Custody

Published on: October 12, 2022

Can parental access to a child be conditioned on COVID vaccination or COVID testing?, C.B. v. D.B., 2021 NY Slip Op 21268

by Stephen Bilkis

While vaccinations have been around for decades, none have caused as much controversy as the COVID vaccine. In C.B. v. D.B., the Supreme Court, New York County, was asked to determine whether a custodial parent require the noncustodial parent to be vaccinated or show a negative test as a condition for assess to the child.

Background

The parties were married in 2015, and their child, a daughter, was born in 2018. After intense marital discord, the mother (plaintiff) commenced this action for divorce in September of 2019. The mother, describing defendant’s history of substance abuse and untreated mental health issues, as well as the significant periods where he had not seen the child at all, sought to have the father’s access subject to supervision. The court agreed.

Published on: October 5, 2022

In determining whether a custodial parent has the right to relocate with the child depends on whether doing so would be in the best interests of the child. H.K. v R.C. 2021 NY Slip Op 21190

by Stephen Bilkis

When a court makes a decision about custody, parent access, and other aspects related to the custody and care of a child, the court’s decision must be based on what is in the best interests of the child. In H.K. v R.C., the Supreme Court, New York County, was asked to decide whether a parent’s request to relocate over the objection of the noncustodial parent was in the best interests of the child.

Background

The parties have a parenting agreement dated October 28, 2015 (the “Agreement”), which was incorporated into the Judgment of Divorce that was signed on September 19, 2016. Under its terms, the parties have joint legal custody of the child, but it is specified that the child is to “reside primarily with the Mother.” The Agreement provides father with a regular access schedule of alternate weekends, along with one weekly weekday dinner. It also entitles him to substantial holiday and vacation parenting time.

Published on: October 5, 2022

The presumption that a child born to a marriage is the legitimate child of both parents applies equally to a non-biological parent in a same-sex marriage, Wendy G-M. v. Erin G-M., 985 N.Y.S.2d 845 (N.Y. Sup. Ct. 2014)

by Stephen Bilkis

In New York there is a presumption that a child born to a marriage is the legitimate child of both parents. The issue before the Supreme Court of New York, Wendy G-M. v. Erin G-M is whether his same presumption also applies to both parties in a same-sex marriage.

Background

Plaintiff Wendy G-M. and her spouse, Defendant Erin G-M. were married. They were legally married in Connecticut before New York enacted the Marriage Equality Act. Wendy and Erin agreed to have a child together and agreed that the birth mother would undergo artificial insemination. Wendy and Erin also agreed that both the birth mother and the spouse would be the mothers of any child born from the procedure. A child was born to Wendy, who was the birth mother, and the birth certificate listed both Wendy and Erin as the parents. Soon afterward, however, Wendy and Erin separated. Wendy filed for divorce in December 2013, less than then three months after the birth of the child. Wendy would not permit Erin to visit with the child. Erin then filed a request with the Supreme Court of New York for access to the child, maintenance, and attorney fees. In opposition, Wendy argued that Erin was not a legal mother of the child.

Published on: October 3, 2022

What impact should domestic violence have on a custody determination? Wissink v. Wissink, 749 N.Y.S.2d 550 (App. Div. 2002)

by Stephen Bilkis

In Wissink v. Wissink, there was conclusive evidence that the father physically abused the mother. However, there was also conclusive evidence that the father never physically abused the daughter and that the daughter wanted to live with him. The issue that the Appellate Division considered was the impact of a finding of abuse should have on a determination of custody?

Background

Defendant David Wissink and Plaintiff Jane Wissink were married and have a teenage daughter named Andrea, born on June 21, 1986. She is the biological child of the Jane and David. Jane also has a daughter, Karin, by a prior marriage. The parties have had a turbulent relationship marked by numerous episodes of physical violence, police intervention, and Family Court orders of protection. It is clear that David frequently battered Jane. However, he never directly mistreated Andrea, and Andrea favored him over her mother.

Published on: September 26, 2022

A custody agreement providing for a specific religious upbringing will be enforced only if it is in the best interests of the child. Weisberger v. Weisberger, 60 N.Y.S.3d 265 (2017)

by Stephen Bilkis

In Weisberger, the Supreme Court was asked to enforce a religious upbringing clause in the parties’ separation agreement that required to the mother to practice full religious observance in accordance with the Hasidic practices or be relegated to supervised therapeutic visitation.

Background

Plaintiff Naftali Weisberger and Defendant Chava Weisberger married in 2002 and divorced I 2009. They had 3 children. In a stipulation of settlement dated November 3, 2008, the parties agreed to joint legal custody of the children with the mother having primary residential custody. They agreed that the father’s visitation with the children would consist of a two-hour period once per week after school; overnight visitation every other Friday after school until Saturday evening for the observance of the Sabbath; for two consecutive weeks every summer; and an alternating schedule for holidays. The stipulation also contained a religious upbringing clause that the children would be raised Hasidic and that Naftali would choose the children’s school. It further provided that Naftali would pay child support. However, Naftali never paid child support and did not fully exercise his visitation rights.

