Mother challenge in New York

2014“Inasmuch as the mother does not challenge Family Court’s finding that a change in circumstances existed, we need only address whether it was in the child[ren]’s best interests to award sole custody to the father” (Matter of Dubuque v Bremiller, 79 AD3d 1743, 1744 [2010]).

2014“Inasmuch as the mother does not challenge Family Court’s finding that a change in circumstances existed, we need only address whether it was in the child[ren]’s best interests to award sole custody to the father” (Matter of Dubuque v Bremiller, 79 AD3d 1743, 1744 [2010]).

2014We note at the outset that, contrary to the mother’s contention, the gaps in the trial transcript resulting from inaudible portions of the audio recording are not so significant as to preclude meaningful review of the order on appeal (see Matter of Devre S. [Carlee CJ, 74 AD3d 1848, 1849 [2010]; cf. Matter of Alessio v Burch, 78 AD3d 1620, 1620 [2010]).

2014We note at the outset that, contrary to the mother’s contention, the gaps in the trial transcript resulting from inaudible portions of the audio recording are not so significant as to preclude meaningful review of the order on appeal (see Matter of Devre S. [Carlee CJ, 74 AD3d 1848, 1849 [2010]; cf. Matter of Alessio v Burch, 78 AD3d 1620, 1620 [2010]).

2014We note at the outset that, contrary to the mother’s contention, the gaps in the trial transcript resulting from inaudible portions of the audio recording are not so significant as to preclude meaningful review of the order on appeal (see Matter of Devre S. [Carlee CJ, 74 AD3d 1848, 1849 [2010]; cf. Matter of Alessio v Burch, 78 AD3d 1620, 1620 [2010]).

2014We note at the outset that, contrary to the mother’s contention, the gaps in the trial transcript resulting from inaudible portions of the audio recording are not so significant as to preclude meaningful review of the order on appeal (see Matter of Devre S. [Carlee CJ, 74 AD3d 1848, 1849 [2010]; cf. Matter of Alessio v Burch, 78 AD3d 1620, 1620 [2010]).

2024Contrary to the father's contention, a finding of neglect against the mother is not a bar to her being awarded custody, especially where she completed all the required services in connection with the neglect proceedings, separated from the abusive partner, had the younger child returned to her care without ACS supervision, and demonstrated a good deal of insight into the reasons why the children were removed from her care ( see Matter of Maiea P. , 49 AD3d 291, 292 [1st Dept 2008]).

2024Contrary to the father's contention, a finding of neglect against the mother is not a bar to her being awarded custody, especially where she completed all the required services in connection with the neglect proceedings, separated from the abusive partner, had the younger child returned to her care without ACS supervision, and demonstrated a good deal of insight into the reasons why the children were removed from her care ( see Matter of Maiea P. , 49 AD3d 291, 292 [1st Dept 2008]).

2019Thus, the mother may not challenge the permanent neglect determination ( see Matter of Adele T. [Kassandra T.] , 143 AD3d at 1203-1204 ; Matter of Semonae YY. , 239 AD2d 716, 716-717 [1997]; see also Matter of Deshane v Deshane , 123 AD3d at 1244 ). [FN2] We reject the mother's contention that she was deprived of the effective assistance of counsel by her counsel's failure to move to vacate the default.

2018The appropriate procedure for the mother to challenge the default order would have been for her to move in Family Court, pursuant to CPLR 5015 (a), "to vacate the default and, if said motion [were] denied, take an appeal from that order" ( Matter of Jesse DD. v Arianna EE. , 150 AD3d 1426, 1427 [2017]; see Matter of Deshane v Deshane , 123 AD3d 1243, 1244 [2014], lv denied 25 NY3d 901 [2015]).

2014Respondent failed to preserve his arguments regarding a due process violation and his right to a hearing on the motion (see Matter of Kleevuort C. [Fredlyn V.], 84 AD3d 1371, 1371 [2d Dept 2011]).

2014Respondent failed to preserve his arguments regarding a due process violation and his right to a hearing on the motion (see Matter of Kleevuort C. [Fredlyn V.], 84 AD3d 1371, 1371 [2d Dept 2011]).

2013The home state is of “paramount importance” in determining jurisdiction in custody proceedings (Matter of Michael McC. v Manuela A., 48 AD3d 91, 95 [1st Dept 2007], lv dismissed 10 NY3d 836 [2008]).

2013The home state is of “paramount importance” in determining jurisdiction in custody proceedings (Matter of Michael McC. v Manuela A., 48 AD3d 91, 95 [1st Dept 2007], lv dismissed 10 NY3d 836 [2008]).

2023The mother is aggrieved by that finding despite her consent to the disposition ( see Noah C. , 192 AD3d at 1676-1677 ), and the fact that the child has attained the age of majority does not render this appeal academic inasmuch as "[a] determination of neglect creates a permanent and significant stigma which is capable of affecting a parent's status in potential future proceedings" ( Matter of Jesus M. [Jamie M.] , 118 AD3d 1436 , 1437 [4th Dept 2014], lv denied 24 NY3d 904 [2014] [internal quotation marks omitted]; see Matter of Eliora B. [Kennedy B.] , 146 AD3d 772, 773 [2d Dept 2017]).

