New York Family Law Blog

Published on: October 7, 2024

Family Court, Kings County considered whether it had jurisdiction over a visitation case. R.L.BXXXXX v. C.D.GXXX (In re Custody of R.L.BXXXXX), 2019 N.Y. Slip Op. 29090 (N.Y. Fam. Ct. 2019)

by Stephen Bilkis

A Final Order of Visitation (FOV) in New York is a legal document issued by the court that establishes the specific rights of a non-custodial parent or other party to have visitation with a child. This order outlines the schedule, duration, and conditions under which visitation will occur, aiming to ensure that the child maintains a meaningful relationship with the non-custodial parent while considering the child’s best interests.

The FOV may include details such as the days, times, and locations for visitation, as well as provisions for holidays, vacations, and special occasions. It may also address transportation arrangements and communication between the parties during visitation periods.

Once issued, the FOV is legally binding, and both parties are expected to comply with its terms. Failure to adhere to the FOV can result in legal consequences, including enforcement actions or modifications of the visitation arrangements by the court.

Published on: September 30, 2024

Court imputed income to nonworking mother. Remsen v. Remsen, 2021 N.Y. Slip Op. 5342 (N.Y. Sup. Ct. 2021)

by Stephen Bilkis

In a recent case before the Family Court, Westchester County, a mother appealed an order denying her objections to a prior decision that directed the father to pay child support and spousal support. The court’s decision was based on imputing income to the mother.

Imputed income refers to the assignment of income to a parent for the purpose of calculating child support obligations, even if that parent does not currently earn that income. This legal concept is applied when the court believes that a parent has the capacity to earn more income than they are currently earning or reporting.

In child support proceedings, imputed income typically arises when one parent alleges that the other parent is voluntarily unemployed or underemployed to avoid or reduce their child support obligations. The court may impute income to the parent based on their earning capacity rather than their actual income. This ensures that the child’s financial needs are adequately met, regardless of the parent’s employment status or reported income.

Published on: September 25, 2024

Court vacated an acknowledgement of paternity. Escobar v. Pagan, 2022 N.Y. Slip Op. 4912 (N.Y. App. Div. 2022)

by Stephen Bilkis

In proceedings under Family Court Act articles 5 and 6, several orders issued by the Family Court of Suffolk County were contested. These orders pertained to issues surrounding paternity, acknowledgment of paternity, and parental access to a child. In a relatively unusual move, the court vacated an acknowledgement of paternity.

In New York, the court may vacate an acknowledgment of paternity under specific circumstances, typically when there is evidence that the acknowledgment was obtained through fraud, duress, or mistake of fact.

Firstly, if there is clear and convincing evidence that the acknowledgment was obtained through fraud, the court may intervene to vacate it. Fraudulent circumstances could include misrepresentation of paternity by one of the parties involved, such as if the individual signing the acknowledgment knew they were not the biological parent but falsely claimed to be.

Published on: September 18, 2024

Does a grandmother have standing to seek visitation? Noguera v. Busto, 189 A.D.3d 1050 (N.Y. App. Div. 2020)

by Stephen Bilkis

Noguera v. Busto, 189 A.D.3d 1050 (N.Y. App. Div. 2020) centered around a maternal grandmother’s right to visitation with her grandchild, which was initially denied by the Family Court. In New York, grandparents may seek visitation rights if one or both parents are deceased, or if conditions warrant equitable intervention. The court must first determine standing based on these circumstances and then assess if visitation serves the child’s best interests, considering the existing relationship’s quality and duration.

Background Facts

The case involved a maternal grandmother who sought legal visitation rights to her grandchild, following a complex familial situation that crossed international borders. The child, born in 2009, was initially involved in custody proceedings between his parents. In 2012, during these proceedings, the mother unlawfully took the child from the United States to Argentina, without the consent of the father. This act triggered a lengthy and intense search involving multiple law enforcement agencies, including the police, the FBI, and the U.S. Department of State. In 2018, their efforts resulted in the successful return of the child to the father in the United States.

Published on: September 17, 2024

In the absence of specific related to why the move would be in the best interests of the child, the court denied a parental relocation request. Betts v. Moore, 175 A.D.3d 874 (N.Y. App. Div. 2019)

by Stephen Bilkis

When a parent wants to relocate with their child, they must get the permission of the other parent or of the court. The court will approve such a request to relocate and modification of a custody order if it is in the best interests of the child.

In Betts v. Moore, 175 A.D.3d 874 (N.Y. App. Div. 2019), the petitioner mother sought to modify an existing custody and visitation order, requesting permission to relocate with her child from Ontario County to Monroe County and seeking sole custody. The Family Court dismissed her petitions. On appeal, the mother argued that the court erred in its decision. The appellate court examined the case under the factors set out in Matter of Tropea v. Tropea to determine whether the relocation was in the best interests of the child.

