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Matrimonial Matters: Some recent Fourth Department cases of note

Sara Stout Ashcraft

Sara Stout Ashcraft

The Appellate Division, Fourth Department recently rendered some interesting and informative family law decisions, summarized below.

‘In re Cassandra Washington’ (CA 13-00040)

This is a case in which the former foster parents of the child appealed the Family Court’s granting the child’s father’s motion to dismiss the foster parents’ petition. The Fourth Department unanimously affirmed the trial court’s decision that the former foster parents “lacked standing either to initiate their own custody proceeding or to intervene in the custody proceeding initiated by the [father].”

The Appellate Court also rejected the foster parents’ claim that they had standing based on “extraordinary circumstances,” and stated that, “evidence of the father’s arrest and incarceration, without more, did not meet the former foster parents’ burden of establishing such extraordinary circumstances.” The court concluded with: “Because the former foster parents have no standing in this proceeding, they lack standing to seek dismissal of [the father’s] petition, and the [trial] court therefore properly denied their cross motion to dismiss that petition.”

‘In re Wilfredo Lopez and Sandro Lopez’ (CA 13-00215)

The mother appealed the Family Court order that granted the father sole custody of the parties’ children. This case is of interest because it underlines what not to do in an appeal. Among other things, the mother sought to contest certain issues involving the children’s individual attorneys for the child (AFCs).

The mother wanted the Family Court’s denial of one of the AFC’s motions to withdraw from representation of the child overturned, and she wanted the Appellate Court to find that the AFC for the other child “failed to advocate for the [child’s] position regarding custody and visitation and thus failed to provide [him] with effective representation.”

In essence, the Fourth Department found that the mother failed to preserve her contentions in the appeal. The court pointed out that the mother’s notice of appeal limited her appeal “to the issues of custody, parenting time, contact with the mother’s husband and a grandparent’s visitation,” thus obviating her contentions regarding the AFCs. Further, the court stated, “It is the obligation of the appellant to assemble a proper record on appeal, which must include all the relevant papers that were before the motion court. The mother, as the appellant, submitted this appeal on an incomplete record and must suffer the consequences.”

In any event, the Fourth Department did address the mother’s claims that the AFCs failed abide by the requirement that “an AFC must zealously advocate the child’s position.” The court stated that, “an exception exists where, as here, the AFC is convinced … that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child,” and said that “both AFCs noted for the court that they were advocating contrary to their respective client’s wishes and both amply demonstrated the substantial risk of imminent, serious harm, including the mother’s arrest for possession of drugs in the children’s presence, the numerous weapons that had been seized from the mother’s house, and the credible evidence establishing that the mother’s husband assaulted one of the subject children who attempted to intervene when the husband attacked the mother with an electrical cord.” The court affirmed the award of custody of the children to their father and direction that the mother’s visitation with them be supervised.

‘Foti v. Foti’ (CA 13-00358)

In a divorce case, the defendant wife made a motion for partial summary judgment. At issue were several real estate and management entities which the wife claimed as her separate property. The wife was able to establish these entities as separate property gifted to her by her father. However, the Appellate Court held that there remained an issue of fact of whether the wife had comingled that separate property with marital property.

The Fourth Department reversed the trial court’s grant of summary judgment, stating that, “the parties filed a joint federal tax return in which the defendant reported her interest in the entities as tax losses, and, citing Mahoney Buntzman v. Buntzman (12 NY3d 415, 422), stated, “[a] party to litigation may not take a position contrary to a position taken in an income tax return.”

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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