act Sections 1035[f] and 108[1-3]). In determining the children's best interest, the primary consideration is the ability of the petitioners to provide for the children's emotional and intellectual development, as well as the "quality of the home environment and the parental guidance provided" (Matter of Louise E.S. v. W.Stephen S., 64 NY2d 946, 947 [1985] citing Eschbach v. Eschbach, 56 NY 2d 167, 172 [1976]). In reviewing the totality of the circumstances of the parties, the court must consider the character and sincerity of the parties in the context of the children's best interests (see Eschbach v. Eschbach, 56 NY 2d at 173). It is also relevant to consider which party would be most likely to encourage a positive relationship with other family members (see Hildenbrand v. Hildenbrand 37 AD 2d 981, 982 [3rd Dept 2007]). In this case the court must determine which petitioner would be most inclined to allow the children access to the other side of the family and to nurture positive relationships for the children's benefit. The court agrees with the law guardian that both petitioners are capable of meeting the children's physical needs. In reviewing the past relationship of the petitioners and the children the court finds that Lorraine Smith overstated her past involvement with the children and that she and her husband prevented the children from visiting with Susan Jones for at least four months during the early stages of this case. Ms. Smith was evasive concerning her criminal history and demonstrated less insight into the children's emotional needs. Mr. Smith focused solely on the children's physical needs. Additionally, the court cannot ignore the misrepresentations made by the Smiths when they filed their custody petition in Steuben County Family Court, specifically their failure to state where the children had previously lived and to disclose that the children had only been in their care for one day or less (see Domestic Relations Law Section 76-h [1]). Susan Jones, on the other hand, showed great understanding for the grief and turmoil experienced by her grandchildren. In the court's view, what the children need most at this time is the love, patience and warmth that Ms. Jones is in the best position to provide. She has also demonstrated a willingness to cooperate with the maternal relatives so that the children can maintain those important relationships. Based upon the foregoing, the petition of Susan Jones is granted and she is awarded sole custody of the children Tom, Dick and Larry Jones. The petition of Lorraine and James Smith is dismissed. The court has specifically considered whether joint custody in this unique case would promote the children's best interest (see Matter of Florence B. v. Carol M., 152 Misc 2d 345 [Fam Ct Queens Cty 1991]), but has determined that the geographic distance between the residences of the petitioners and the history of the Smiths in keeping the children from Ms. Jones in the early days of these proceedings make joint custody inappropriate. Order to be prepared by counsel for Susan Jones within 30 days and to be submitted to the court on notice to all counsel. Signed at Rochester, New York on the 5th day of September, 2007. JOAN S. KOHOUT Family Court Judge * * * * * * * * * * * * *The next case was published in legal reports, so the names are not altered. In the Matter of David R., 101 Misc 2d 41, 420 NYS 2d 675 (New York County Family Court 1979). Mort represented the maternal grandmother as an assigned counsel. Leah R. Marks, J. In this case, the New York City Department of Social Services is petitioning the court for the approval of the transfer of the custody and care of David R. to the commissioner under a "Voluntary Placement Agreement" signed by the maternal grandmother on September 13, 1978. The agreement is the standard contract offered by the New York City Department of Social Services to persons who are not parents or guardians who allegedly volunteer to place a child in care. The case was tried on July 16, 1979. The petitioner, each parent, and the maternal grandmother were represented by separate counsel. An interpreter was appointed to assist the maternal grandmother. The child had been placed allegedly because of the parents' inability to cope with their responsibility and the grandmother's inability to care for the child who was under two months old, and about to be released from the hospital. The signing of the document, which is conceded, took place under the following circumstances: On September 13, 1978, a department agent witnessed the signature on the one and one-half page agreement in English of the maternal grandmother who allegedly volunteered to place the child. The maternal grandmother is fluent only in Spanish. Although she had come to the department's office with a relative who was fluent in English, the department's agent took her to a separate room for the signing. No interpreter was present. No inquiry took place as to whether the grandmother had custody of the child who was hospitalized at the time. The department agent allegedly explained the one and one-half page document to the grandmother. There was almost no discussion of the meaning of the agreement. However, the grandmother supplied the names and addresses of the parents which were correctly entered into the document. Each parent had been visiting the child regularly, but no effort was made to contact them before accepting the placement. This proceeding is brought under section 358-a of the Social Services Law. THE LEGISLATIVE HISTORY OF THAT SECTION INDICATES THAT THE MAIN REASON FOR GIVING THE FAMILY COURT JURISDICTION OVER VOLUNTARY PLACEMENT AGREEMENTS IS TO GUARANTEE FEDERAL AID FOR EXPENDITURES MADE BY SOCIAL SERVICES DISTRICTS FOR THE CARE AND MAINTENANCE OF DEPENDENT CHILDREN IN FOSTER CARE WHO WOULD, UNDER OTHER CIRCUMSTANCES, BE ELIGIBLE FOR AID TO DEPENDENT CHILDREN.