New York Family Law Blog

Published on: October 18, 2023

Father’s visitation reinstated after missing court date. Lemon v. Faison, 150 A.D.3d 1003 (N.Y. App. Div. 2017)

by Stephen Bilkis

New York courts adhere to a comprehensive approach in determining custody and visitation arrangements. The paramount consideration is the best interests of the child, evaluated through a myriad of factors such as parental stability, financial well-being, and the ability to provide a nurturing environment. While the court aims to ensure both parents maintain a meaningful relationship with the child, it prioritizes the child’s safety and well-being. The process often involves fact-finding hearings, and the court may opt for a plenary hearing or demand clear articulation of factors influencing its decision. The overarching goal is to make determinations founded on a thorough assessment of the circumstances, promoting the child’s welfare.

The case of Lemon v. Faison, a 2017 decision by the New York Appellate Division, delves into a family law dispute concerning visitation rights, custody, and an order of protection. It also involved a father attempted to re-establish a connection with his children after being incarcerated.

Re-establishing parental rights, specifically seeking custody or visitation, after being released from prison is a nuanced legal process. Courts generally consider factors such as the nature of the offense, the parent’s behavior post-release, and the best interests of the child. While completing rehabilitation programs and demonstrating a stable environment can bolster a parent’s case, the court’s primary concern is the child’s welfare. The level of involvement granted often depends on the court’s evaluation of the parent’s capacity to provide a safe and nurturing environment, balancing the parent’s rights with the child’s best interests.

Published on: October 16, 2023

Court considered modification of visitation order involving a child with disabilities. In the Matter of Grisanti v. Grisanti, 4 A.D.3d 471 (N.Y. App. Div. 2004)

by Stephen Bilkis

In Grisanti v. Grisanti, the Westchester Family Court was ask by the petitioner, the mother, to change the visitation rules established in a 1996 divorce agreement. The court had to carefully consider this request, especially because one of the children involved has high-functioning autism and learning disabilities. The challenge was finding a balance between what the mom wanted regarding visitation and what would be in the best interest of the child with special needs. The court needed to navigate this complex situation to make a fair decision for everyone involved.

In New York, the standard for modifying visitation arrangements is centered on the best interests of the child involved. When a parent seeks a change in visitation rights, they bear the responsibility of demonstrating that the proposed modification is in the child’s best interests. The court employs a comprehensive evaluation, considering various factors to determine the child’s well-being.

The paramount consideration is the child’s physical and emotional health and safety. The court assesses the existing relationship between the child and each parent, the ability of the parents to provide a stable and nurturing environment, and any history of domestic violence or substance abuse. Additionally, the court takes into account the child’s preferences, depending on their age and maturity.

Published on: October 11, 2023

Mother denied visitation where the child was sodomized while under her care. In the Matter of Panetta v. Ruddy, 795 N.Y.S.2d 674 (N.Y. App. Div. 2005)

by Stephen Bilkis

In the Matter of Panetta v. Ruddy, the court considered whether to grant the mother visitation of her child. In New York, the standard for a court to deny visitation is high, as it involves a drastic measure that infringes on a noncustodial parent’s rights. Denial of visitation rights should only occur when substantial evidence demonstrates that allowing visitation would be detrimental to the child’s welfare. This stringent standard is in line with the recognition that noncustodial parents are entitled to reasonable visitation rights, emphasizing the importance of maintaining meaningful relationships between parents and their children. The court considers the best interests of the child as paramount, evaluating factors such as the child’s safety, well-being, and overall welfare. Generally, visitation determinations are made after a comprehensive evidentiary hearing to ensure a thorough examination of the circumstances. However, if the court possesses sufficient relevant information to make an informed decision regarding the child’s best interest, a full hearing may not be necessary. The court’s determination hinges on its assessment of witness credibility, the parties’ character, temperament, and sincerity, and will only be disturbed on appeal if it lacks a sound and substantial basis in the record.

Background

In this case, the child’s older half-brother committing sodomy on him while under the mother’s care. As a result, the half-brother faced adjudication as a juvenile delinquent. The Family Court concluded that the child encountered a “polluted environment” during visits with the mother. The Family Court awarded sole custody of the child to the father and suspended the mother’s visitation visitation rights.

