New York Family Law Blog

Published on: March 27, 2024

Daphne M. v. Wanda J. (In re Caleesta S.) 200 A.D.3d 504 (N.Y. App. Div. 2021)

by Stephen Bilkis

In Daphne M. v. Wanda J. (In re Caleesta S.) 200 A.D.3d 504 (N.Y. App. Div. 2021), the court had to determine whether a nonparent should be granted guardianship of a child over a parent.

In New York, circumstances may arise where a nonparent is considered for guardianship over a child instead of a parent. This typically occurs in situations where the child’s parents are unable to provide proper care or when extraordinary circumstances warrant the appointment of a nonparent guardian. Such scenarios often involve the death or incapacity of one or both parents, leading a nonparent relative or family friend to seek guardianship to fulfill the child’s needs.

Additionally, if a parent has abandoned the child or neglected their parental responsibilities, and evidence suggests that the child’s welfare is at risk, a nonparent guardian may be appointed to ensure the child’s safety and well-being. In cases where a parent is deemed unfit due to issues like substance abuse, mental illness, or criminal behavior, the court may opt to appoint a nonparent guardian to protect the child from harm.

Published on: March 25, 2024

Court determined that it was in the best interests of the child for the father to be awarded sole custody. Olea v. Diaz 194 A.D.3d 721 (N.Y. App. Div. 2021)

by Stephen Bilkis

In determining custody arrangements in New York, several factors are considered. One important factor is the child’s established environment. This includes where the child currently lives and attends school, as well as their social connections and daily routines. Courts aim to minimize disruption to the child’s life by prioritizing continuity and stability.

Another factor is parental fitness. This involves assessing each parent’s ability to care for the child’s overall well-being. Factors such as parenting skills, mental and physical health, and the ability to provide a safe and nurturing environment are taken into account. Courts also consider the past behavior and performance of each parent in fulfilling their parental responsibilities.

The child’s expressed preferences also play a role in custody determinations. While the child’s desires are considered, they are not determinative. Instead, courts weigh the child’s preferences against other factors, such as their age, maturity, and the reasons behind their preferences. Older children may have more weight given to their preferences, especially if they are able to articulate reasoned opinions.

Published on: March 20, 2024

Court determined that the ICPC does not apply to out-of-state, noncustodial parents seeking custody of their children. D.L. v. S.B. 2022 N.Y. Slip Op. 5940 (N.Y. 2022)

by Stephen Bilkis

D.L. v. S.B. 2022 N.Y. Slip Op. 5940 (N.Y. 2022) concerns the interpretation of the Interstate Compact on the Placement of Children (ICPC) regarding out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies. The key question revolves around whether the ICPC applies to such situations.

The ICPC is an agreement among U.S. states, the District of Columbia, and the U.S. Virgin Islands. It establishes procedures and requirements for the interstate placement of children who are in need of foster care or adoption services. The primary goal of the ICPC is to ensure that when a child is placed across state lines, they are provided with suitable care and protection, and that all relevant parties involved in the placement process comply with the necessary legal and administrative standards.

Background Facts

Published on: March 13, 2024

Established paternity is not necessary seeking special immigrant juvenile status. In re Mardin M.-I. 2020 N.Y. Slip Op. 5754 (N.Y. App. Div. 2020)

by Stephen Bilkis

In re Mardin M.-I. 2020 N.Y. Slip Op. 5754 (N.Y. App. Div. 2020) is a guardianship case that is also related to seeking Special Immigrant Juvenile Status (SIJS). SIJS provides a pathway to lawful permanent residency, allowing children to live and work legally in the country. This status offers stability and security, granting access to various social services, educational opportunities, and employment prospects that would otherwise be unavailable to undocumented minors.

Moreover, SIJS shields children from deportation proceedings, offering them protection from removal to potentially dangerous or unstable situations in their home countries. It recognizes the vulnerabilities of immigrant children who may have experienced abuse, neglect, or abandonment, and provides a legal mechanism for them to remain in the U.S. under the care of a guardian.

Additionally, SIJS empowers children to reunite with family members or caregivers who can provide them with a safe and supportive environment. By enabling children to petition for SIJS, they are afforded the opportunity to establish permanent ties with responsible adults who can advocate for their well-being and best interests.

Published on: March 13, 2024

In a guardianship case, the court considered whether there was justification for waiving service of process upon the father. In re TN 2020 N.Y. Slip Op. 50548 (N.Y. Fam. Ct. 2020)

by Stephen Bilkis

In In re TN 2020 N.Y. Slip Op. 50548 (N.Y. Fam. Ct. 2020), a case about the guardianship of a minor child, significant constitutional rights were at stake. The petitioner, acting on behalf of the maternal aunt seeking guardianship of the child, filed a motion to waive service of process upon the child’s father. This motion raised critical questions regarding due process and a parent’s fundamental right to the care and custody of their child.

In a guardianship proceeding in New York, the requirement of service of process is a critical component of safeguarding the due process rights of all involved parties, particularly the parents. When initiating a guardianship petition, the petitioner must ensure that proper notice is served upon all interested parties, including the parents of the child in question.

Service of process involves delivering a copy of the petition and relevant legal documents to the respondent or respondents, typically by personal delivery. This step ensures that parents, who are typically considered interested parties in guardianship proceedings, are informed of the legal action being taken and are given an opportunity to participate in the proceedings.

