Custody

Published on: December 18, 2024

Grandparent seeks custody in an interstate case. Peggy RR. v. Jenell RR. 2023 N.Y. Slip Op. 23252 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

The case of Peggy RR. v. Jenell RR. 2023 N.Y. Slip Op. 23252 (N.Y. Fam. Ct. 2023) is a complex child custody case. Not only does it involve a grandparent seeking access to her grandchild, it also has interstate elements.

The Interstate Compact on the Placement of Children (ICPC) is a statutory agreement among all 50 states, the District of Columbia, and the U.S. Virgin Islands that governs the placement of children across state lines. It was created to ensure that children placed out of their home state for foster care or adoption receive the same protections and services that would be available if they remained in their home state. Additionally, the ICPC ensures that the placement is in the best interests of the child and is safe and suitable before it is finalized.

Background Facts

Published on: December 17, 2024

Appellate Division ordered a hearing to resolve custody disputes and parental access modifications. Trazzera v. Trazzera, 158 N.Y.S.3d 158 (N.Y. App. Div. 2021)

by Stephen Bilkis

In custody disputes, courts prioritize the child’s best interests, considering circumstances that may necessitate modifications to prior agreements. This case addresses a post-divorce dispute where both parents sought modifications to their custody and parental access arrangements. The Supreme Court initially ruled without a hearing, but the appellate court reversed and ordered a hearing to address unresolved issues.

Background Facts

The plaintiff and defendant, parents of one child, divorced in 2019, incorporating a stipulation of settlement into the judgment of divorce. The agreement granted joint legal custody, joint decision-making authority, and residential custody to the defendant, with parental access for the plaintiff.

Published on: December 6, 2024

Mother’s permanency hearing appealed dismissed as moot. Westchester Cnty. Dep’t of Soc. Servs. v. Antoinette W. (In re Malazah W.), 121 N.Y.S.3d 677 (N.Y. App. Div. 2020)

by Stephen Bilkis

Permanency hearings are critical in child welfare cases, ensuring that children placed in the care of social services have stable and appropriate long-term plans. In Matter of Malazah W. and Malikah W., the Family Court addressed the permanency goal for two children removed from their mother’s care due to neglect. The mother appealed a February 2019 permanency hearing order, which continued the goal of reunification and the children’s placement with Westchester County’s Commissioner of Social Services (CSS).

Background Facts

Antoinette W., the mother of Malazah W. and Malikah W., consented to a finding of neglect without admission under Family Court Act Article 10. The children were placed in the custody of CSS. As part of the permanency planning process, a hearing was held in November 2018 to assess the children’s status and determine the appropriate permanency goal.

Published on: November 25, 2024

In the absence of marriage, without evidence of a formal agreement or financial contribution, there no right to property or financial support. Farre v. Lours, 2020 N.Y. Slip Op. 33963

by Stephen Bilkis

Common law marriage is a legal concept that recognizes a couple as married without the need for a formal ceremony or marriage license. It typically arises when a couple lives together for a certain period of time and holds themselves out as married, presenting themselves to others as spouses. In common law marriage states, these couples are treated legally as if they had undergone a formal marriage ceremony.

However, New York does not recognize common law marriage. This means that even if a couple lives together for an extended period and behaves as if they are married, they are not considered legally married under New York law. In New York, a valid marriage requires a formal marriage ceremony performed by an authorized officiant and the issuance of a marriage license.

In Farre v. Lours, 2020 N.Y. Slip Op. 33963, a plaintiff brought forth various claims against the father of her children, seeking financial relief and asserting rights related to their shared assets and living arrangements. The case involved complex legal arguments surrounding the nature of their relationship, financial contributions, and promises made during their partnership.

Published on: November 17, 2024

Appellate Division affirmed sole custody to the mother due to deteriorated co-parenting and father’s limited involvement. Connell-Charleus v. Charleus, 140 N.Y.S.3d 752 (N.Y. App. Div. 2021)

by Stephen Bilkis

In a case concerning the custody of a minor child, the Family Court of Kings County addressed a petition to modify the custody arrangement outlined in a Florida judgment of divorce. The court considered whether a change in circumstances warranted granting the mother sole legal and physical custody of the child.

The mother and father married in 2010 and had a child in 2015. Their marriage ended in 2016 when a Florida court issued a judgment of divorce. The judgment incorporated a settlement agreement and a parenting plan granting the parents joint custody of the child. The father, who lived in Toronto, was entitled to overnight parenting time from Thursday to Sunday every other week and during vacations. The mother, residing in Brooklyn, was the primary day-to-day caregiver.

The agreement also required the parents to participate in co-parenting counseling for 18 months to facilitate joint decision-making. However, their relationship, which was strained at the time of the agreement, deteriorated further. By 2017, the mother registered the Florida judgment in New York and petitioned the Family Court in Kings County to modify custody, seeking sole legal and physical custody of the child.

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 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 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 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 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