Custody

Published on: August 9, 2023

Court refused to allow father who was convicted for child rape to have visitation with his child. Davis v. Davis, 265 AD2d 552, 553 (NY App. Div. 2d Dep’t 1999)

by Stephen Bilkis

The “best interests of the child” is a paramount legal standard used in family law to guide decisions regarding custody, visitation, support, and other matters that directly affect children. Essentially, it mandates that any decision made by the court or involved parties must prioritize what is best for the child’s overall well-being, growth, and development.

The case of Davis v. Davis, 265 AD2d 552, 553 (NY App. Div. 2d Dep’t 1999), delves into a visitation proceeding with unique circumstances, shedding light on how the court navigates the complexities to determine what is in the best interests of the child.

When it comes to visitation, the court’s focus is firmly on ensuring the child’s welfare, emotional development, and stability throughout the visitation process. This means maintaining a consistent and stable visitation schedule that helps the child feel secure. The quality of the relationship between the child and the visiting parent is a critical factor, with a positive and strong bond being seen as beneficial for the child. Safety and well-being during visitation are paramount, so the court carefully examines the environment and the visiting parent’s ability to provide a nurturing and secure space. Additionally, the court assesses the parents’ fitness and capacity to provide a stable and loving environment during visitation.

Published on: March 27, 2023

Weight a teenage child’s preference should be given in a custody dispute. Newton v. McFarlane, 174 A.D.3d 67 (N.Y. App. Div. 2019)

by Stephen Bilkis

In New York custody disputes, the weight given to a teenage child’s preferences can significantly impact the court’s decision. While the child’s input is considered, it’s not the sole determinant in custody proceedings. Judges take various factors into account, including the child’s age, maturity level, and ability to articulate their wishes. Additionally, the court evaluates the child’s relationship with each parent, their living arrangements, and overall well-being. While a teenager’s desires are taken seriously, the court ultimately prioritizes the child’s best interests.

Background

In 2013, the Family Court awarded sole legal and physical custody of the parties’ child, a 17-year-old girl, to the father. This decision was affirmed by the court. In 2016, the mother initiated her third attempt at custody modification, seeking sole legal and physical custody. Despite objections from the child’s attorney, the Family Court conducted a full custody hearing without assessing if the mother had alleged a sufficient change in circumstances. Following the hearing, the Family Court concluded that the mother demonstrated changed circumstances justifying sole custody, stating it was in the child’s best interests. However, the court failed to provide a detailed explanation for its decision in the order, promising a full decision that was never issued.

Published on: December 26, 2022

Because of a mother’s pattern of false accusations against the father, the court modified the custody order. Aquitani v. Aquitani (In re a Custody Proceeding Under Article 6 of the Family Court Act), 2022 N.Y. Slip Op. 50730 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

In New York, courts will only modify a custody order if there has been a change in circumstances. Examples, a change in circumstances include one parent abusing the child or substance abuse. In Aquitani v. Aquitani, there is a history of the mother accusing the father of abuse. Those accusations as well as the father alleging that the mother had a substance abuse problems are the basis of the father’s request to modify the custody order.

In addition to hearing testimony from the parents, the court ordering a Lincoln hearing during which the judge heard testimony from the child regarding his custody and visitation preferences.

Background

Published on: December 14, 2022

Court awarded sole custody to mother because she was better able to provide for the needs of the child. a Child Custody Proceeding Under Article 6 of Family Court Act v. TD, 2019 N.Y. Slip Op. 52151 (N.Y. Fam. Ct. 2019)

by Stephen Bilkis

When it comes to child custody, the preference of the court is to award the parents joint custody because that is what is generally in the best interests of the child. In this case, each parent sought sole legal and physical custody. The court had to figure out if joint custody was feasible and in the best interest of the child or if awarding one of the parents sole custody was appropriate.

Background

Petitioner father and respondent mother are the parents of a 2-year old child, born on June 21, 2017. The couple was never married. Paternity was established on November 22, 2017. The couple had an agreed upon parenting schedule, but did not follow it. Thereafter, Petitioner sought sole legal and physical custody of the child, asserting that his work schedule was more flexible. In the alternative, petitioner requests one day of parenting time a week. In response, the mother also filed a petition seeking sole legal and physical custody of the child.

Published on: December 12, 2022

Court refused father’s request for a temporary modification to custody order. K.A. v. N.Q. (In re a Proceeding Under Article 6 of Family Court Act), 2022 N.Y. Slip Op. 50187 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

When a court issues a custody order, it is designed to be permanent. Typically, courts consider a substantial amount of evidence from both parents before making a decision on custody. The goal of the court is to do what is in the best interests of the child. Generally, that would be joint custody and relatively equal parenting time. Before issuing the order, the court would consider each parent’s financial situation, each parent’s living environment, who has been the primary caregiver, the parents’ ability to communicate with other, and the each parent’s interest in supporting the other parent’s relationship with the child. Thus, the court will only change a custody order if there has been a change in circumstances.