Background Facts

Published on: September 16, 2024

Mother’s request to relocate with child to Florida denied because not in the best interests of the child. Holtz v. Weaver, 94 A.D.3d 1557 (N.Y. App. Div. 2012)

by Stephen Bilkis

This case involved a dispute over parental relocation. The mother, who had primary custody of the child, sought permission from the court to relocate with the child to Florida. The father opposed the move, and the matter was brought before the court for a decision. The court had to determine whether the proposed relocation was in the best interests of the child, as required by New York law.

Background Facts

The mother and father had divorced, and custody of their child was shared, with the mother being the primary custodial parent. The mother filed a petition seeking to modify the custody and visitation arrangements that were part of their divorce judgment. She requested permission to move with the child to Florida, citing her desire to care for her ill father, who lived there. The father opposed the relocation, arguing that it would negatively impact his relationship with the child and was not in the child’s best interests.

Published on: September 12, 2024

Does the Family Court have jurisdiction over a child support petition if another court has already issued an order?? Dawson v. Iskhakov 216 A.D.3d 950 (N.Y. App. Div. 2023)

by Stephen Bilkis

The jurisdiction of the New York Family Court encompasses a wide array of familial matters, prioritizing the welfare of children and the resolution of family conflicts. This court has authority over cases involving child custody, visitation rights, child support, and paternity disputes. It also handles matters related to adoption, guardianship, and juvenile delinquency, aiming to ensure the protection and stability of children within the state. Additionally, the New York Family Court adjudicates cases involving domestic violence, issuing orders of protection and facilitating access to necessary resources for victims. Its jurisdiction extends to matters of family offense proceedings, including allegations of abuse and neglect within familial relationships. With a focus on mediation and rehabilitation, the Family Court strives to promote familial harmony while upholding the rights and safety of all individuals involved, making it a vital institution for resolving complex family issues in the state of New York.

Dawson v. Iskhakov, 216 A.D.3d 950 (N.Y. App. Div. 2023) focuses on an issue related to the jurisdiction of the Family Court when it comes to child support matters.

Background Facts

Published on: September 4, 2024

Court addressed jurisdictional issues in a child custody case. Katz v. Katz 68 Misc. 3d 1228 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

Child custody disputes with jurisdictional issues present significant challenges, especially when the children have been residing in a state other than New York. One of the primary challenges is determining which state has jurisdiction over the case, as this impacts various aspects of the legal proceedings, including custody determinations and child support orders.

When children have been living outside of New York, the issue of “home state” jurisdiction arises under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Establishing the “home state” is crucial because it dictates which state’s courts have primary jurisdiction over custody matters. However, when children have resided in a different state for an extended period, as in this scenario, determining the “home state” becomes complex and may require careful examination of the children’s residency history.

Furthermore, conflicting claims of residency between the parents add another layer of complexity to jurisdictional disputes. In cases where one parent asserts residency in New York while the other claims residency in another state, the court must carefully evaluate the evidence presented by both parties to determine the children’s primary residence and the state with the most significant connections to their lives.

Published on: September 2, 2024

Does spousal support obligation survive death? Dean v. Dean, 67 Misc. 3d 325 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

In Dean v. Dean, 67 Misc. 3d 325 (N.Y. Sup. Ct. 2020), the Supreme Court, Monroe County, considered whether a spousal support order survived the death of the payee spouse. In other words, the court considered whether during a divorce proceeding, the payor spouse was required to continue to pay support to the estate of their deceased spouse. This is an issue that most people may not think about during the divorce process.

Background Facts

The legal proceedings began with a divorce claim initiated by a wife. However, the wife passed away during the process due to severe health issues while confined to a nursing home. Consequently, the divorce action was converted into a spousal support proceeding under Article 4 of the Family Court Act.

Published on: August 28, 2024

Whether a man could claim paternity, despite the child having a father-child relationship with another man. Yaseen S. v. Oksana F., 214 A.D.3d 883 (N.Y. App. Div. 2023)

by Stephen Bilkis

In, Yaseen S. v. Oksana F., 214 A.D.3d 883 (N.Y. App. Div. 2023), a case before the Family Court of Richmond County, Yaseen S. appealed a decision denying his paternity petition and petition for visitation with a child. The court granted the attorney for the child’s petition to adjudicate another man, Yuriy K., as the father of the child.

Background Facts

Yaseen S. initiated legal proceedings under Family Court Act Article 5 to establish his paternity regarding the subject child and simultaneously filed a petition under Article 6 seeking visitation rights. These actions reflect his desire to assert his parental rights and establish a relationship with the child. Concurrently, the attorney representing the child initiated proceedings to adjudicate another man, Yuriy K., as the father of the child. This action suggests a legal challenge to Yaseen S.’s claim of paternity.