Matter of B. v J.
2018, NY Slip Op. 02148
L.B., Petitioner, Respondent.
Matter of B. v J.
2018, NY Slip Op. 02148
L.B., Petitioner, Respondent.
June 21, 2017
This case calls upon the Appellate Court to consider the validity of a rule that was decided 25 years ago, in the Matter of Alison D. (77 NY2d 651 ). In this case, an unmarried same-sex couple questioned the rights of responsibilities of having a child, in light of the fact that there was no biological connection between one of the parents and the child. This case discussed the rule that with an unmarried couple, a partner without a biological connection to a child is not considered the child’s parent in terms of standing to bring an action for custody or visitation due to the Domestic Relations Law sec. 70, 77 NY 2d 655). The Petitioners in this case ask for custody and visitation of the child. This court agrees that the rule that has been used through the years regarding this issue is no longer workable.
The parties entered into a romantic relationship and moved in with each other. In 2007, the Petition and Respondent registered as partners and later decided to have a child through artificial insemination. In February of 2008, the Respondent became pregnant. The Respondent had a child, and the Petitioner was there to support the Respondent in every way. The next several years were spent raising the child. But in 2012, they unfortunately decided to end their relationship.
In October of 2012, they began an action seeking child support from the Petitioner. The Petitioner denied any liability in the matter, and also countersued for visitation.
Petitioner was an incarcerated in the New York correctional system and has admitted paternity of a child. He started this proceeding to establish visitation with his child after the mother would allow the child to visit their father in prison. The family court granted the petition, awarding periodic short visits with the child, who was three years old at the time.
The family court noted that the law in New York presumes visitation with a noncustodial parent to be in the child’s best interests. The fact that the parent is incarcerated is not an automatic reason for blocking visitation.
The court determined that the father was involved in the child’s life in a meaningful way prior to him being incarcerated. The father seeks to maintain this relationship. The court has felt that the child was old enough to travel, and would benefit from the relationship. The court also felt that the length of the father’s incarceration would be detrimental to the relationship.
This case calls on the court to assess the continued fairness of a rule discussed originally in a case known as the Matter of Alison D in Virginia (77 NY 2d 651 / Where an unmarried couple has a child, and one partner doesn’t have a biological connection to the child. This affects the child’s parent in terms of standing to seek custody and visitation pursuant to Domestic Relations Law section 70 (77 NY 2d 655). The petitioners seek custody and visitation in the present case. The court agrees that the definition of a parent as established in the older case has now become unfair.
The Petitioner and Respondent were involved in a romantic relationship back in 2006 and subsequently announced their engagement. It was only just a gesture because legally at the time the couple could not get married. Same-sex marriage was not legal in New York, and they did not have the resources to travel out of state.
They decided to have a child together. In 2008, the respondent became pregnant via artificial insemination. The Petitioner was involved throughout the pregnancy. They raised the child jointly as a couple. However, in 2013, their relationship ended.
Legal counsel said that, the current motion by Petitioner is to vacate a determination of the Nassau County Department of Consumer Affairs (DCA) to the effect that Plaintiff Corporation was an unlicensed home improvement contractor in violation of the Nassau County Administrative Code. The Cross-motion, denominated a motion by the Respondent, is to confirm the determination of the DCA.
The related action is by plaintiff to recover $90,000 held in escrow after the transfer of title to a single family residence from North Sea to the respondent. The $90,000 included $65,000 which was due to plaintiff on receipt of a Certificate of Completion, and $25,000 for work to be completed after the transfer of title. This Court has previously awarded plaintiff a judgment in the amount of $65,000. The respondent filed a complaint with the DCA that plaintiff was not entitled to payment because they were operating as an unlicensed home improvement contractor in violation of Local Law 6-1970, § 21-11.2.1 The parties appeared for a hearing before Hearing Officer, on June 19, 20082, and a determination was rendered on June 22, 2008. It found Elm Sea in violation of the ordinance and fined them $500.3 A Nassau Order of Protection Lawyer said that, plaintiff appealed and a final determination was rendered on July 9, 2008.4 The Commissioner of the Office of Consumer Affairs rejected the arguments of plaintiff that the work performed on the residence after the closing was in accordance with a contract of sale in which plaintiff, as owner, agreed to perform work on the premises prior to closing. The Commissioner distinguished between the work done before the transfer of title, when plaintiff was arranging for work on its own home, and work done in accordance with a “punch list”. The Respondent concluded that the change order was a contract for home improvement for which a license was required.
