Wednesday, October 9, 2013

Confirmation of Supervised Visitation, Mental Health Evaluation and Sua Sponte Orders of Protection in New York Family Court

FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS

[CAPTION]

CONFIRMATION OF REPORT OF THE COURT ATTORNEY REFEREE

Pursuant to an Order of Reference, this matter was referred to a Court Attorney Referee to hear and report.

On July 2, 2013, the Court Attorney Referee issued a Report with recommendations regarding custody and visitation for the subject children, [Child #1], born on [], and [Child #2], born on []. (See, Civil Practice Law and Rules §4320 [b]). The Report contains the following recommendations: (1) that [Mother] undergo a full psychiatric assessment, and that she be directed to comply with any recommendations made by the psychiatrist, including therapy and medication as a component to a parenting plan; (2) that the current visitation schedule be modified to therapeutic supervised visitation, to be supervised by a therapeutic social worker and that the social worker provide reports to the court every 90 days, with [Mother] paying for the therapeutic supervised visitation. Counsel should have access to the reports upon request, and that counsel may review the reports with the parties but not provide copies of the reports to the parties. The Court Attorney Referee recommends that the visitation be community based and at dates and times as arranged with the social worker and parties for a minimum of six (6) hours of visitation bi-weekly, with additional visitation if scheduling and finances allow. The Court Attorney Referee recommended that [Mother] be given the opportunity to submit financial documentation regarding her ability to pay for the visitation; *1 (3) that the other portions of the [2012] order should be continued, including the order that [Mother] may only attend the children's activities during her parenting time, that she not have contact with the children's babysitters or other third party providers providing services to the children, that [Mother] not attempt to contact or otherwise interact with the children's school faculty, staff or other support members, that [Mother] not attend mass at [] Catholic Church in [], New York on Sundays so long as the children attend that church, and that neither parent discuss the court proceedings or litigation with the children nor disparage the other parent in the presence of the children; (4) that the Court issue an Order of Protection against [Mother] on behalf of the children and [Father] directing that [Mother] not assault, menace, harass or engage in any unlawful conduct against them, that she be directed to stay away from the children and their school subject to court ordered visitation, that she not use any corporal punishment on the children or discuss the litigation with the children; the Court Attorney Referee recommends that the Order of Protection remain in effect until the younger child [Child #2] reaches the age of 18, which will be on [] 2019.

On July 18, 2013, [Father]'s attorney filed a motion asking the court to confirm the Court Attorney Referee's findings and recommendations. *2 On July 30, the Attorney for the Children filed an Affirmation in Support of [Father]'s motion, and joined in his application that the court confirm the Court Attorney Referee's July 2,2013 Report.

On July 30, 2013, [Mother]'s attorney filed a Notice of Motion (Crossmotion) asking this Court to reject (in whole or in part) the Court Attorney's report, and to order a new hearing. *3 This Court finds the Motion (Crossmotion) to be without merit.

Upon review of the very detailed report of the Court Attorney Referee and the voluminous record of the proceedings, including the transcripts of the lengthy hearing, this Court adopts the Court Attorney Referee's findings of fact, and confirms the Court Attorney Referee's report and recommendations.

A Court may appoint a referee to hear and determine an action or specific issues, or, alternatively, appoint a referee to hear the evidence and report to the Court (Civil Practice Law and Rules §§4001, 4301, 4311, 4320 [reference to report]; see generally, 8 Weinstein-Korn-Miller, NY Civil Prac ¶4301.02 at 43-6). Insofar as relevant, Civil Practice Law and Rules §4403 provides that:

Upon the motion of any patty or on his [her] own initiative, the judge required to decide the issue may confirm or reject, in whole or in part, the verdict of an advisory jury or the report of a referee to report; may make new findings with or without taking additional testimony; and may order a new trial or hearing. * * * Where no issues remain to be tried the Court shall render decision directing judgment in the action.

Civil Practice Law and Rules §4403 provides a procedural mechanism by which any party to an action in which a Referee has been appointed to report may seek a judicial decree confirming or rejecting the Referee's report. See Galiber v. Previte, 40 NY2d 822, 824 (1976); O'Donnell v. O'Donnell, 80 AD3d 586 (Second Dept., 2011); Wilderv. Wilder, 55 AD3d 1341 (Fourth Dept., 2008); Sillah v. Tanvir, 18 AD3d 223, 224 (First Dept., 2005) leave toappeal denied by 5 NY3d 711 (Court of Appeals, 2005); Sidoti v. Degliuomini, 10 AD3d 396 (Second Dept., 2004); Thomas o/b/o Hamlin Park Community & Taxpayers'Association v. Murphy, 2 AD3d 1404 (Fourth Dept., 2003).

