Law Guardian motion in New York

2006In the Matter of Ruffel P., 153 Misc 2d 702 (Family Ct of New York, Orange Cty, 1992), a school PINS proceeding, the Court granted the Law Guardian's motion to dismiss in "the interests of justice." Without citing any authority, the Court stated in a footnote, at p. 706: "The mandate of the Family Court is to act in the best interest of the child when exercising its role as parens patriae' ." In the Matter of Kerri H., 193 Misc 2d 238 (Family Ct of New York, Seneca Cty, 2002), the Law Guardian moved to dismiss the petition, after admission, but before disposition, "in the interest of justice."

2002While the provisions of article 7 of the enactment do not provide a statutory ground for the Law Guardian’s motion to dismiss on such a ground, it is within the inherent authority of the court to dismiss “in the interests of justice.” Authority for dismissal on this ground is also implied under article 7 since the Legislature provided for such a basis for dismissal when it addressed the much more serious conduct of juvenile delin quents under the provisions of Family Court Act § 315.2 (Matter of Ruffel P., 153 Misc 2d 702, 704 [Fam Ct, NY County 1992]).

2010“A hearing is not automatically required whenever a parent seeks modification of a custody order” (Matter of Wurmlinger v Freer, 256 AD2d 1069 [1998]) and, here, the mother failed to “make a sufficient evidentiary showing of a change in circumstances to require a hearing” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418 [2003] [internal quotation marks omitted]; see Matter of Krest v Kawczynski, 9 AD3d 907 [2004]).

2010“A hearing is not automatically required whenever a parent seeks modification of a custody order” (Matter of Wurmlinger v Freer, 256 AD2d 1069 [1998]) and, here, the mother failed to “make a sufficient evidentiary showing of a change in circumstances to require a hearing” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418 [2003] [internal quotation marks omitted]; see Matter of Krest v Kawczynski, 9 AD3d 907 [2004]).

2008It is well settled that “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; Matter of Utica Mut.

2008Contrary to the contention of the father, Family Court does not have exclusive, continuing subject matter jurisdiction inasmuch as neither the parties nor the child presently reside in New York (see Domestic Relations Law § 76-a [1] [b]; see also Grahm v Grahm, 13 AD3d 324 [2004]; cf. Vernon v Vernon, 100 NY2d 960, 972 [2003]).

2008Contrary to the contention of the father, Family Court does not have exclusive, continuing subject matter jurisdiction inasmuch as neither the parties nor the child presently reside in New York (see Domestic Relations Law § 76-a [1] [b]; see also Grahm v Grahm, 13 AD3d 324 [2004]; cf. Vernon v Vernon, 100 NY2d 960, 972 [2003]).

2008We conclude that the court properly exercised its discretion in determining that Nebraska was a more appropriate forum for the custody dispute (see Domestic Relations Law § 76-f [1]; Matter of Eisner v Eisner, 44 AD3d 1111, 1113 [2007], lv denied 9 NY3d 816 [2007]; Clark v Clark, 21 AD3d 1326, 1327 [2005]), and we therefore affirm the orders in appeal Nos. 2 and 3.

2008We conclude that the court properly exercised its discretion in determining that Nebraska was a more appropriate forum for the custody dispute (see Domestic Relations Law § 76-f [1]; Matter of Eisner v Eisner, 44 AD3d 1111, 1113 [2007], lv denied 9 NY3d 816 [2007]; Clark v Clark, 21 AD3d 1326, 1327 [2005]), and we therefore affirm the orders in appeal Nos. 2 and 3.

2007Recommendations of court-appointed evaluators and the position of the Law Guardian are factors to be considered and are entitled to some weight, but are not determinative (see Matter of Fegadel v Anderson, 40 AD3d 1091 [2007]; Matter of Kozlowski v Mangialino, 36 AD3d 916 [2007]; Miller v Pipia, 297 AD2d 362 [2002]; Young v Young, 212 AD2d 114, 118 [1995]).

2007The court also properly precluded use of the child’s affidavit in the Family Court proceedings (see Campolongo v Campolongo, 2 AD3d at 476).

