New York Family Law Blog

Published on: June 5, 2024

Court considered the validity of the restrictions imposed on the father’s parental access to his children. In re Fatuma I., 2022 N.Y. Slip Op. 7234 (N.Y. App. Div. 2022)

by Stephen Bilkis

In In re Fatuma I., 2022 N.Y. Slip Op. 7234 (N.Y. App. Div. 2022), the father appeals from an order dated January 13, 2022, which imposed restrictions on his parental access to his children. The court directed that the father could only have supervised access and prohibited him from being alone with the children or staying overnight in their home.

Background Facts

The subject children were removed from their parents’ care in 2015 due to allegations of sexual abuse and derivative abuse. Derivative abuse refers to a situation where a child has been subjected to abuse or neglect as a result of being in the care of someone who has abused or neglected them indirectly. For example, if a child is exposed to domestic violence between their parents or caregivers, even if they are not the direct target of the abuse, they may still suffer emotional or psychological harm, which is considered derivative abuse. Similarly, if a child witnesses substance abuse or other harmful behaviors by a caregiver, it can have detrimental effects on their well-being, constituting derivative abuse. Essentially, it involves harm suffered by a child due to the actions or behaviors of those responsible for their care, even if the abuse or neglect is not directly inflicted upon the child themselves.

Published on: June 3, 2024

Whether New York possesses initial child custody jurisdiction, considering the children’s residency outside the state. Matter of E.P. v B.S. 2023 NY Slip Op 23318

by Stephen Bilkis

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a set of laws enacted in all 50 states of the United States, including New York, to provide a legal framework for determining which state has jurisdiction over child custody matters. The primary aim of the UCCJEA is to prevent jurisdictional conflicts and ensure that custody decisions are made in the best interests of the child.

In New York, the UCCJEA is codified under Domestic Relations Law (DRL) §§ 75-a to 77-b. These provisions outline the rules and procedures for determining jurisdiction in cases involving child custody, visitation, and relocation across state lines.

One of the key principles of the UCCJEA is the concept of “home state” jurisdiction. Under DRL § 75-a(7), the “home state” is defined as the state where the child has lived with a parent or guardian for at least six consecutive months prior to the commencement of a custody proceeding. This provision ensures that the state with the closest connection to the child is given priority in deciding custody matters.

Published on: May 29, 2024

Whether mother should be required to pay back child support that father paid after children turned 21. Frederick-Kane v. Potter 187 A.D.3d 1436 (N.Y. App. Div. 2020)

by Stephen Bilkis

The case before the Family Court of Albany County involved an appeal from an order dated November 16, 2018. This order addressed a modification of child support, highlighting the complexities surrounding parental obligations post-divorce.

In New York, child support modification can be pursued under certain circumstances outlined in the statutes. Family Court Act § 451 provides the grounds for modifying an existing child support order. One such ground is a substantial change in circumstances since the entry of the last child support order. This change must be significant and ongoing, affecting either the financial situation of the parents or the needs of the child.

Another ground for modification is the passage of three years since the entry of the last child support order, or since the order was last modified, whichever is later. This provision allows for a review of child support obligations to ensure they remain fair and appropriate over time.

Published on: May 27, 2024

Whether the consent of the father is required for adoption. Statini v. Reed 2022 N.Y. Slip Op. 4304 (N.Y. App. Div. 2022)

by Stephen Bilkis

In general, it is necessary for both parents to consent to an adoption to ensure that the child’s best interests are protected and to maintain the integrity of the family unit. This requirement serves as a safeguard to prevent the involuntary termination of parental rights and ensures that both parents have a say in the future of their child. By requiring the consent of both parents, the adoption process aims to promote stability and permanency for the child while respecting the rights of biological parents. Additionally, obtaining consent from both parents helps to establish a legal framework for the adoption, providing clarity and certainty for all parties involved. However, there are exceptions to this general rule.

In Statini v. Reed, 2022 N.Y. Slip Op. 4304 (N.Y. App. Div. 2022), the Family Court of Dutchess County faced the issue of the legalities surrounding an adoption of a child with the consent of the father.

Background Facts

Published on: May 22, 2024

Requirement of supervised visitation challenged by mother. Thompson v. Thompson, 2023 N.Y. Slip Op. 2202 (N.Y. App. Div. 2023)

by Stephen Bilkis

In this case the mother challenged the father being awarded sole custody and the requirement of her visitation being supervised.

Background Facts

In July 2021, the Family Court of Onondaga County awarded the petitioner, the father, sole legal and primary physical custody of the children involved. Additionally, it provided the mother with supervised visitation rights, stipulating that the specifics of these visitations be mutually agreed upon by both parents. This decision was subsequently appealed by the mother, who contested several aspects of the ruling.

Published on: May 20, 2024

Spousal support claims abates upon the death of either party. Bomer v. Dean, 195 A.D.3d 1518 (N.Y. App. Div. 2021)

by Stephen Bilkis

Abatement is the act of reducing or nullifying something. There are several different types of abatement. For example, when it comes to a testamentary gift, abatement refers to the reduction in the value of a specific bequest due to insufficient funds in the estate to fulfill all bequests proportionately.

