New York Family Law Blog

Published on: January 4, 2024

Whether a petition for plenary guardianship should be granted. Matter of Eli T. 2018 NY Slip Op 28389

by Stephen Bilkis

Guardianship in New York involves a legal arrangement where someone, known as a guardian, is appointed to make decisions on behalf of an individual who is unable to make decisions independently. This often arises in situations where the person, called the ward, faces challenges due to age, disability, or other incapacitating factors.

For adults, guardianship typically comes into play when an individual is deemed incapable of managing their personal and financial affairs. This could be due to intellectual disabilities, mental health issues, or other conditions that hinder their decision-making abilities.

In contrast, guardianship for children involves a legal relationship where an adult is appointed to care for and make decisions for a minor. This might happen when parents are unable to fulfill their parental responsibilities, either due to incapacity, death, or other circumstances.

Published on: December 26, 2023

Family Court considered a custody case involving multiple states. Chester HH. v. Angela GG., 2023 N.Y. Slip Op. 23204 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

In custody issues involving multiple states, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdictional determinations. The UCCJEA establishes guidelines for determining which state’s court has jurisdiction over the custody matter. Typically, the “home state” where the child has lived for a significant period holds jurisdiction. If a court determines that another state has jurisdiction, it may defer to that state’s authority. The goal is to promote consistency and avoid conflicting custody orders between states, ensuring the child’s best interests are prioritized across jurisdictions.

Background Facts

Chester HH. and Angela GG. share joint legal custody of their child, with Angela having sole physical custody in Michigan. However, a significant event occurred when Chester, residing in New York, brought the child to his home for a visit. During this time, troubling allegations emerged, suggesting neglect and abuse while the child was under Angela’s care in Michigan.

Published on: December 20, 2023

In re Aisha R., 2023 N.Y. Slip Op. 23174 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

Neglect, as defined under Article 10 of the Family Court Act, refers to a failure to provide proper care for a child. This can include a lack of food, clothing, shelter, medical care, education, or supervision necessary for the child’s well-being. Neglect can also involve exposing a child to conditions or environments that may harm their physical, mental, or emotional health.

In determining neglect, the court considers whether a parent or guardian’s actions or omissions have caused, or are likely to cause, harm to the child’s physical, mental, or emotional health. It’s not just about intentional harm but also about a failure to provide necessary care or protection.

The standard for neglect is based on what a reasonable and prudent parent would do in similar circumstances. It’s not about perfection, but rather about meeting the basic needs of the child and ensuring their safety and well-being.

Published on: December 18, 2023

Court considered whether a father abused his children by using corporal punishment. In re Loudemya SJ, 2023 N.Y. Slip Op. 51040 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

Article 10 of the Family Court Act in New York addresses issues related to child abuse and neglect, including the use of corporal punishment. Corporal punishment, defined as the use of physical force against a child for the purpose of discipline, is a contentious issue.

Under Article 10, the definition of neglect includes instances where a child’s physical, mental, or emotional well-being is impaired or at risk due to the failure of a parent or caretaker to exercise proper care and supervision. This broad definition encompasses various forms of maltreatment, including corporal punishment that exceeds what is considered reasonable discipline.

While the law recognizes a parent’s right to discipline their child, it also imposes limitations to prevent abuse. Excessive or severe corporal punishment that results in physical harm or emotional trauma may constitute neglect under Article 10. The threshold for determining what constitutes excessive punishment is based on the minimum degree of care expected from a parent or caregiver.

Published on: December 13, 2023

Court decided that it was in the best interests of the child to terminate parental rights. In re of a Proceeding Under Article 10 of the Family Court Act Y. SS., 2023 N.Y. Slip Op. 50968 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

Terminating parental rights in New York means legally severing the relationship between a parent and their child. This action is taken when it’s determined that the parent is unable or unwilling to provide a safe and stable environment for the child. Once parental rights are terminated, the parent no longer has any legal rights or responsibilities regarding the child, including custody, visitation, or decision-making. The child is then placed under the care and supervision of a government agency, typically with the goal of finding a permanent and stable home through adoption. Terminating parental rights is a significant legal step taken to ensure the well-being and safety of the child when it’s deemed that maintaining the parent-child relationship is not in the child’s best interests.

Background Facts

Y. SS. was removed from her mother’s custody in September 2020 after the Department filed a petition alleging abuse and neglect. The specific reasons for removal were related to concerns about the mother’s ability to provide a safe and stable environment for the child. The court intervened to ensure the child’s welfare and initiated legal proceedings to address the situation. Both the Department and the mother were represented in subsequent hearings, where evidence was presented and arguments were made regarding the child’s best interests. The involvement of attorneys and social workers underscored the seriousness of the situation and the need for a thorough legal process to determine the appropriate course of action for the child’s future.

