New York Family Law Blog

Published on: November 4, 2024

Court upheld mother’s increased visitation. Hendershot v. Hendershot, 187 A.D.3d 1584 (N.Y. App. Div. 2020)

by Stephen Bilkis

In Hendershot v. Hendershot, 187 A.D.3d 1584 (N.Y. App. Div. 2020), a father appealed against a court order that increased the mother’s visitation rights with their children. Under New York law, in order for there to be a custody modification, there must be a change in circumstances.

A “change in circumstances” refers to significant alterations in the living situation, health, or welfare of a child or parent that impacts a child custody arrangement established by a previous court order. This change must be substantial enough to justify reevaluating the custody or visitation terms to ensure they continue to serve the best interests of the child. Common examples include relocation, changes in a parent’s lifestyle or health, alterations in the child’s needs or preferences, or any developments that materially affect the parent’s ability to provide a stable and supportive environment for the child.

Background Facts

Published on: October 30, 2024

Willful Violation of Child Support Order. Wanda R.F. v. Marc A.C., 222 A.D.3d 585 (N.Y. App. Div. 2023)

by Stephen Bilkis

In a recent case before the Family Court of New York County, the court affirmed findings that the respondent father willfully violated a support order dating back to 2010.

In New York, a willful violation of child support occurs when a parent fails to comply with a court-ordered child support obligation without a justifiable excuse. According to Family Court Act § 454(3)(a), a parent is deemed to have willfully violated a support order if they have the means to provide support but fail to do so without a valid reason.

The statute places the burden of proof on the party alleging the willful violation to demonstrate that the non-compliant parent had the ability to meet their support obligation. This can be established through evidence of the parent’s financial means, employment status, and any other relevant factors. Once the prima facie showing of willful violation is made, the burden shifts to the non-compliant parent to provide evidence justifying their failure to pay support.

Published on: October 28, 2024

Montgomery Cnty. Dep’t of Soc. Servs. ex rel. Donavin E. v. Trini G., 195 A.D.3d 1069 (N.Y. App. Div. 2021)

by Stephen Bilkis

In a recent case before the Family Court of Montgomery County, an appeal was made regarding the establishment of paternity for a child born in 2005. The court’s decision, centered on equitable estoppel and the child’s best interests, sparked controversy and led to an appeal by respondent Reymond F.

Background Facts

In April 2018, a paternity proceeding was initiated by the petitioner in the Family Court of Montgomery County. The objective was to establish paternity and secure child support for a 13-year-old child under its care. At the time, the child lacked an adjudicated father and had no father listed on their birth certificate. Initially, the proceeding involved respondent Trini G., who had purportedly assumed the role of the child’s father. However, respondent Reymond F. was later added to the petition based on allegations of paternity.

Published on: October 26, 2024

Property division terms in prenuptial agreement upheld. Schlosser v. Schlosser, 219 A.D.3d 1455 (N.Y. App. Div. 2023)

by Stephen Bilkis

In a case involving the division of property after a divorce, the defendant appealed an order from the Supreme Court of Queens County, which limited her share of proceeds from the sale of the marital residence to $700,000. The court also denied her request to have the residence recognized as her separate property.

Background Facts

The parties married on July 8, 2011, and had two children. Prior to their marriage, they signed a prenuptial agreement that outlined how their marital and separate property would be divided in case of divorce. In this agreement, a “termination event,” including divorce, would trigger the division of marital property equally between them. However, the marital residence and any debt related to it were excluded from this equal division provision.

Published on: October 25, 2024

Father’s consent to adoption was not necessary. In the Matter of Angela H. F., 2017 N.Y. Slip Op. 7598 (N.Y. App. Div. 2017)

by Stephen Bilkis

In this case, Matter of Angela H. F., the New York Appellate Division, Second Department, addressed issues related to the adoption of a child and the rights of a biological father. The court examined whether the father’s consent was necessary for the adoption to proceed. Although the father sought to assert his parental rights, the court determined that his consent was not required based on evidence of his minimal contact with the child.

Background Facts

The child at the center of this case was born in March 2006. Her birth certificate did not list a father. Several months later, in September 2006, the child was removed from her mother’s custody and placed into foster care under the supervision of New York Foundling Hospital, a child welfare agency. In 2009, the agency initiated a proceeding in Family Court to terminate the mother’s parental rights, indicating that her inability to care for the child justified such action.At this time, Shombe M. was named as the father in an agency record, but he was not given notice of the proceedings. In October 2012, the Family Court terminated the mother’s parental rights. In January 2014, the Family Court ruled that the father’s consent was not required for the child’s adoption, given his limited role in her life up to that point.