[emphasis supplied by Webmaster] Under that section, if Federal aid is to be forthcoming, the court must find that it would be contrary to the welfare of the child for the child to live in the home of the parent or guardian. However, before the court can consider the needs of the child it must decide if a real contract exists under section 384-a of the Social Services Law. The issues in dispute are whether the grandmother had the requisite understanding or right to place the child that would permit the court to hold that the agreement in question is a binding contract and whether, even if a binding contract existed, the department had a right to keep the child after the parents asked for the child's return. THE ESSENTIAL TERMS OF THE CONTRACT This contract is a one and one-half page, single-spaced document, used regularly by the Department of Social Services for a person entrusted with the care of a child. So many matters are mentioned within the contract, some of which are clearly not essential to the contract, that it is necessary for the court to decide what matters constitute the essential terms that must be understood if the person signing is to be held to have given voluntary, informed consent as a party to a contract. The court finds that the following are the essential terms and conditions that must be understood by both parties signing this agreement: (1) The person placing the child must have some rights as custodian to place the child. (2) The child will live away from home. (3) The Commissioner of Social Services will have full power over the child's life in the future, including the powers to choose the child's residence as well as the kinds of education, medical and other care that the child will receive. (4) The child will be returned upon the request of the parent or legal guardian who is not bound by this contract.[footnote 1. Subdivision 1 of section 384-a of the Social Services Law says "[s]uch transfer by a person who is not the child's parent or guardian shall not affect the rights or obligations of the parents or guardian'. (See,also, Goldenberg v Bartell Broadcasting Corp., 47 Misc 2d 105.)] (5) The commissioner has the right to refuse to return the child to the person placing the child, and the person will have to go to court for the return in that case. (6) This document is a legal contract. An informed custodian may amend the form contract with the department's approval, but no amendments took place in this case. THE UNDERSTANDING OF THESE ESSENTIAL TERMS (1) The grandmother may have thought she had custody of the child. The department did not investigate the situation. However, it was known that the child was in a hospital, and the parents were visiting regularly at the time of the signing. The department should have known from those facts that the grandmother was unlikely to be a proper party to a placement agreement. (2) The parties fully understood that the child would live away from home (3) Although the contract says, "I grant permission to the Commissioner of Social Services to place the child in a child care setting that he determines to be suitable for this child's care," the department agent did not discuss the commissioner's power in relation to the child's education, medical and other care. Nothing in the testimony by either side indicates that this essential understanding was present. (4) Even the petitioner failed to understand that the right of the parents to immediate return of their child was not affected by this contract as proven by the failure of the petitioner to return the child upon demand. (5) The contract says, "If the Commissioner of Social Services concludes after investigation that return of the child to the care of the person who placed the child would be contrary to the child's best interests, he shall so notify the person who placed the child within twenty (20) days of the date of the request for return". The grandmother could not have understood this because the facts surrounding the signing deprived her of any chance for adequate explanation. Even a reading of the contract in English by those familiar with the language might not awaken the reader to the fact that the commissioner has such tremendous power. (6) Although those familiar with the English language, probably those somewhat sophisticated, know that the word "agreement" in documents is synonymous with "contract", this Spanish-speaking woman cannot be held to have such knowledge. Nowhere in this "Voluntary Placement Agreement by Person Entrusted with Care of Child" is the word "contract" used. The word "agreement" is used four times exclusive of the title. In addition, the facts of the signing deprived her of any adequate explanantion. THERE IS NO CONTRACT IN THIS CASE A. THE GRANDMOTHER'S RIGHT TO CONTRACT The facts show the grandmother had no right to place the child. She may have believed full responsibility for the child was about to be given her, but she did not have that responsibility yet. The department knew that from the facts or ought to have known it. There can be no contract where one party is without authority and the other ought to have known it. B. THE LANGUAGE PROBLEM Even if the grandmother were a proper party, if the signer is ignorant of the language of the writing, and the contents thereof are misread or misrepresented to him by the other party, unless the signer be negligent, the writing is void. (Pimpinello v Swift & Co., 253 NY 159; National Bank of North Amer. v Chu, 64 AD 2d 573; Nadal v Childs Securities Corp., 18 AD 2d 375, 377; Albarello v Meier, 5 Misc 2d 193, 195; City Bank Farmers Trust Co. v. B.W. Constr. Corp., 19 Misc 2d 593.) In this case, no one discussed some of the essential terms of the agreement. The facts of the case, most significantly the failure to permit the English-speaking companion to remain