New York Family Law Blog

Published on: November 13, 2024

Olga P. v. Ioannis Y. 182 A.D.3d 447 (N.Y. App. Div. 2020)

by Stephen Bilkis

Navigating the complexities of family law, especially during a marital dissolution involving custody, support, and family offenses, requires a deep understanding of legal procedures and judicial discretion. In a series of decisions spanning from late 2018 to mid-2019 by various judges and courts in New York County, a marital dispute involving these issues provides a profound illustration of the intricacies of family and supreme court interactions.

Background Facts

On November 27, 2018the Supreme Court of New York County appointed a guardian ad litem for the wife , recognizing her deteriorating mental health which compromised her capacity to engage effectively in her legal defense and proceedings. This appointment was pivotal, given the wife’s previously demonstrated difficulties in managing the discovery process, which led to the necessity of supervised discovery overseen by a Special Referee.

Published on: November 13, 2024

Calculating spousal maintenance. AW v PW 2022 NY Slip Op 51177(U)

by Stephen Bilkis

In AW v PW, 2022 NY Slip Op 51177(U) the court was tasked with determining spousal support and child support amounts pendente lite, amidst a divorce proceeding initiated by the Plaintiff in December 2020.

“Pendente lite” is a Latin term meaning “pending the litigation.” Pendente lite spousal and child support refer to temporary financial support orders issued by a court during the course of divorce or family law proceedings. When determining temporary support in New York, courts consider several factors, including each party’s income and financial resources, the marital standard of living, the needs of the children, and any exceptional expenses. They also review financial affidavits detailing both spouses’ incomes, expenses, assets, and liabilities. The goal is to maintain the status quo and prevent financial hardship for the lower-income spouse and children pending the final resolution of the divorce proceedings.

Background Facts

Published on: November 11, 2024

Appellate Division applies the Indian Child Welfare Act to a custody matter. Suffolk Cnty. Dep’t of Soc. Servs. v. Samantha Q. (In re Dupree M.)

by Stephen Bilkis

The Indian Child Welfare Act (ICWA) of 1978 is a federal law designed to protect the best interests of Native American children and preserve the stability and security of Indian tribes and families. While originally enacted to address the alarming rate of Native American children being removed from their families by nontribal agencies, the ICWA has broader implications for child custody matters, including those in New York.

In New York, the ICWA applies not only to federally recognized tribes but also to tribes recognized by the state. This recognition expands the jurisdictional reach of the ICWA, ensuring that Native American children and families in New York receive the law’s protections. The ICWA establishes minimum federal standards for the removal of Indian children from their families and placement in foster care or adoptive homes that reflect the unique values of Indian culture.

One of the key provisions of the ICWA is its jurisdictional framework, which governs where child custody proceedings involving Native American children should take place. Under the ICWA, tribes have exclusive jurisdiction over such proceedings when the child resides or is domiciled within the tribe’s reservation. However, in cases where the child is not domiciled on the reservation, the ICWA creates concurrent jurisdiction, with a presumption in favor of tribal jurisdiction.

Published on: November 11, 2024

Father incarcerated for willful failure to pay child support. Atkinson v. Atkinson, 181 A.D.3d 590 (N.Y. App. Div. 2020)

by Stephen Bilkis

Under New York law, incarceration is a possible consequence for the willful nonpayment of child support. This punitive measure is considered a last resort and is typically employed when all other enforcement methods have failed to compel compliance with support obligations. The legal framework governing this area is outlined in the Family Court Act (FCA), particularly in sections that address the enforcement of child support orders.

Section 454 of the FCA stipulates that failing to pay child support as ordered by the court constitutes prima facie evidence of willful violation. Once the custodial parent or guardian establishes that the non-custodial parent has not paid support as directed, the burden shifts to the latter to prove their inability to pay. The non-custodial parent must provide credible evidence, such as detailed financial statements or medical documentation, to demonstrate that their non-compliance was not willful but rather due to circumstances beyond their control.

If the court finds the nonpayment to be willful, section 455 of the FCA allows for various penalties, including incarceration. The decision to incarcerate hinges on the non-custodial parent’s continued defiance of the court order without just cause, reflecting the legal system’s commitment to ensuring that child support obligations are taken seriously and that children receive the financial support they are legally entitled to.

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