"It is well settled that the report of a Special Referee shall be confirmed whenever the findings contained therein are supported by the record and the Special Referee has clearly defined the issues and resolved matters of credibility." Nager v. Panadis, 238 AD2d 135 (First Dept., 1997); Marcano v. U-Haul Co. ofVirginia, 82 AD3d 479 (First Dept., 2011); Taveras v. General Trading Co.,Inc., 73 AD3d 659 (First Dept., 2010) (A referee's report will be confirmed if his/her findings are supported by the record. The Appellate court will defer to the referee's determination, particularly where it turns upon an assessment of the witnesses' credibility); Cooke v. 3Flanagan, 52 AD3d 257 (First Dept., 2008); Lee v. Solimano, 34 AD3d 299 (First Dept., 2006); Baker v. Kohler, 28 AD3d 375 (First Dept., 2006) leave to appeal denied by 7 NY3d 885 (Court of Appeals,2006); (The report of a referee should be confirmed if its findings are supported by the record); Simons v. Ross, 309 AD2d 667 (First Dept., 2003). In the instant case, the findings of fact and conclusions of law made by the Court Attorney Referee, including her credibility findings, are supported by the voluminous record, which includes all transcripts and the very large court record.

Now, after examination and inquiry into the facts and circumstances of the case, it is hereby:

ORDERED, that the Court Attorney Referee's [2013] Report is confirmed;

ORDERED, that [Mother] shall not file any pleadings, including petitions, orders to  show cause and motions without prior written approval of the court;

ORDERED, that [Father]'s petition filed on [2012] to modify the order of visitation (docket #s []) is granted as follows:

(1) [Mother] shall undergo a full psychiatric assessment and comply with any recommendations made by the psychiatrist, including therapy and medication as a component to a parenting plan;

(2) The current visitation schedule is modified to therapeutic supervised visitation, to be supervised by a therapeutic social worker. The social worker shall provide reports to the court every 90 days, with [Mother] paying for the therapeutic supervised visitation. Counsel may have access to the reports upon request. Counsel may review the reports with the parties but shall not provide copies of the reports to the parties. The visitation shall be community based and at dates and times as arranged with the social worker and parties for a minimum of six (6) hours of visitation bi-weekly, with additional visitation if scheduling and finances allow;

If [Mother] wishes the Court to determine her ability to pay for the supervised visitation, she must submit the following financial documents to the court by October 10, 2013: the last four years federal and New York State income tax returns (including all attachments and schedules), a notarized financial disclosure affidavit, and copies of all bank statements and brokerage statements for the past three years. [Mother] must also submit a notarized letter setting forth how she currently supports herself, as well as an accounting of the money she received from the sale of a home to [Witness] in 2006.

Regarding the person who will be supervising the visits, the visitation can be supervised by Comprehensive Family Services or by a social worker who is approved by the Appellate Division, Second Department. All counsel must confer with their clients and may consent to one supervisor and submit the name to the court jointly for the issuance of an order. If there is no consent, each attorney must submit the name of a supervising agency or social worker to this Court for the Court's selection and issuance of an order. These submissions must occur by October 10, 2013.

(3) The other portions of the [2012] order shall be continued, including the following:

(a) [Mother] may only attend the children's activities during her parenting time;

(b) [Mother] shall not have contact with the children's babysitters or other third party providers providing services to the children;

(c) [Mother] shall not attempt to contact or otherwise interact with the children's school faculty, staff or other support members;

(d) [Mother] shall not attend mass at [] Catholic Church in [], New York on Sundays so long as the children attend that church

(e) Neither parent shall discuss the court proceedings or litigation with the children nor disparage the other parent in the presence of the children.

(4) This Court shall issue an Order of Protection against [Mother] on behalf of the children and [Father] ordering [Mother] to not assault, menace, harass or engage in any unlawful conduct against them, ordering that she stay away from the children and their school subject to court ordered visitation, ordering that she not use any corporal punishment on the children, and ordering her to not discuss the litigation with the children. The Order of Protection shall remain in effect until the younger child [Child #2] reaches the age of 18, which will be on [2019].

This constitutes the Decision and Order of the Court.

ENTER:

/S/ JUDGE
FAMILY COURT – QUEENS COUNTY

DATED: JAMAICA, NEW YORK
September [], 2013

*1 The Court Attorney Referee noted that [Mother] had private counsel during the course of the proceedings, and that she should be given an opportunity to submit the following financial documentation to the court to determine her ability to pay for the supervised visitation within two weeks of the date of confirmation of her report: the last four years income tax returns, a notarized financial disclosure affidavit, and copies of all bank statements and brokerage statements. The Court Attorney Referee also recommends that [Mother] be directed to submit a notarized letter setting forth how she currently supports herself, as well as an accounting of the money she received from the sale of a home to one [Witness] in 2006.

*2 Attached to the motion papers is an Affirmation of Service stating that Mr. [] ([Mother]'s attorney) and Mr. [] (the Attorney for the Children) were served with the motion papers via overnight delivery service (Federal Express).

*3 On July 19, 2013, [Mother]'s attorney submitted a letter to the court indicating that he recently moved to a new office and that he only received the C0urt Attorney Referee's forty-six page report on Wednesday, July 17,2013. He stated his intent to move to reject in whole or in part the Referee's Report as expeditiously as possible. A copy of the letter was also sent to [Mother], Mr. Ayers (the father's attorney) and Mr. [] (the Attorney for the Children). Despite the fact that [Mother]'s attorney did not file his motion with fifteen days after the filing of the Referee's Report, as mandated by CPLR § 4403, this Court has reviewed and considered the Notice of Motion (Crossmotion) that was filed on July 30,2013.


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