2023We note that the mother does not challenge the stipulated dispositions with respect to the children, and that the mother's challenges in all five appeals to the findings of abuse and derivative abuse are properly before us inasmuch as the mother is "aggrieved by the court's findings of [abuse and derivative abuse]" despite her consent to the dispositions ( Matter of Noah C. [Greg C.] , 192 AD3d 1676, 1677 [4th Dept 2021]; see Matter of Vashti M. [Carolette M.] , 214 AD3d 1335, 1335 [4th Dept 2023], appeal dismissed 39 NY3d 1177 [2023]).

2011Contrary to the mother’s contention, we conclude that the court’s best interests determination is supported by a sound and substantial basis in the record and that the court did not abuse its discretion in awarding primary physical custody to the father (see Matter of Deborah E.C. v Shawn K., 63 AD3d 1724, 1725 , lv denied 13 NY3d 710 ; Matter of Khaykin v Kanayeva, 47 AD3d 817 ).

2011Contrary to the mother’s contention, we conclude that the court’s best interests determination is supported by a sound and substantial basis in the record and that the court did not abuse its discretion in awarding primary physical custody to the father (see Matter of Deborah E.C. v Shawn K., 63 AD3d 1724, 1725 [2009], lv denied 13 NY3d 710 [2009]; Matter of Khaykin v Kanayeva, 47 AD3d 817 [2008]).

2026The recording produced by the mother at the hearing was not dispositive and simply created an issue of credibility, which was properly resolved by the court ( see Matter of Theresa M. v Antoine A. , 154 AD3d 414, 415 [1st Dept 2017]).

2026The recording produced by the mother at the hearing was not dispositive and simply created an issue of credibility, which was properly resolved by the court ( see Matter of Theresa M. v Antoine A. , 154 AD3d 414, 415 [1st Dept 2017]).

2025The mother does not challenge Family Court's finding that she neglected J.D.M. by failing to ensure that the child received ongoing mental health treatment, which led to her psychiatric hospitalization following an aborted suicide attempt in 2017 ( see Matter of Ivania L.V. [Liz C.] , 139 AD3d 542, 542 [1st Dept 2016]).

2025The mother does not challenge Family Court's finding that she neglected J.D.M. by failing to ensure that the child received ongoing mental health treatment, which led to her psychiatric hospitalization following an aborted suicide attempt in 2017 ( see Matter of Ivania L.V. [Liz C.] , 139 AD3d 542, 542 [1st Dept 2016]).

2024Since the orders of protection expired by their own terms on September 1, 2024 ( see Matter of Kristine Z. v Anthony C. , 43 AD3d 1284, 1284-1285 [4th Dept 2007], lv denied 10 NY3d 705 [2008]), and the mother does not challenge the family offense findings underlying such orders ( compare Matter of Veronica P. v Radcliff A. , 24 NY3d 668, 671 [2015]; Matter of Zaytseva v Frazier , 214 AD3d 895, 896 [2d Dept 2023]; Matter of Marquardt v Marquardt , 97 AD3d 1112, 1113 [4th Dept 2012]), this argument is moot. [FN3] The mother's remaining contentions, to the extent not expressly addressed, have bee

2024Since the orders of protection expired by their own terms on September 1, 2024 ( see Matter of Kristine Z. v Anthony C. , 43 AD3d 1284, 1284-1285 [4th Dept 2007], lv denied 10 NY3d 705 [2008]), and the mother does not challenge the family offense findings underlying such orders ( compare Matter of Veronica P. v Radcliff A. , 24 NY3d 668, 671 [2015]; Matter of Zaytseva v Frazier , 214 AD3d 895, 896 [2d Dept 2023]; Matter of Marquardt v Marquardt , 97 AD3d 1112, 1113 [4th Dept 2012]), this argument is moot. [FN3] The mother's remaining contentions, to the extent not expressly addressed, have bee

2024Since the orders of protection expired by their own terms on September 1, 2024 ( see Matter of Kristine Z. v Anthony C. , 43 AD3d 1284, 1284-1285 [4th Dept 2007], lv denied 10 NY3d 705 [2008]), and the mother does not challenge the family offense findings underlying such orders ( compare Matter of Veronica P. v Radcliff A. , 24 NY3d 668, 671 [2015]; Matter of Zaytseva v Frazier , 214 AD3d 895, 896 [2d Dept 2023]; Matter of Marquardt v Marquardt , 97 AD3d 1112, 1113 [4th Dept 2012]), this argument is moot. [FN3] The mother's remaining contentions, to the extent not expressly addressed, have bee

