New York Family Law Blog

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.

Published on: May 1, 2024

Extending kinship guardianship assistance. In re Jaquan L., 2020 N.Y. Slip Op. 213 (N.Y. App. Div. 2020)

by Stephen Bilkis

Kinship guardianship assistance payments in New York, often referred to as KinGap, are financial subsidies provided to relative caregivers who assume legal guardianship of children in their care. These payments are intended to support the guardians in meeting the needs of the children. Some examples of what the payments can be used for included:

Housing expenses such as rent or mortgage payments, utilities, property taxes, and other housing-related costs to ensure stable and safe living conditions for the children.
Food and nutrition such as purchasing groceries, meals, and other food items to meet the nutritional needs of the children.

Published on: April 29, 2024

V.A. v. L.S. 2023 N.Y. Slip Op. 51477 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

V.A. v. L.S. 2023 N.Y. Slip Op. 51477 (N.Y. Fam. Ct. 2023) involved an application to extend an order of protection. Extending an order of protection in New York involves a legal process that aims to maintain the safety and well-being of individuals who have been subjected to domestic violence or other forms of harm. In the state of New York, orders of protection can be extended upon motion for a reasonable period of time upon a showing of good cause, as outlined in Family Court Act §842.

Good cause for extending an order of protection can be demonstrated through various factors, including the nature of the relationship between the parties, any instances of domestic violence or violations of the existing order of protection, and the safety concerns for the petitioner and any children involved. This may involve providing evidence of past incidents of abuse, threats, or harassment, as well as the potential for future harm if the order is not extended.

The process typically begins with the filing of a motion in the appropriate court, such as the Family Court where the original order of protection was issued. The petitioner, often with the assistance of legal counsel, presents arguments and evidence supporting the need for the extension. This may include witness testimony, police reports, medical records, or other documentation relevant to the case.

Published on: April 24, 2024

Whether by naming drug using friend as guardian of her child amounted to neglect on the part of the mother. Ulster Cnty. Dep’t of Soc. Servs. v. Ashley Y. (In re Annaleigh X.), 205 A.D.3d 1109 (N.Y. App. Div. 2022)

by Stephen Bilkis

Ulster Cnty. Dep’t of Soc. Servs. v. Ashley Y. (In re Annaleigh X.), 205 A.D.3d 1109 (N.Y. App. Div. 2022) involves allegations of neglect against a mother in Ulster County, New York. The case raises important issues regarding parental responsibility and the duty to provide proper supervision and guardianship to children.

In New York, neglect of a child is defined as a failure by a parent or caretaker to provide proper supervision or guardianship, resulting in the impairment or imminent danger of impairment to the child’s physical, mental, or emotional well-being. This failure to exercise a minimum degree of care encompasses situations where the child’s condition has been or is in imminent danger of being impaired due to the caregiver’s actions or inaction.

The key element in determining neglect is whether a reasonable and prudent parent would have acted differently under similar circumstances. Neglect can occur when a parent or caretaker knew or should have known of circumstances that required action to prevent harm to the child but failed to take appropriate measures.

Published on: April 22, 2024

Appellate Division considered whether a stipulation to a separation agreement related to child support could be enforced by the Family Court. Barra v. Barra 214 A.D.3d 1224 (N.Y. App. Div. 2023)

by Stephen Bilkis

In Barra v. Barra, 214 A.D.3d 1224 (N.Y. App. Div. 2023), the court was asked to settle a child support payment dispute. Part of the evidence submitted was the couple’s divorce decree.

Divorce cases and child support proceedings are inherently interconnected, with the former often laying the groundwork for the latter. In many instances, child support arrangements are established as part of the divorce settlement, outlining the financial obligations of each parent towards their children. Divorce decrees or settlement agreements typically specify the amount of child support to be paid, the frequency of payments, and any additional financial responsibilities related to the children’s upbringing. By establishing clear terms during the divorce process, the court sets the stage for subsequent child support proceedings, providing a framework for resolution and enforcement.

Moreover, divorce cases create legal precedents that guide child support matters in the future. Courts often refer to the terms outlined in the divorce decree when adjudicating disputes related to child support. This ensures consistency and adherence to the original agreement, promoting fairness and stability in child support arrangements.

Published on: April 17, 2024

Court considered whether a child’s father should be awarded guardianship following the death of her mother. Nicole L. v. David M., 195 A.D.3d 1058 (N.Y. App. Div. 2021)

by Stephen Bilkis

Guardianship of a child in New York involves the legal authority granted to an individual or entity to make important decisions regarding the care, welfare, and upbringing of a child who is not their biological or adoptive child. This authority is typically granted by a court and is necessary when the child’s parents are unable or unwilling to fulfill their parental responsibilities adequately.

A guardian assumes responsibility for the child’s physical, emotional, and financial well-being, including providing food, shelter, medical care, education, and guidance. Guardianship grants the guardian the authority to make decisions on behalf of the child, such as healthcare choices, educational enrollment, and participation in extracurricular activities. The guardian is also responsible for ensuring that the child’s basic needs are met and that they receive appropriate support and supervision.

In Nicole L. v. David M., 195 A.D.3d 1058 (N.Y. App. Div. 2021), a case heard by the Family Court of Columbia County, the court evaluated competing claims for custody and guardianship of a young child following the tragic death of her mother. The case involved multiple parties, including the child’s father, maternal aunt, and the mother’s former live-in boyfriend.