Attorney Wendy B. Samuelson authored Recent Legislation, Decisions and Trends in Matrimonial Law, which appears in the New York State Bar Association's Family Law Review Spring 2017 edition. Below, are some highlights from Ms. Samuelson's quarterly column.
Court of Appeals: FAR Reports Not Eligible for Expungement
Corrigan v. New York State Office of Children & Family Services, 2017 N.Y. Slip Op. 01020 (2017: When the Office of Children and Family Services received a report of alleged educational neglect, it opted for a non-traditional CPS investigation under SSL § 427-a, the Family Assessment Response Track (FAR). The case was closed and CPS did not recommend services. The petitioners sought to have their names cleared through an expungement of the FAR report.
The request was denied because the statute does not allow for an expungement. The petitioners filed an Article 78 proceeding and the respondents moved to dismiss. The Supreme Court granted the respondents' motion. The case made it to the Court of Appeals, and the higher court affirmed, reasoning that only the legislature has the power to change the statute to allow for an expungement.
First Tri-Custody Arrangement is Granted in New York
The law provides that a nonbiological, and non-adoptive parent has no standing to request visitation of a child. In Dawn M. v. Michael M., 47 N.Y.3d 898 (N.Y. Sup. Ct. 2017), New York's first tri-custody arrangement was granted in a case where three parties were involved in a three-way relationship and the parties agreed to raise the child together as a family. Relying on the landmark case, Brooke S.B., the court ruled that it would be in the child's best interests if he were to continue a loving relationship with the non-biological, non-adoptive mother and granted her visitation rights.
Mother Obtains Custody Despite History of Substance Abuse & Financial Woes
In Snow v. Dunbar, 147 A.D. 3d 1242 (3d Dep't 2017), the unmarried parties had two children together. The mother sought custody of the children and the father crossed-petitioned for primary physical custody. When the couple lived together, the mother was the children's primary caretaker, and when she moved in with her now husband, she provided a suitable home for her children, despite her financial struggles and history of substance abuse. The court decided the substance abuse was irrelevant since it was too remote in time.
The Family Court awarded joint legal custody, and primary physical custody to the mother. The father appealed; however, the Family Court found that the father's control issues made shared custody unpractical, thus the mother maintained primary physical custody of the children.
Attorney Wendy B. Samuelson is an associate editor of the Family Law Review, and the column author of Recent Legislation, Decisions and Trends in Matrimonial Law.
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