2024Since the orders of protection expired by their own terms on September 1, 2024 ( see Matter of Kristine Z. v Anthony C. , 43 AD3d 1284, 1284-1285 [4th Dept 2007], lv denied 10 NY3d 705 [2008]), and the mother does not challenge the family offense findings underlying such orders ( compare Matter of Veronica P. v Radcliff A. , 24 NY3d 668, 671 [2015]; Matter of Zaytseva v Frazier , 214 AD3d 895, 896 [2d Dept 2023]; Matter of Marquardt v Marquardt , 97 AD3d 1112, 1113 [4th Dept 2012]), this argument is moot. [FN3] The mother's remaining contentions, to the extent not expressly addressed, have bee

2024Thus, the issue "distills to whether the award of sole custody to the father is in the child's best interests, an inquiry that requires examination of such relevant facts as the home environment of each parent, the relative fitness of the parents, the parents' past performance and ability to provide for the child's overall well-being, how faithful each party has been to prior court orders, the child's wishes and the willingness of each parent to foster a positive relationship between the child and the other parent" ( Matter of Brent O. v Lisa P. , 161 AD3d 1242 , 1243 [3d Dept 2018] [internal

2024Thus, the issue "distills to whether the award of sole custody to the father is in the child's best interests, an inquiry that requires examination of such relevant facts as the home environment of each parent, the relative fitness of the parents, the parents' past performance and ability to provide for the child's overall well-being, how faithful each party has been to prior court orders, the child's wishes and the willingness of each parent to foster a positive relationship between the child and the other parent" ( Matter of Brent O. v Lisa P. , 161 AD3d 1242 , 1243 [3d Dept 2018] [internal

2024Since the orders of protection expired by their own terms on September 1, 2024 ( see Matter of Kristine Z. v Anthony C. , 43 AD3d 1284, 1284-1285 [4th Dept 2007], lv denied 10 NY3d 705 [2008]), and the mother does not challenge the family offense findings underlying such orders ( compare Matter of Veronica P. v Radcliff A. , 24 NY3d 668, 671 [2015]; Matter of Zaytseva v Frazier , 214 AD3d 895, 896 [2d Dept 2023]; Matter of Marquardt v Marquardt , 97 AD3d 1112, 1113 [4th Dept 2012]), this argument is moot. [FN3] The mother's remaining contentions, to the extent not expressly addressed, have bee

2024Since the orders of protection expired by their own terms on September 1, 2024 ( see Matter of Kristine Z. v Anthony C. , 43 AD3d 1284, 1284-1285 [4th Dept 2007], lv denied 10 NY3d 705 [2008]), and the mother does not challenge the family offense findings underlying such orders ( compare Matter of Veronica P. v Radcliff A. , 24 NY3d 668, 671 [2015]; Matter of Zaytseva v Frazier , 214 AD3d 895, 896 [2d Dept 2023]; Matter of Marquardt v Marquardt , 97 AD3d 1112, 1113 [4th Dept 2012]), this argument is moot. [FN3] The mother's remaining contentions, to the extent not expressly addressed, have bee

2024Since the orders of protection expired by their own terms on September 1, 2024 ( see Matter of Kristine Z. v Anthony C. , 43 AD3d 1284, 1284-1285 [4th Dept 2007], lv denied 10 NY3d 705 [2008]), and the mother does not challenge the family offense findings underlying such orders ( compare Matter of Veronica P. v Radcliff A. , 24 NY3d 668, 671 [2015]; Matter of Zaytseva v Frazier , 214 AD3d 895, 896 [2d Dept 2023]; Matter of Marquardt v Marquardt , 97 AD3d 1112, 1113 [4th Dept 2012]), this argument is moot. [FN3] The mother's remaining contentions, to the extent not expressly addressed, have bee

2024Since the orders of protection expired by their own terms on September 1, 2024 ( see Matter of Kristine Z. v Anthony C. , 43 AD3d 1284, 1284-1285 [4th Dept 2007], lv denied 10 NY3d 705 [2008]), and the mother does not challenge the family offense findings underlying such orders ( compare Matter of Veronica P. v Radcliff A. , 24 NY3d 668, 671 [2015]; Matter of Zaytseva v Frazier , 214 AD3d 895, 896 [2d Dept 2023]; Matter of Marquardt v Marquardt , 97 AD3d 1112, 1113 [4th Dept 2012]), this argument is moot. [FN3] The mother's remaining contentions, to the extent not expressly addressed, have bee

2023We note that the mother does not challenge the stipulated dispositions with respect to the children, and that the mother's challenges in all five appeals to the findings of abuse and derivative abuse are properly before us inasmuch as the mother is "aggrieved by the court's findings of [abuse and derivative abuse]" despite her consent to the dispositions ( Matter of Noah C. [Greg C.] , 192 AD3d 1676, 1677 [4th Dept 2021]; see Matter of Vashti M. [Carolette M.] , 214 AD3d 1335, 1335 [4th Dept 2023], appeal dismissed 39 NY3d 1177 [2023]).