Published on: December 11, 2023

Court considered whether lack of contact by biological father was a basis to grant adoption of children without his consent. M.S. v. Michael UU. (In re Wyatt JJ.), 2023 N.Y. Slip Op. 50859 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

According to DRL §111, consent from a parent is typically required for adoption in New York State. This applies to both parents unless specific circumstances exist. Consent is deemed necessary unless a parent’s rights have been legally terminated or if the parent has abandoned the child. In cases where a parent has relinquished their parental rights or has failed to maintain contact or support for the child, their consent may not be required for adoption. However, if both parents are alive and capable of providing consent, they must generally agree to the adoption for it to proceed legally. This statute aims to uphold the rights of parents while also ensuring that the best interests of the child are considered in adoption proceedings. It establishes a framework for determining when parental consent is necessary, thereby facilitating the adoption process while safeguarding parental rights and the welfare of the child.

Background Facts

In the adoption proceeding concerning Serenity JJ. and Wyatt JJ., the petitioner, referred to as Petitioner or Mother, testified regarding her relationship with the children and their biological father, Michael UU. The mother explained that she and Michael UU. were divorced in 2019 and that she subsequently married R.S. During the relevant six-month period from August 17, 2021, to February 17, 2022, Petitioner Mother stated that Michael UU. had no contact with the children, did not request visitation, and made no effort to communicate with them. She further testified that there were no legal restrictions preventing Michael UU. from contacting her or the children, nor did she block any attempts at communication.

Published on: December 6, 2023

DSS failed to support a claim of neglect. In re Jeremyah P., 2023 N.Y. Slip Op. 50765 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

In the context of the Family Court Act Article 10, neglect refers to the failure of a caregiver, typically a parent or guardian, to provide adequate care, supervision, or support for a child’s well-being. This includes the failure to provide essential needs such as food, clothing, shelter, medical care, education, and emotional support. Neglect can manifest in various ways, ranging from physical absence or abandonment to emotional neglect or failure to protect a child from harm or danger. The goal of Article 10 proceedings is to ensure the safety and welfare of children by addressing situations where neglect or maltreatment has occurred or is suspected.

In a recent legal case involving allegations of neglect against two respondents, the court was tasked with determining whether the child in question was indeed neglected as defined by Family Court Act Article 10. The case, which proceeded to a fact-finding hearing, involved the Orange County Department of Social Services (DSS) as the petitioner and two respondents, referred to as J.R. and M.O.

Background Facts

Published on: December 4, 2023

Court considered whether a custody modification was warranted. A.S. v. L.C., 2023 N.Y. Slip Op. 50042 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

A Lincoln hearing, named after a court case, is a process where the judge interviews a child privately to understand their preferences regarding custody or visitation. The purpose is to consider the child’s viewpoint without parental influence when making decisions about their welfare. The hearing allows the judge to gather information directly from the child to help determine what arrangement would be in their best interests. It ensures the child’s voice is heard in court proceedings involving custody and visitation disputes.

In A.S. v. L.C., 2023 N.Y. Slip Op. 50042 (N.Y. Fam. Ct. 2023), a contentious child custody case, testimony elicited during a Lincoln hearing was used to help the court determine the custody arrangement. The initial custody arrangement granted the mother primary custody of the child, with the father having visitation rights.

Background facts

Published on: November 15, 2023

Father was unable to rebut presumption that he willful violated a child support order. Movsovich v. Wood, 178 A.D.3d 1441 (N.Y. App. Div. 2019).

by Stephen Bilkis

The case of Movsovich v. Wood, a Family Court Act article 4 proceeding, addresses issues related to child support enforcement. The respondent appeals a decision that addressed the willful violation of a child support order and its consequences.

In New York, prima facie evidence of a willful violation of a child support order arises when there is a presumption that a respondent has sufficient means to support their minor children, and there is evidence demonstrating a failure to pay support as ordered. This presumption is codified n Family Court Act § 454(3)(a). When the party receiving child support presents evidence that the respondent has not complied with the court-ordered support obligations, it creates a prima facie case of willful violation.

Once the custodial parent establishes this prima facie case, the burden shifts to the noncustodial parent (the respondent) to provide credible and competent evidence demonstrating an inability to make the required support payments. The noncustodial parent must present evidence showing reasonable efforts to obtain gainful employment or any other circumstances that might hinder their ability to meet the support obligation.

Published on: November 13, 2023

Court decided that limitation visitation for incarcerated parent was reasonable. Smith v. Smith, 92 A.D.3d 791 (2012)

by Stephen Bilkis

What happens to parental rights when a parent is incarcerated in New York state. Generally, parents retain their parental rights, including the right to visitation. However, the caveat, is that every decision that a New York court makes with respects to children is guided by what is deemed to be in the best interests of the child. In New York, the principle of “best interests of the child” serves as a foundational guideline for courts in determining custody and visitation arrangements.

In New York, this standard considers various factors, including the child’s physical and emotional health, the stability of each parent’s living environment, and the ability of parents to meet the child’s needs. Ultimately, the court aims to make decisions that promote the child’s

When applied to incarcerated parents, the “best interests of the child” standard takes into account a range of factors unique to the circumstances of parental incarceration. Courts typically consider the length of the sentence, the nature of the offense, the potential impact on the child’s emotional well-being, and the practical challenges associated with maintaining a relationship. While parental incarceration alone does not automatically preclude visitation, the court assesses whether such visitation might be detrimental to the child and may impose conditions such as supervised visitation or limitations based on logistical constraints. The overarching goal remains to strike a balance between maintaining the child’s connection with the incarcerated parent and ensuring their overall welfare and stability.