Published on: October 9, 2023

Appellate Division upheld supervised therapeutic visitation with father. Thompson v. Yu-Thompson, 837 N.Y.S.2d 313 (N.Y. App. Div. 2007)

by Stephen Bilkis

The case of Thompson v. Yu-Thompson (837 N.Y.S.2d 313, 2007) involves the concept of therapeutic visitation. Supervised therapeutic visitation in New York involves a structured setting where a mental health professional oversees and facilitates visits between a parent and child. This type of visitation is typically ordered by the court when there are concerns about the safety or well-being of the child during unsupervised visits. The therapeutic component implies that the visits serve a therapeutic purpose, addressing specific issues such as parent-child bonding, communication, or emotional well-being. This arrangement ensures that the child’s welfare is prioritized while allowing the parent an opportunity to maintain or rebuild a relationship under professional guidance. The decision to order supervised therapeutic visitation is based on the unique circumstances of each case.

Background

Upon petition by the father, the Family Court of Westchester County allowed him to have supervised therapeutic visits with the child. The mother, dissatisfied with the court’s order, appeals from a decision entered on January 11, 2006.

Published on: October 4, 2023

Court considered whether the father’s visitation should be suspended. Pettiford-Brown v. Brown, 42 A.D.3d 541 (2007)

by Stephen Bilkis

In Pettiford-Brown v. Brown (42 A.D.3d 541, 2007) the father’s visitation rights were suspended by the Family Court of Westchester County. This means that the court temporarily stopped or restricted his right to spend time with their child. This led him to appeal to the Appellate Division.

Suspending a parent’s visitation is a serious step for a court, typically requiring substantial evidence that continued visitation would harm the child. In New York, as in many jurisdictions, the court considers the best interests of the child paramount. A court may suspend visitation if there’s convincing proof that the child’s well-being is at risk during visits with a particular parent. For example, courts may suspend visitation rights in situations where a parent poses a risk to the child’s safety, such as substance abuse issues, domestic violence, or neglect. If a parent’s behavior endangers the child’s well-being or violates court orders, like interference with the other parent’s rights, it can lead to visitation suspension. Additionally, serious mental health concerns, criminal activity, or a parent’s refusal to follow court-mandated parenting plans might prompt the court to intervene. The primary focus is always the child’s best interests, and suspension aims to provide a safe environment until concerns are adequately addressed.

Background

Published on: October 2, 2023

Family Court refused to modify custody where father failed to present evidence to support the change.Matter of Madden v. Cavanaugh, 307 AD2d 266 (N.Y. App. Div., 2003)

by Stephen Bilkis

Child custody battles can be emotionally and legally challenging. In this Matter of Madden v. Cavanaugh, 307 AD2d 266 (N.Y. App. Div., 2003), the issue before the Family Court order in Westchester County was related to a custody modification.

Modifying child custody arrangements is a significant legal step and requires adherence to specific guidelines to ensure the best interests of the child involved. In New York, as in many jurisdictions, courts prioritize the welfare of the child above all else. If a parent wishes to modify an existing custody order, they typically need to demonstrate a substantial change in circumstances since the initial order was established. This could involve changes in the child’s living situation, a parent’s employment, health conditions, or other factors impacting the child’s well-being.

The requesting parent must provide compelling evidence supporting the modification and show how it aligns with the child’s best interests, focusing on their physical, emotional, and educational needs. Courts emphasize maintaining stability and consistency in a child’s life, so any proposed modification should enhance the child’s life rather than disrupt it. Additionally, the modification should encourage the child to maintain a strong relationship with both parents, assuming both parents are fit and suitable caregivers. In some cases, the court may appoint a Guardian Ad Litem or an attorney for the child to represent the child’s interests during the modification proceedings. Understanding these criteria is essential when seeking a modification of child custody arrangements. Consulting with a knowledgeable New York family law attorney can provide valuable insights and legal expertise, increasing the likelihood of a successful custody modification based on the child’s best interests.

Published on: September 27, 2023

Court determined that father’s parental alienation actions required a modification in the custody order. Grabowski v. Smith, 123 N.Y.S.3d 313 (N.Y. App. Div. 2020)

by Stephen Bilkis

The case of Grabowski v. Smith revolves around a custody and visitation dispute between petitioner mother Jacquelyn M. Grabowski and respondent father Jay Craig Smith, Jr. The Attorney for the Child (AFC), Kimberly M. Seager, also plays a pivotal role in the legal proceedings.