In the context of divorce or family law, abatement upon death refers to the termination or nullification of certain legal actions or claims following the death of one of the parties involved. In Bomer v. Dean, 195 A.D.3d 1518 (N.Y. App. Div. 2021), the New York court considered the issue of the abatement of divorce actions upon the death of a party involved.

Background Facts

Published on: May 15, 2024

Was there sufficient evidence to vacate an acknowledgement of paternity? C.R. v. Y.P., 2020 N.Y. Slip Op. 50603 (N.Y. Fam. Ct. 2020)

by Stephen Bilkis

C.R. v. Y.P., 2020 N.Y. Slip Op. 50603 (N.Y. Fam. Ct. 2020) involves the determination of fatherhood for a child born to respondent Y.P. (referred to as Ms. P) and listed on the birth certificate as J.E., with S.D.E. acknowledged as the father. However, petitioner C.R. contested this acknowledgment, asserting his own paternity over J.E.

Background Facts

C.R. v. Y.P. involves the determination of paternity for a child named J.E., born to respondent Y.P. (referred to as Ms. P). The birth certificate, filed shortly after J.E.’s birth, listed S.D.E. as the father, based on an acknowledgment of paternity signed by S.D.E. and Ms. P. However, petitioner C.R. contested this acknowledgment, claiming to be J.E.’s biological father.

Published on: May 13, 2024

Was there a valid finding of neglect on the part of the stepmother such that an order of protection was warranted. In re Kayla K. 2022 N.Y. Slip Op. 2668 (N.Y. Sup. Ct. 2022)

by Stephen Bilkis

In New York family court, obtaining an order of protection requires meeting a specific standard. Pursuant to the Family Court Act, the petitioner must demonstrate the existence of family offenses by a fair preponderance of the evidence. This standard necessitates showing that it is more likely than not that the alleged conduct occurred. Family offenses include various acts such as harassment, assault, stalking, and other forms of domestic violence.

The petitioner bears the burden of proof in establishing the allegations of the family offense petition. This means they must present evidence and testimony to support their claims. The court evaluates the credibility of the witnesses and weighs the evidence presented before making a determination.

The court’s decision regarding the issuance of an order of protection is based on its findings of fact. It must determine whether the alleged conduct meets the criteria for a family offense and whether the petitioner has sufficiently proven their case. The court may consider factors such as the nature and severity of the alleged conduct, any history of violence or abuse, and the safety and well-being of the parties involved.

Published on: May 8, 2024

Whether grandparents should be given court-ordered visitation rights. Va. HH. v. Elijah, 211 A.D.3d 1201 (N.Y. App. Div. 2022)

by Stephen Bilkis

Va. HH. v. Elijah, 211 A.D.3d 1201 (N.Y. App. Div. 2022) involves an appeal from a Family Court order regarding visitation rights between the grandparents and the children of divorced parents. In New York, grandparents may seek visitation rights with their grandchildren under certain circumstances. The law acknowledges the importance of maintaining family relationships and allows grandparents to petition for visitation if they can demonstrate a sufficient existing relationship with their grandchildren or make efforts to establish one. This typically involves showing that the parents have frustrated the grandparent-grandchild relationship or that efforts to foster such a relationship have been made. Grandparents must prove that the court’s intervention is warranted in the best interests of the child.

However, obtaining visitation rights as a grandparent can be challenging. Courts prioritize the rights of fit parents and presume that their decisions align with the child’s best interests. Therefore, grandparents must overcome this presumption by providing compelling evidence that visitation with them would benefit the child and enhance their overall well-being.

Factors considered by the court include the nature and quality of the grandparent-grandchild relationship, the ability of the grandparents to nurture the child, and the reasons for any objections raised by the parents. Additionally, the court may take into account the child’s preferences and the recommendations of any attorneys appointed to represent the child’s interests.

Published on: May 6, 2024

When the parents had a contentious relationship, the court had to determine the appropriate custody arrangement. a Child Custody Proceeding Under Article 6 of Family Court Act SB v. AS, 2020 N.Y. Slip Op. 50121 (N.Y. Fam. Ct. 2020)

by Stephen Bilkis

The court’s primary aim in custody disputes is to ensure the well-being and best interests of the child. One way it seeks to achieve this is by favoring joint custody arrangements whenever possible. Joint custody allows both parents to remain actively involved in the child’s life, providing them with emotional support, guidance, and stability from both maternal and paternal figures. This arrangement can promote a sense of security and continuity for the child, as they maintain regular contact and relationships with both parents.

Moreover, joint custody acknowledges the importance of fostering a healthy co-parenting dynamic. When parents are amicable and able to cooperate effectively, joint custody can minimize conflict and reduce the negative impact of divorce or separation on the child. It encourages parents to communicate openly, make decisions together, and prioritize the child’s needs above personal differences or disputes.

However, despite the court’s preference for joint custody, there are circumstances where this arrangement may not be feasible or in the child’s best interests. When parents exhibit hostility or antagonism towards each other, it can create a toxic environment that adversely affects the child’s emotional and psychological well-being. In such cases, joint custody may exacerbate conflict and instability, leading to further distress for the child.