Published on: October 25, 2024

In paternity dispute, Appellate Division prioritized child’s stability. DeB. v. DeB, 7 A.D.3d 561 (N.Y. App. Div. 2004)

by Stephen Bilkis

DeB. v. DeB, 7 A.D.3d 561 (N.Y. App. Div. 2004) involved a dispute between a husband and wife over the paternity of their child. The plaintiff, the husband, appealed a decision by the Supreme Court, Queens County, that denied his request for a paternity test to challenge the presumption that he was the father of the child. This appeal raised legal questions regarding the circumstances under which a court may deny paternity tests, particularly when the challenge arises after the child’s birth and involves complex family dynamics.

In paternity cases, courts prioritize the child’s stability above biological disputes. When a child has formed a stable relationship with a presumed father, courts may deny paternity challenges to protect that bond. The principle of estoppel often applies, preventing a person from denying paternity if they have acted as the parent, as a disruption could harm the child’s emotional well-being. By focusing on continuity, courts seek to prevent potential distress that sudden changes in parental identity could cause. This approach ensures the child’s sense of security remains intact, safeguarding their best interests over technicalities.

Background Facts

Published on: October 25, 2024

Acknowledgement of paternity signed based on mistake of fact. Oscar X.F. v. Ileana R.H., 107 A.D.3d 795 (N.Y. App. Div. 2013)

by Stephen Bilkis

In a paternity case, the courts may sometimes be asked to vacate an acknowledgment of paternity when new information comes to light. These cases can have significant consequences, not only for the parents involved but also for the child. Oscar X.F. v. Ileana R.H., 107 A.D.3d 795 (N.Y. App. Div. 2013) highlights the legal standards required to vacate an acknowledgment of paternity and the importance of considering the best interests of the child.

Background Facts

The case involved a petitioner who had signed an acknowledgment of paternity, believing he was the biological father of the child in question. The acknowledgment of paternity was executed in accordance with Family Court Act § 516–a. At the time, the petitioner was under the impression that he was the father because he had engaged in sexual relations with the mother during the relevant period.

Published on: October 24, 2024

On appeal, court determined wife should have been awarded alimony. Diaz v. Gonzalez, 984 N.Y.S.2d 65 (N.Y. App. Div. 2014)

by Stephen Bilkis

Not surprisingly, issues related to property distribution, spousal maintenance, and child support are among the most contested issues during a divorce. Diaz v. Gonzalez, 984 N.Y.S.2d 65 (N.Y. App. Div. 2014) involved a defendant appealing a judgment from the Supreme Court in Queens County regarding maintenance and child support.

Background Facts

The parties in Diaz v. Gonzalez, married on December 28, 1998. The plaintiff moved out of their shared home in September 2005. In March 2010, the plaintiff commenced divorce proceedings. The defendant responded to the action, asserting counterclaims that sought child support and spousal maintenance.

Published on: October 21, 2024

In the absence of extraordinary circumstances, grandmother was denied custody. Linda UU. v. Dana VV. 212 A.D.3d 906 (N.Y. App. Div. 2023)

by Stephen Bilkis

In Linda UU. v. Dana VV. 212 A.D.3d 906 (N.Y. App. Div. 2023), the Family Court of Schenectady County dealt with a custody dispute involving a grandmother’s right to custody against the child’s mother. In New York, courts generally uphold the principle that a parent’s right to custody of their children is paramount. However, under certain exceptional circumstances, the court may consider granting custody to a grandparent. These “extraordinary circumstances” include situations where there has been a prolonged disruption of custody, the parent has abandoned the child, shown persistent neglect, unfitness, or other factors that significantly impact the child’s well-being.

For instance, if a parent voluntarily relinquishes care and control of the child to a grandparent for an extended period, typically 24 continuous months, this can constitute an extended disruption of custody that might justify granting the grandparent custody. Additionally, if a parent persistently neglects the child by failing to maintain substantial, repeated, and continuous contact or fails to plan for the child’s future, these behaviors can also be viewed as extraordinary circumstances.

Background Facts

Published on: October 20, 2024

Equitable distribution requires full financial disclosure by both parities. C.M.S. v. W.T.S., 37 Misc. 3d 1228 (N.Y. Sup. Ct. 2012)

by Stephen Bilkis

In a matrimonial trial that spanned several years, a couple’s divorce action finally came to court after years of separation and failed settlement attempts. C.M.S. v. W.T.S., 37 Misc. 3d 1228 (N.Y. Sup. Ct. 2012) involved significant issues, including determining how to distribute marital property.

Background Facts

The couple in this case had been separated since 2007, and their divorce action began in 2008. Throughout the divorce proceedings, both parties exhibited a lack of urgency in settling their financial matters, leading to numerous pretrial conferences without significant progress.