Generally, when a parent petitions the court about modifying a custody agreement, the parent requests a permanent change to the order because of a change in circumstances. However, there are instances in which the parent requests a temporary change in a custody. In K.A. v. N.Q. the father asked the court to temporary give him sole custody and physical custody until the mother received help for her anger issues.

Background

Published on: December 7, 2022

Where parents disagreed on vaccination issue, the Family Court gave the mother final decision-making authority. L.N. v. V.V., 2019 N.Y. Slip Op. 52174 (N.Y. Fam. Ct. 2019)

by Stephen Bilkis

When parents are awarded joint custody and joint decision-making, it is because that is in the best interests of the child. When issuing such an order, the court has also determined that the parents get along well enough to make parenting decisions jointly, despite disagreeing on some issues. When parents don’t agree and are unable to compromise, the parents often seek a custody modification from the court.

Even in cases where parents are otherwise able to make joint decisions, the issue of vaccinations has been an area of disagreement between parents, leading to litigation. In L.N. v. V.V., the court was asked to give one parent final decision-making authority since the parties were at an impasse on the issue of vaccinations.

Background

Published on: December 5, 2022

Court awarded mother sole custody where father intentionally limited the mother’s access to the child. Matter of T.D. v E.P.B. 2022 NY Slip Op 50971(U)

by Stephen Bilkis

Courts want children to have access to both parents and want children to have the opportunity to have positive, loving relationships with both parents. As a result, unless there are convincing reasons not to, the court will order joint custody. This has been found to be in the best interests of the child. However, when parents demonstrate an unwillingness to support the child having a positive relationship with the other parent, the court will adjust custody. In the Matter of T.D. v E.P.B., the Family Court was asked to modify a custody order after the father’s repeatedly limited the mother’s access to the child and removed the child from New York.

Background

The parents have one child who was born in 2015. In 2016, Family Court ordered joint legal and physical custody of the child. However, the father dominated the relationship, making decisions without including the mother. With the help of this girlfriend, he even convinced her to sign an out-of-court agreement that purported to give him sole custody and the mother supervised visitation. In 2020, the father relocated to Florida with the child and without the consent of the mother.

Published on: November 30, 2022

Grandparents petitioned the court for sole custody and the cessation of the child’s visits with the father. Matter of Brady S v Darla B 2020 NY Slip Op 51619(U)

by Stephen Bilkis

Under some circumstances, grandparents are awarded custody. The court will award grandparents custody if it is in the best interests of the child. However, it has been well-established that having a relationship with the parents is generally preferable, and the court will seek to give parents and their children opportunities to foster positive relationships.

In Matter of Brady S v Darla B, the court was asked to decide whether it was in the best interests of the child to award sole custody to the grandparents or to the child’s father.

Background

Published on: November 28, 2022

Agencies must make reasonable efforts to reunify parents with their children. In re Jose F., 70 Misc. 3d 1211, 136 N.Y.S.3d 875 (N.Y. Cnty. Ct. 2020)

by Stephen Bilkis

When parents have intellectual or cognitive delays and mental health problems, parenting can be even more challenging than it generally is. It is not unusual for agency involvement and for the children to be removed. However, the goal is still for biological parents to have a role in the lives of their children as long as it is in the best interests of the children. Specific accommodations must be made in order to give the biological parents the opportunity to successfully parent their children. In the case of In re Jose F., the Family Court, Kings County was asked to decide on a permanency plan for two children whose parents had cognitive deficiencies.

Background

Jose, who was 6 weeks, was brought to the hospital. He was significantly underweight and malnourished. Because of the condition of the child and the parents were both mentally delayed the hospital was concerned for the well-being of the child. In fact, they were concerned that the child would die if his parents continued to care for him as they were not aware as to how to care for a child. In addition, the mother was alleged to have bipolar disorder and was not taking her medication. Jose was removed from their care. A second child was born a year later. By that time the parents had made sufficient progress that such that they were permitted to have limited unsupervised time during their agency visits with Jose. Still, a new petition for neglect was filed. Both children were remanded to ACS and both remain in foster care. A permanency hearing was scheduled pursuant to article 10-A of the Family Court Act.

Published on: November 23, 2022

Is establishing paternity in the best interests of a child who had been living with a foster family? Wilson D. v. Anne B., 2021 N.Y. Slip Op. 51144 (N.Y. Fam. Ct. 2021)

by Stephen Bilkis

The long-standing policy in New York has been that parents have the right to have a relationship with their children and that it is generally in the best interests of the child for the courts to give parents and children the opportunity to foster a positive relationship. However, there are circumstances where the court finds that it would be in the best interests of the child to not have a relationship with a parent. In Wilson D. v. Anne B., the court was asked to decide if it would be in the best interests of the child to establish paternity where a child had been living in foster care and a bond had developed between the child and the foster parents.

Background

While incarcerated, the putative father of the child filed a petition for custody. Because paternity had not been established, the court held his petition in abeyance pending the court of a paternity test. Meanwhile the child has been placed in foster care and the foster parents developed a close bond with the child.