Published on: March 6, 2024

Olga L.G.M. v. Santos T.F. 164 A.D.3d 1341 (N.Y. App. Div. 2018)

by Stephen Bilkis

In Olga L.G.M. v. Santos T.F., 164 A.D.3d 1341 (N.Y. App. Div. 2018), a case concerning a guardianship petition under Family Court Act article 6, a mother appealed from an order dismissing her petition without a hearing. The order was issued by the Family Court of Nassau County, prompting the mother to challenge it.

A New York guardianship petition under Family Court Act article 6 is a legal action filed in the Family Court to request the appointment of a guardian for a minor child. This petition is typically filed by a parent, relative, or other interested party seeking to obtain legal authority to make decisions regarding the child’s welfare and affairs.

Under Article 6 of the Family Court Act, the court has the authority to appoint a guardian for a child if it is deemed to be in the child’s best interests. Guardianship may be sought for various reasons, including when a parent is unable to care for the child due to incapacity, incarceration, or other circumstances.

Published on: February 19, 2024

Determining the proper jurisdiction in a divorce and child custody dispute where parties have ties t New York and the United Kingdom. William L. v. Therese L. 66 Misc. 3d 1228 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

The doctrine of forum non conveniens, a Latin term meaning “forum not convenient,” allows a court to decline jurisdiction over a case if another forum would be more appropriate for the resolution of the dispute. In New York, this doctrine applies to various legal matters, including divorce and child custody disputes, when issues of jurisdiction and forum selection arise.

In divorce and child custody cases, forum non conveniens may come into play when one party argues that another jurisdiction would be more suitable for resolving the dispute. Factors considered by the court include the parties’ residences, the child’s welfare, the location of evidence, financial circumstances, and court familiarity with the case.

For example, if a couple has ties to both New York and another country, and the child primarily resides outside New York, a court may find that the other jurisdiction is more appropriate for adjudicating custody matters. Similarly, if evidence and witnesses are predominantly located in another jurisdiction, it may be more convenient for the case to be heard there.

Published on: February 14, 2024

Where a couple adopted children, the court determined that they would share legal custody. N.K. v. S.R., 2023 N.Y. Slip Op. 23344 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

In custody cases, regardless of the parents’ sexual orientation or the children’s adoption status, the paramount concern remains the well-being and best interests of the children involved. While this particular case involves a same-sex couple and adopted children, the fundamental principles guiding the court’s decision-making process are universal. The court must carefully consider various factors, including the children’s emotional and physical health, their relationship with each parent, stability, and the ability of each parent to provide a nurturing and supportive environment. Ultimately, the goal is to ensure that the children are placed in a living arrangement that promotes their overall welfare and development.

Background Facts

S.R. and N.K. married in 2007. The children, SC1 and SC2, are S.R.’s cousin’s biological children, placed in their care as kinship foster parents. They began fostering SC1 in 2009 and SC2 in 2010 in Binghamton, New York.

Published on: February 12, 2024

New York Family Court found insufficient evidence to extend the final order of protection. C.K. v. J.D., 2024 N.Y. Slip Op. 50029 (N.Y. Fam. Ct. 2024)

by Stephen Bilkis

In New York, obtaining a family court order of protection involves specific requirements for both temporary and final orders. For a temporary order, known as an ex parte order, the petitioner must demonstrate to the court that they have been subjected to or are in immediate danger of domestic violence or harassment by the respondent. This can be achieved through sworn testimony or evidence provided to the court.

Once a temporary order is granted, a final order of protection can be sought through a formal court hearing or by mutual agreement of the parties. To obtain a final order, the petitioner must present evidence of the alleged family offense, such as testimony, documents, or other supporting evidence. The respondent has the opportunity to present a defense and contest the allegations during the hearing.

For both temporary and final orders, the court will consider factors such as the nature of the relationship between the parties, any history of violence or harassment, and the current circumstances surrounding the request for protection. The court will issue the order if it determines that there is a sufficient basis to warrant protection for the petitioner.

Published on: February 7, 2024

Court considered the right of the ACS supervise a non-offending parent. In re Danna T., 2024 N.Y. Slip Op. 24008 (N.Y. Fam. Ct. 2024)

by Stephen Bilkis

In New York, the Administration for Children’s Services (ACS) plays a crucial role in safeguarding children who are victims of abuse or neglect by their parents or caregivers. ACS is tasked with investigating reports of child maltreatment and ensuring the safety and well-being of vulnerable children. When allegations of abuse or neglect arise, ACS conducts thorough investigations to assess the risk to the child and determine the appropriate course of action.

ACS works closely with law enforcement, medical professionals, and other relevant agencies to gather evidence and make informed decisions regarding child welfare. If ACS determines that a child is in imminent danger, they have the authority to intervene and remove the child from the home to ensure their safety. In cases where removal is necessary, ACS provides temporary placement for the child and works to establish a plan for their long-term care.

Furthermore, ACS offers various supportive services to families in need, including counseling, parenting classes, and substance abuse treatment, with the goal of reunifying families whenever possible. However, ACS prioritizes the safety and well-being of the child above all else, and if reunification is not feasible or safe, they pursue alternative permanent placement options, such as adoption or guardianship. Through its efforts, ACS strives to protect and advocate for the rights of children who have experienced abuse or neglect.