New York Family Law Blog

Parents generally have a constitutional right to the care and custody of their children. At the same time, child welfare agencies have a responsibility to protect children from abuse and neglect. When government officials remove a child from a parent’s custody without a court order, courts must determine whether the removal was justified by an emergency or whether it violated constitutional protections. In K.W. v. The City of New York, No. 24-3042-cv (2d Cir. 2026), the United States Court of Appeals for the Second Circuit considered claims arising from the removal of a newborn child from his father’s custody shortly after birth. The court concluded that several constitutional claims brought on behalf of the child should proceed.

Background Facts

K.A. was born in March 2017 at Bronx Lebanon Hospital in New York City. According to the complaint, he lived with his father, K.W., during the first days of his life.

The case of Matter of Andrea II. v. Joseph HH. involved two custody modification petitions filed by both parents of a child born in 2014. The matter required the court to decide whether there had been a change in circumstances since a prior custody order, and if so, what custodial arrangement would serve the child’s best interests. Both parents had a history of substance abuse, and the court evaluated each parent’s current circumstances, their ability to provide stability, and the child’s needs before deciding primary physical custody.

Background Facts
In June 2018, the parties entered a consent order granting joint legal custody to both parents. The child’s paternal grandparents had primary physical custody. The mother had supervised parenting time every other week, supervised by the maternal grandmother. The father’s parenting time was supervised by the paternal grandfather as agreed between them.

In October 2019, the mother sought to modify the order to grant her sole custody with supervised visitation to the father. In February 2020, the father filed a petition seeking full custody, citing his sobriety and stable home. The mother amended her petition, alleging changes in circumstances, including the loss of her alternate week visitation after the child began school in Binghamton near the paternal grandparents’ home.

In 2021, both Alex Wright and Sanchel Burke filed custody petitions in the Family Court, Kings County. The case involved their child, who had moved with the mother from Brooklyn to Binghamton. The father sought sole legal and physical custody, and the mother also sought sole legal and physical custody. A key question was whether the court could require the mother to move back to New York City as a condition of keeping custody. The court was also tasked with setting a parental access schedule for the father that took into account the child’s best interests.

Background Facts
The parties never married and are the parents of one child. The father lived in Brooklyn, while the mother and child moved to Binghamton in 2021. Following that move, both parents filed petitions for sole legal and physical custody.

In March 2023, after a hearing, the Family Court awarded the mother sole legal and physical custody. However, the order included two conditions: that the mother relocate with the child back to New York City and that the child be enrolled in a school in Brooklyn within a 20-minute commute from the father’s residence. The court stated that if the mother did not meet these conditions, custody would be transferred to the father.

In February 2022, Emily F. filed a petition in the Supreme Court, Bronx County, seeking to modify a 2017 final order of custody and visitation. She requested permission to relocate her child from New York to North Carolina over the objection of the father, Victor P. The case came before the court on remittal from the Appellate Division for a new fact-finding hearing. The court considered testimony, documentary evidence, and the relocation standard in New York, which requires the moving parent to show that the relocation is in the child’s best interests.

Background Facts
Emily F. and Victor P. were previously married and lived in the Bronx between 2013 and 2016. They separated in 2016 after incidents of domestic violence. The 2017 custody order, issued on consent, gave the mother sole legal and physical custody and provided the father with parenting time. The mother lost her job at New York University in 2020 due to budget cuts and searched extensively for employment in New York, applying for over 65 positions. When she was unable to find work, she began looking in North Carolina, where she had family. In February 2022, she received an offer from Duke University and relocated with the child in June 2022.

Since the move, the child has been living in a gated community, performing well in school, participating in tutoring and athletic activities, and maintaining friendships. The father’s parenting time has been inconsistent, with missed opportunities during several school breaks and holidays. The mother offered to pay travel costs and proposed a schedule that included substantial time in New York and North Carolina. The child expressed a preference to remain in North Carolina while continuing to spend time with the father. The father did not testify or present evidence during the hearing.