In custody or visitation proceedings, an AFC serves as the legal representative for the child involved. Unlike attorneys representing parents, the AFC’s sole allegiance is to the child’s best interests. This involves conducting an independent assessment of the child’s circumstances, preferences, and overall well-being. The AFC becomes the child’s voice in court, expressing their wishes, concerns, and advocating for outcomes aligned with their welfare. This representation is especially vital when the child’s interests may not coincide with those of the parents. The AFC’s responsibilities encompass legal counsel, courtroom representation, and ensuring the child’s views are considered in decisions. Ethical considerations guide the AFC, who must prioritize the child’s welfare, even if their preferences differ from what the AFC believes is in their best interests. Through these responsibilities, the AFC plays a pivotal role in safeguarding the child’s rights and ensuring their well-being remains paramount throughout the legal proceedings.

Background

Published on: September 25, 2023

Father failed to show changed circumstances such that a custody modification would be appropriate. James v. Tammy, 45 A.D.3d 1358 (N.Y. App. Div. 2007)

by Stephen Bilkis

James v Tammy involves one parent petitioning the court for a change in the child custody arrangement due to a change in circumstances. In New York, a change of circumstances, as a prerequisite for custody modification, necessitates a substantial and material shift affecting the child’s well-being. Courts scrutinize alterations in factors like parental fitness, living conditions, or the child’s best interests. Mere routine adjustments may not suffice; the change must be of such significance that modifying the existing custody arrangement becomes imperative to safeguard the child’s welfare. This stringent standard ensures that custody modifications align with the paramount consideration of the child’s stability and best interests.

Background

James v. Tammy revolves around a post-divorce custody dispute. The custody arrangement was that Tammy, the mother, had primary custody for the child and James, the father, had visitation. In addition, Tammy relied on James for childcare, so James got to spend time with thei child in addition to visitation. However, when the mother moved, she no longer relied on James for childcare. Based on Tammy’s moving and no longer relying on him for childcare, James sought a modification of the existing custody arrangement, asserting a substantial change in circumstances. The Family Court denied James’s petition for a change in custody. James appealed.

Published on: September 20, 2023

Father established a pattern of the mother violating the prior custody order. Dickes v. Johnston, 182 N.Y.S.3d 470 (N.Y. App. Div. 2023)

by Stephen Bilkis

The case of Dickes v. Johnston, decided in 2023, revolves around a custody dispute between the respondent-petitioner mother and petitioner-respondent father. The Family Court, in response to the father’s supplemental petition, modified the existing custody order to increase his parenting time with the child.

In New York, modifying a custody arrangement requires proof of a substantial change in circumstances affecting the child’s best interests. Courts prioritize stability and consider factors like parental fitness, cooperation, and adherence to existing orders. The petitioner must show the change warrants a review in the child’s best interests. The court independently assesses the record, ensuring any modification aligns with the child’s welfare and is not punitive. This standard emphasizes the need for a significant shift in circumstances to justify altering established custody arrangements.

Note that n this case, the child is represented by an AFC- Attorney for a the Child. An Attorney for the Child (AFC) is an attorney appointed by the court to represent the child’s legal interests in custody and visitation cases. The AFC serves as the child’s advocate, offering an independent voice to express the child’s wishes and preferences. This role is crucial in situations where the child’s interests might conflict with those of the parents or when there are complex issues involved. The AFC investigates the case, interviews the child, and presents the child’s viewpoint in court, helping ensure that the child’s well-being is a central consideration in legal proceedings.

Published on: September 18, 2023

Court declined to modify custody arrangement. Alanna v. Duncan, 204 A.D.2d 409 (N.Y. App. Div. 1994)

by Stephen Bilkis

The case of Alanna v. Duncan, upon divorcing, the couple agreed upon custody. However, the mother changed her mind and sought to modify the custody arrangement.

In New York, courts may entertain requests to modify custody agreements when there is a substantial change in circumstances that affects the well-being of the child. This could encompass alterations in a parent’s living situation, health, or financial stability. Another factor that might prompt a modification is a parent’s plan to relocate a considerable distance, with the court evaluating how such a move may impact the child’s relationship with both parents and overall stability. The child’s expressed preference, depending on their age and maturity, may also be considered, with the court ultimately prioritizing their best interests. Consistent violations of the existing custody order by one parent or concerns about parental fitness, such as substance abuse or neglect, can lead the court to reevaluate the custody arrangement. In all cases, the paramount consideration is the well-being of the child. Parents seeking modification should be prepared to demonstrate a significant change in circumstances, and the court may encourage negotiation or mediation to reach a new agreement that aligns with the child’s best interests. Understanding these factors is crucial for parents navigating the complexities of family law in New York.

Background