New York Family Law Blog

Published on: August 3, 2024

Court upheld denial of motion to vacate order of protection due to lack of meritorious defense evidence. Thompson-Richmond v. Perez, 157 A.D.3d 801 (N.Y. App. Div. 2018)

by Stephen Bilkis

In family law cases, orders of protection play a critical role in ensuring the safety and well-being of individuals. The case of Thompson-Richmond v. Perez, 157 A.D.3d 801 (N.Y. App. Div. 2018) demonstrates how the courts evaluate motions to vacate default orders of protection.

Vacating an order of protection in New York involves asking the court to cancel or set aside an order that was previously issued. A party can request this under specific circumstances, such as proving they were not properly notified of the court proceedings, providing a reasonable excuse for failing to appear, or showing a significant change in circumstances. The party must also present a potentially meritorious defense or reason why the order should no longer be in effect. Courts assess these requests carefully, balancing the petitioner’s rights with the safety and well-being of the protected individual.

Background Facts

Published on: July 31, 2024

Family Court’s authority to modify settlement agreements. Deborah K. v. Richard K., 203 A.D.3d 433 (N.Y. App. Div. 2022)

by Stephen Bilkis

In Deborah K. v. Richard K., 203 A.D.3d 433 (N.Y. App. Div. 2022), a father appealed an order regarding child support and spousal support payments. The court’s decision, entered on March 6, 2020, addressed objections raised by both parties regarding previous orders issued by a Support Magistrate.

Background Facts

In the case before the Family Court of New York County, the dispute stemmed from a stipulation of settlement agreement entered into by the parties on February 26, 2013. A stipulation of settlement agreement in New York is a legal document that outlines the terms and conditions agreed upon by parties involved in a legal dispute, typically in the context of a divorce or family law matter. It serves as a formal agreement reached through negotiation or mediation, whereby the parties agree to resolve their differences and settle their legal issues outside of court.

Published on: July 24, 2024

Extending a Family Court order of protection due to willful violation. Sicina v. Gorish, 209 A.D.3d 658, (N.Y. App. Div. 2022)

by Stephen Bilkis

In Sicina v. Gorish, 209 A.D.3d 658, (N.Y. App. Div. 2022) the court considered whether to extend an order of protection. In New York, a family court order of protection may be extended for various reasons, including instances where the order has been violated. When a violation occurs, the court may opt to extend the duration of the order to provide continued protection to the petitioner.

One primary reason for extending an order of protection is to ensure the safety and well-being of the petitioner and any other individuals covered by the order. If the court finds that the respondent has willfully violated the terms of the order, it may view this as evidence that the threat to the petitioner still exists. Therefore, extending the order allows the court to maintain safeguards against potential harm.

Moreover, extending an order of protection serves as a deterrent to future violations. By imposing additional time on the order, the court sends a clear message that violations will not be tolerated and that consequences will follow. This can act as a deterrent to the respondent, discouraging further attempts to breach the terms of the order.

Published on: July 22, 2024

Appellate Division considered whether extraodinary circumstances existed warranting custody by grandparents. Anne MM. v. Vasiliki NN. 2022 N.Y. Slip Op. 2161 (N.Y. Sup. Ct. 2022)

by Stephen Bilkis

Anne MM. v. Vasiliki NN. 2022 N.Y. Slip Op. 2161 (N.Y. Sup. Ct. 2022), involves a question of grandparents rights and the concept of extraordinary circumstances. In the context of a child custody case involving grandparents, “extraordinary circumstances” refers to specific situations or conditions that are deemed exceptional or unusual, warranting the court’s intervention to grant custody or visitation rights to the grandparents over the biological parents. These circumstances must demonstrate that the child’s well-being and best interests are significantly compromised if custody or visitation remains with the parents.

Examples of extraordinary circumstances may include instances of surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody, or other similarly severe conditions. For instance, if a parent engages in gross misconduct or displays behaviors indicating utter indifference or irresponsibility towards the parental role, such as allowing the child to live in squalor, failing to address serious substance abuse or mental health issues, or exhibiting instability in housing or employment, these could constitute extraordinary circumstances.

The court examines the aggregate of behaviors and circumstances to determine if they rise to the level of being extraordinary. It’s not merely about isolated incidents but rather about patterns of behavior or conditions that substantially impact the child’s well-being and development.

Published on: July 15, 2024

Appellate Division ordered a custody modification hearing due to alleged changes in circumstances and caregiving. O’Mahoney v. O’Mahoney, 206 A.D.3d 819(N.Y. App. Div. 2022)

by Stephen Bilkis

In a matrimonial case involving child custody and economic provisions, the Supreme Court of Queens County addressed the defendant’s request to modify the custody arrangement and to vacate the economic provisions of the divorce judgment. This case underscores how courts evaluate requests for custody modification and challenges to economic terms based on alleged changes in circumstances and claims of fraud.

Background Facts

The parties married in 2004 and divorced by judgment dated May 4, 2016. They were awarded joint legal custody of their two children, born in 2011, with residential custody granted to the plaintiff and parental access to the defendant. The judgment also required the defendant to pay $25 per month in child support. Neither party sought maintenance during the divorce proceedings.

