Presiding Justice Scheinkman gains attention from decisions in family law cases

Past BBA president: We couldn't have a better steward to guide the ship

August 1, 2019 Rob Abruzzese

Judge Alan Scheinkman. Eagle photo by Rob Abruzzese

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Justice Alan Scheinkman, presiding judge of the Appellate Division, Second Judicial Department, was recognized in a Law Journal article this week for a pair of recent decisions that attorney Dolores Gebhardt claimed, “showcase how his mastery of the practice area is shaping case law in the Second Department.”

The article focuses on two decisions from Newton v. McFarlane, published on June 5, 2019, that reversed a Family Court order and dismissed the mother’s petition in a custody case, and Matter of John, published on June 26, 2019, that involved a single, gay man who had his adoption petition dismissed in the Family Court.

In the case of Newton v. McFarlane, a mother sought sole custody of her 17-year-old child for the third time even as testimony from the child stated her desire to remain with her father. The Family Court granted that testimony; however, Justice Scheinkman reversed the decision on a couple of grounds.

First, he ruled that the attorney for the child had standing to appeal the case; second, Justice Scheinkman found that a child may be aggrieved by a custody order even without being a party to the litigation.

“It seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of the child’s upbringing,” Justice Scheinkman wrote in the decision. “To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child’s parents.”

Justice Scheinkman went even further and explained that the Family Court failed to establish the requisite change of circumstances for the change in custody, and failed to consider the child’s desire to remain under custody of the father. The Family Court order was reversed and the mother’s petition dismissed.

Gebhardt then explained that the Matter of John involved Justice Scheinkman properly applying “20th century law to a 21st century situation.”

In that case, the man entered into a surrogacy contract with an unpaid friend who agreed to carry embryos to term before relinquishing any parental rights. The Family Court initially dismissed the adoption petition because the adoption would validate an illegal surrogacy contract and it said a biological parent cannot adopt his own child. (The man used his own sperm to produce the embryo).

Justice Scheinkman noted that the contract was not for profit, thus not subject to fines and potential criminal prosecution, and noted that gestational surrogates may validly terminate their parental rights. Thus, Justice Scheinkman’s decision stated that there was no legal basis for the adoption petition to be thrown out in court.

Finally, Justice Scheinkman ruled that the adoption statute does not preclude a biological parent from adopting his or her own child. He went on to say that the purpose of the adoption statute is to create a parent-child relationship in the best interest of the child and that recent bills passed in the New York State legislature would permit such adoptions.

Gebhardt was hardly the only person to notice the impact Justice Scheinkman’s decisions have had on Family Law. Aimee Richter, a past president of the Brooklyn Bar Association and co-chair of the matrimonial and family law section of the law firm Lee Anav Chung White Kim Ruger & Richter, said that she and other practitioners have noticed the common-sense decisions coming out of Justice Scheinkman’s court.

“Those of us who practice family law know that the justices of the Appellate Division, Second Department have long championed children’s rights,” Richter said. “With the scholarship and experience of our presiding justice Alan Scheinkman in these difficult matters, recent decisions have shown that the Court continues to modify and correct the trial courts where necessary.

“As the times change, and with it the practice of family law, we couldn’t have a better steward to guide the ship into the future,” Richter said.