with the grandmother, result in a finding of deliberate misrepresentation on the part of the petitioner. We are dealing here with a situation in which the grandmother was ignorant of the language of a document on which her signature was placed, although a Spanish version was available. There can be no finding of negligence on the part of the grandmother in failing to obtain legal assistance or otherwise obtaining full information about the document. Given the facts of the case, she was never permitted to obtain help as a result of the methods used in obtaining her signature. This instrument, contrary to what one might assume from the procedures used in executing the document, is a complicated document presenting difficulties even for those trained in reading such instruments. This may be proven by the fact that the petitioner also seems ignorant of the meaning of the agreement, having failed to return the child to the parents, neither of whom was a party to the placement or could legally be bound thereby under either the statute, common law or common sense. C. THERE IS NO CONTRACT WHERE ONE PARTY KNEW OR HAD REASON TO KNOW THAT THE OTHER IS LABORING UNDER A MISTAKE Here we have printed words on a form made out by the petitioner. Thus, it is the commissioner alone who chose the terms, including the very different procedure for returning a child to a custodian. A written instrument prepared by one party to the contract should be strictly construed against that party.[citation omitted] That factor alone may be so important the the resulting doubts as to understanding may lead to the conclusion that no contract exists. Of course, for this conclusion to be reached, the party choosing the words must have reason to know that the other was laboring under a mistake. In this case, where the grandmother spoke only Spanish, where the department's agent did not use an official interpreter and denied access to the grandmother's own interpreter, the department must be held to be on notice that there was good reason to believe that the grandmother was laboring under a mistake. Still, proof of mistake must be strong and convincing. In this case, it has been shown that the grandmother's failure to understand seems to have been caused by the petitioner purposely rather than innocently; as a result there is no contract. (United States v. Jones, 176 F 2d 278, 285; WPC Enterprises v United States, 323 F 2d 874; Hester v New Amsterdam Cas. Co., 268 F Supp 623.) THE BEST INTERESTS OF THE CHILD The law states that where a contract exists, the court should grant the petition only if the best interests of the child were served by placement at the time of the execution. There is no dispute in this case that the petitioner failed to contact either available parent to determine whether placement should have been accepted at the time the alleged contract was signed. In fact, all evidence indicates that if the petitioner had attempted to talk with either parent to find out whether other plans were feasible, the child would never have been placed and no agreement ever would have been signed. There is no evidence that placement was in the best interests of the child. The court cannot uphold such alleged agreements merely because the State will lose reimbursement from the Federal Government if there is no legal contract. No matter how desirable such reimbursement may be in the State's present financial condition, we cannot encourage a procedure under which a grandmother is permitted to place a child without having full understanding of the consequences were she the proper person to place. Such agreements can fulfill a valid public purpose for children where the parties have the right to contract and are thoroughly advised as the the essential terms of the agreement, and where the child needs services obtainable only away from home. But, without that clarity, approval of such an agreement can only mean the taking of children without due process. Such approval can only encourage workers to persuade adults to place children instead of offering them needed services or investigating the facts at all. In this case a child has been kept in placement illegally from the signing of the agreemehnt on September 13, 1978 until this trial on July 16, 1979. Even under the terms of the contract, holding the child was unconscionable. The petition is hereby dismissed. [In fact the petition was dismissed on July 16, 1979, to avoid further passage of time before return of the child to the parents.] * * * * * Experienced in Contested Child Support Hearing The Court Hon. Debra Gerber Farber, stated that "All support cases involve imputed [imagined potential]income and that my objection to lack of Notice until trial was denied. I should have known. Monroe County DHS lawyer Ms Bardis asked for imputed income from me of $30,000, ie, 6000 in child support when I am unemployed/partially disabled, the mother failed to appear for the hearing residing in a shelter. The gross figure of 6000 is not on its face unreasonable unless you conclude that Non custodial parent can only earn about an average of that much for the last five years. WHAT IS WRONG WITH THIS PICTURE??? The government sticks its nose in my business and demands something unreasonable and I don't know where my children are. If I grossed 150000 a year practicing law and my expenses were 75000 {not unreasonable} the Court could imagine [impute] that I should be earning 350000 gross and impose child support of 25% of that. Where's Alice in Wonderland. I have had many men calling me saying they cannot find an attorney to represent them on child support for all of the above reasons: you cannot win. *** A clever person turns great troubles into little ones and little ones into none at all. Chinese Proverb. Member International Child Abduction Attorney Network 2009. Domain: notguiltylawyer.net