Published on: July 15, 2024

Where a divorce was finalized in Vermont, can New York Family Court modify the provisions of the divorce decree related to parental access? Etzel v. Freleng 188 A.D.3d 1054 (N.Y. App. Div. 2020)

by Stephen Bilkis

In Etzel v. Freleng, 188 A.D.3d 1054 (N.Y. App. Div. 2020), the Appellate Division addressed issues pertaining to jurisdiction in custody disputes where the divorce decree establishing custody was issued in Vermont.

Jurisdiction in divorce and custody cases is paramount for ensuring the proper adjudication of legal matters surrounding the dissolution of marriage and the welfare of children. One fundamental aspect of jurisdiction involves residency requirements, which mandate that parties must reside within a particular jurisdiction for a specified period before initiating legal proceedings. These requirements serve to establish a connection between the parties and the jurisdiction in which they seek relief, ensuring that the court has a legitimate basis for asserting authority over the case. Importantly, once a court in one state issues a custody order, that decision generally cannot be modified by another state. This principle upholds the finality of court decisions and prevents jurisdictional conflicts that could harm the child’s well-being.

Background Facts

Published on: July 10, 2024

Leathers v. Smalls 192 A.D.3d 892 (N.Y. App. Div. 2021)

by Stephen Bilkis

In Leathers v. Smalls 192 A.D.3d 892 (N.Y. App. Div. 2021), a case heard by the Family Court of Westchester County, the father appealed from two court orders related to child support obligations. The case involved a dispute over the father’s compliance with a child support order and the subsequent consequences imposed by the court.

In New York, child support is determined based on a standardized formula outlined in the Child Support Standards Act (CSSA). This formula considers several factors, including each parent’s income, the number of children requiring support, and certain expenses such as daycare and medical insurance premiums. The CSSA provides a guideline percentage of the non-custodial parent’s income to be allocated for child support, with adjustments made for various circumstances such as shared custody or extraordinary expenses. Courts typically use this formula to calculate child support obligations, ensuring consistency and fairness in support determinations across cases. However, courts may deviate from the guideline amount under certain circumstances, such as when the application of the formula would be unjust or inappropriate.

Background Facts

Published on: July 8, 2024

Whether the biological father’s consent was necessary for adoption. In re Baby O. 181 A.D.3d 606 (N.Y. App. Div. 2020)

by Stephen Bilkis

In re Baby O. 181 A.D.3d 606 (N.Y. App. Div. 2020) involves a contested private placement adoption case adjudicated by the Family Court of Suffolk County, focusing on the biological father’s appeal against two court orders. The first order, dated October 25, 2018, determined that the father’s consent wasn’t needed for adoption. The second, on January 30, 2019, affirmed that the adoption served the child’s best interests.

Background Facts

In a contested private placement adoption case, the biological father appealed from two orders of the Family Court, Suffolk County, dated October 25, 2018, and January 30, 2019. The first order determined that his consent was unnecessary for the adoption, while the second found the adoption to be in the child’s best interests. The child in question was born out of wedlock in May 2017 in Pennsylvania. The biological father, incarcerated shortly after learning of the pregnancy, remained in prison throughout the pregnancy. The adoptive parents were present at the child’s birth and took custody of the newborn the next day. They subsequently filed for adoption in the Family Court, Suffolk County, after receiving approval from the Pennsylvania Interstate Compact on the Placement of Children office. Following hearings, the court ruled that the biological father’s consent was unnecessary for adoption and that it was in the child’s best interests to be adopted by the petitioners. The biological father contested these decisions.

Published on: July 3, 2024

In re Isabela P. (Anonymous) No. 2020-01085 (N.Y. App. Div. Jun. 9, 2021)

by Stephen Bilkis

A determination of neglect signifies a legal finding that a parent or caretaker has failed to provide adequate care, supervision, or guardianship for a child. It means that the court has concluded, based on the evidence presented, that the child’s physical, mental, or emotional well-being has been impaired or is at risk of impairment due to the parent or caretaker’s actions or omissions. This determination is typically made after a thorough assessment of the circumstances surrounding the child’s care and any evidence of harm or potential harm to the child.

This case revolves around a father’s appeal from an order of disposition issued by the Family Court, Queens County, dated September 4, 2019. The order, made after a fact-finding and dispositional hearing, found that the father neglected the subject child and released the child to the custody of the nonrespondent mother. The father contests this decision, prompting an appeal.

Background Facts

Published on: July 1, 2024

Determining jurisdiction over a custody case. Montanez v. Tompkinson, 167 A.D.3d 616 (N.Y. App. Div. 2018)

by Stephen Bilkis

Jurisdiction over a custody decision is typically determined based on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) guidelines, which prioritize the child’s “home state” as the primary jurisdiction for custody matters. The “home state” is defined as the state where the child has resided with a parent or guardian for a continuous period of at least six months prior to the custody proceeding’s initiation. If the child has no “home state” or if there is a dispute regarding jurisdiction, other factors such as significant connections with the state and substantial evidence relating to the child’s care, protection, training, and personal relationships are considered.

Additionally, courts may decline jurisdiction if it is determined to be an inconvenient forum and another state is deemed more appropriate based on factors such as the child’s connections to each state, the location of evidence and witnesses, and the parties’ ability to present their case effectively. Ultimately, the overarching goal is to ensure that custody decisions are made in the jurisdiction that can best serve the child’s interests and welfare.

Background Facts