Published on: September 26, 2022

In a tri-custody case, the Supreme Court, Suffolk County, considered whether a de facto third parent establish legal custody rights. Dawn M. v. Michael M., 47 N.Y.S.3d 898 (2017)

by Stephen Bilkis

With the increasing number of people involved in polyamorous relationships, it is not surprising for the issue of child custody to develop where there are three individuals are in the household raising the child. In Dawn M. v. Michael M., a husband (biological father), his wife, and another woman (biological mother)—decided to conceive and raise a child and the three parties lived together as a family for the first eighteen months of the child’s life. Some time after the husband wife divorced, the ex-wife, who was not the child’s biological mother, became concerned about her legal rights with respect to child custody.

Background

Plaintiff Dawn M. and Defendant Michael M. married in 1994. They tried unsuccessfully to have a child. Dawn became close friends with Audria, and in 2004 Audria moved in with the couple. The three began having three-way sexual relations. As time went on, Audria, Dawn, and Michael began to consider themselves a “family” and decided to have a child together. In 2007 the child was born. Dawn and Audria shared maternal responsibilities. The child called both Dawn and Audria “mommy” and considered both women as his mother.

Published on: September 21, 2022

New York Supreme Court discussed the concept of zones of final decision-making authority in point custody situations. J.R. v. M.S., 55 N.Y.S.3d 873 (2017)

by Stephen Bilkis

Child-rearing decisions are often challenging when couples divorce or otherwise end their romantic relationship. In some cases, there is so much animosity between parents that they are unable to effectively communicate with respect to the needs of the child. In J.R. v. M.S., the New York Supreme Court was asked to decide on the custody arrangement where they had a history of having trouble working together to make certain child-rearing decisions.

Background

The parties were married in 1999. There were tensions throughout their marriage and the tensions intensified after the birth of their only child in 2007. In 2013, the father revealed he had an affair and the couple separated. In January 2014, the father filed for divorce. In September 2014, the parties entered into an agreement setting forth an interim parental access schedule. For the next two years, the parties attempted to agree on a parenting plan. There were countless settlement conferences and numerous draft agreements. Ultimately, the parties were unable to reach a compromise.

Published on: September 19, 2022

Appellate Division determined that child support payments may be suspended if the custodial parent unjustifiably prevented access to the child. Usack v. Usack, 17 A.D.3d 736 (N.Y. App. Div. 2005)

by Stephen Bilkis

Generally, child support and custody are two different issues. Parental access is not based on the amount of child support is paid or whether it is paid on time or is in arrears. This means that a parent who has been ordered to pay chid support cannot stop paying child support simply because they have not had access to the child. In Usack v. Usack, the Appellate Division was asked to review this general rule in circumstances where the custodial parent intentionally prevents the non-custodial, child support paying parent access.

Background

Plaintiff James Usack and Defendant Linda Usack were married for 20 years and had three children. Linda had a good relationship with the children. After Linda had an affair with another man, James filed for divorce. James told the children about the affair, and from that point on, the children’s relationship with Linda was strained. The Supreme Court of New York granted James custody of the children and ordered Linda to pay child support a portion of the uninsured medical expenses for all three children.

Published on: September 12, 2022

The ICWA is applicable to the adoption of a Native American child even if the child’s Native American parents do not participate in tribal life. In re Baby Boy C., 805 N.Y.S.2d 313 (2005)

by Stephen Bilkis

The Indian Child Welfare Act of 1978 (ICWA) was enacted in response to practices that separated large numbers of Native American children from their families and tribe. See 25 USC § 1901 et seq. It is common for representatives from the relevant Indian tribe to intervene in child custody proceedings involving Indian children. The ICWA established certain placement preferences for Indian children who, as in the case of In re Baby Boy C., are no longer in their parents’ custody.

Background

Defendant Rita C., a Native American member of the Tohono O’odham Nation tribe (Tribe), gave birth to Baby Boy C. in March 2004. The father, Justin W., was not Native American. Rita grew up in a tribal community but eventually left it and no longer participated in its political, social, and religious affairs. Her other children were not being raised in a tribal community.

Published on: September 5, 2022

Appellate Division found that a trial court cannot confirm a custody order that was determined by arbitration. Schechter v. Schechter, 63 A.D.3d 817, 881 N.Y.S.2d 151 (2009)

by Stephen Bilkis

In Schechter v. Schechter, the court considered whether a religious arbitration tribunal could determine child custody and whether the Supreme Court could then confirm the arbitration decision.

Background

David Schechter, the plaintiff and Wendy Zehava Schechter, the defendant entered into an agreement pursuant to which they agreed to arbitrate all marital issues between them before a rabbinical arbitration tribunal, the Bais Din. The Bais Din wrote a decision, awarding the parties joint custody of the couple’s 14-year-old daughter. David filed a motion to confirm the arbitration agreement before the Supreme Court, Nassau County, the appropriate trial court. Wendy consented to the trial court confirming the award with certain exceptions.