2006The value of forensic evaluations of both the children and the parents in custody and visitation disputes has “long been recognized by the courts of this [s]tate” (Stern v Stern, 225 AD2d 540, 541 [1996]).

2006To extend foster care placement under Family Ct Act former § 1055, the Law Guardian was required to establish, by a preponderance of the evidence, that the mother is presently unable to care for the child and that the continuation of foster care is in the child’s best interests (see Matter of Sal D., 307 AD2d 263, 264 [2003]; Matter of Vanessa Z., 307 AD2d 755, 756 [2003]; Matter of Glenn B., 303 AD2d 498 [2003]; Matter of Commissioner of Admin. for Children’s Servs. of City of N.Y., 254 AD2d 416, 416-417 [1998]).

2006In other words, the Law Guardian’s analysis of the case suffered from a similar fate as Family Court’s decision, namely, it was rendered without the benefit of a complete record and hence cannot be fairly characterized as “thorough” (Matter of Ratliff v Glanda, 263 AD2d 816, 818 [1999]) or “considered” (Matter of Carballeira v Shumway, 273 AD2d 753, 756 [2000], lv denied 95 NY2d 764 [2000]).

2006In other words, the Law Guardian’s analysis of the case suffered from a similar fate as Family Court’s decision, namely, it was rendered without the benefit of a complete record and hence cannot be fairly characterized as “thorough” (Matter of Ratliff v Glanda, 263 AD2d 816, 818 [1999]) or “considered” (Matter of Carballeira v Shumway, 273 AD2d 753, 756 [2000], lv denied 95 NY2d 764 [2000]).

2006Moreover, although not conclusive, the decision is in accord with the position advanced by the Law Guardian at the hearing and on appeal (see Matter of Smith v Hoover, supra at 1098; Matter of Goodale v Lebrun, 307 AD2d 397, 398 [2003]), and we have further considered the testimony adduced during the Lincoln hearing (see Matter of Norwood v Capone, 15 AD3d 790, 793 [2005], supra).

2006Moreover, although not conclusive, the decision is in accord with the position advanced by the Law Guardian at the hearing and on appeal (see Matter of Smith v Hoover, supra at 1098; Matter of Goodale v Lebrun, 307 AD2d 397, 398 [2003]), and we have further considered the testimony adduced during the Lincoln hearing (see Matter of Norwood v Capone, 15 AD3d 790, 793 [2005], supra).

2006To extend foster care placement under Family Ct Act former § 1055, the Law Guardian was required to establish, by a preponderance of the evidence, that the mother is presently unable to care for the child and that the continuation of foster care is in the child’s best interests (see Matter of Sal D., 307 AD2d 263, 264 [2003]; Matter of Vanessa Z., 307 AD2d 755, 756 [2003]; Matter of Glenn B., 303 AD2d 498 [2003]; Matter of Commissioner of Admin. for Children’s Servs. of City of N.Y., 254 AD2d 416, 416-417 [1998]).

2006Moreover, although not conclusive, the decision is in accord with the position advanced by the Law Guardian at the hearing and on appeal (see Matter of Smith v Hoover, supra at 1098; Matter of Goodale v Lebrun, 307 AD2d 397, 398 [2003]), and we have further considered the testimony adduced during the Lincoln hearing (see Matter of Norwood v Capone, 15 AD3d 790, 793 [2005], supra).

2006To extend foster care placement under Family Ct Act former § 1055, the Law Guardian was required to establish, by a preponderance of the evidence, that the mother is presently unable to care for the child and that the continuation of foster care is in the child’s best interests (see Matter of Sal D., 307 AD2d 263, 264 [2003]; Matter of Vanessa Z., 307 AD2d 755, 756 [2003]; Matter of Glenn B., 303 AD2d 498 [2003]; Matter of Commissioner of Admin. for Children’s Servs. of City of N.Y., 254 AD2d 416, 416-417 [1998]).

2005Morever, although not conclusive, we note that Family Court’s determination accords with the position taken by the Law Guardian at the hearing and before this Court (see Matter of Gregio v Rifenburg, supra at 832).