The Court concludes that the determination by the Respondent that the “Punch List” constituted a separate and distinct home improvement contract requiring a license for performance is unreasonable. The determination is vacated and the fine in the amount of $500 is set aside. There is no controversy but that the work done by Elm Sea on the home to which it took title on September 1, 20066 did not require a home improvement license. The work was done in accordance with necessary permits and was approved by issuance of certificates of completion.
This was a case before the Supreme Court of the State of New York in Kings County.
It involved a Notice of Motion, Order to Show Cause, Petition and Cross Motion where the court was called upon to determine (1) whether the attorney for the defendant’s application to be relieved as attorney of record should be granted; (2) if the defendant’s applications brought pro se while still represented by counsel were properly before the court; (3) whether or not the defendant was entitled to a 30 day stay of all proceedings in the event counsel was relieved pursuant to CPLR 321(c); (4) whether or not the defendant was entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of custody, visitation and an order of protection; (5) whether or not the defendant should have had the benefit of a court assigned interpreter; (6) the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.
The counsels of defendant’s application to be relieved:
Mr. H married Mrs. C on August 21, 1975. They had two children from that marriage. K born July 16, 1976 (13) and A born June 25, 1978 (11). Mr. H and Mrs. C were divorced on April 3, 1985 and both children presently reside with their natural mother, respondent, Mrs. C. H then married petitioner M on June 8, 1986. They also have two children: AY born April 8, 1987 (2) and IY born September 29, 1988 (1). Petitioner, M also has a child from a prior marriage, N born December 18, 1980 (9), who resides with her, Mr. H, AY and IY.
According to the terms of the April 3, 1985 judgment of divorce which incorporated a separate agreement entered into by C and H, C, was granted custody of the two children, K and A, while H was granted visitation rights. On more than one occasion, H violently assaulted Mrs. C resulting in numerous Orders of Protection from the Kings County Family Court. C thereafter brought an Order to Show Cause in October 1988, inter alia to suspend visitation by H. In this Order to Show Cause, the request was made for a temporary restraining order restraining H from undertaking visitation. This T.R.O. was stricken by Justice MS when the Order to Show Cause was signed. However, the Appellate Division reinstated this T.R.O.
The motion came to be heard before Judicial Hearing Officer DC. After a hearing J.H.O. DC rendered a decision on June 30, 1989, stating that there is no question that defendant, [Mr. H] did violently and viciously attack and severely bruise and injure the plaintiff Mrs. C in the presence of his children who were struck several times.
In an action in which a judgment of the Supreme Court, Kings County, was entered, Inter alia, granting plaintiff and defendant a divorce, defendants appeal from an order of the same court, dated July 27, 1978, which, upon plaintiff’s motion, “resettled and clarified” the judgment of divorce, by (1) amending and reducing defendant H’s visitation privileges, and (2) amending a provision whereby plaintiff would be responsible for certain hospitalization expenses incurred by defendant.
By judgment of the Supreme Court, plaintiff, Mr. H, and defendant Mrs. H were both granted a divorce. That judgment awarded temporary custody of the couple’s son to plaintiff. Mrs. H was to have visitation on the first, second and fourth weekends of each month, as well as on certain other days. The judgment further provided as follows:
“ORDERED, ADJUDGED and DECREED, that the plaintiff will pay any hospitalization fees in the event that the defendant is committed to a psychiatric hospital by a duly certified psychiatrist; that the plaintiff’s attorney shall receive a doctor’s prescription of the defendant’s need and a further copy furnished to this Court”.
In a related visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Nassau County, dated November 30, 2012, as, after a hearing, in effect, granted his petition to modify an order of visitation dated January 14, 2010, only to the extent of awarding him supervised daytime visitation.
An order dated January 14, 2010, the Family Court awarded the father, who lives in Texas, unsupervised visitation with the subject child in New York, including overnight visitation during various school holidays. The only restrictions upon the father’s visitation were that a social worker would monitor exchanges of the subject child and would have to pre-approve any accommodations chosen by the father for overnight visitation. At one point, the Family Court modified the visitation order by suspending overnight visitation. However, on a prior appeal, this Court reversed that order of the Family Court, thereby effectively reinstating overnight visitation.
In October 2010, the father filed a petition to modify the order of visitation dated January 14, 2010 (hereinafter the January 2010 visitation order), so as to eliminate the involvement of a social worker in monitoring exchanges of the subject child and approving accommodations for overnight visitation. In opposing the father’s petition, the attorney for the child requested that any parenting time should be of short duration and at specific locations. The attorney for the child did not request supervised visitation. In an order dated December 7, 2010, the Family Court, in effect, denied the father’s petition to modify and granted the application of the attorney for the child to modify the January 2010 visitation order so as to limit the father’s parenting time to brief unsupervised visits at specific, public places.