New York Family Law Blog

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.

Published on: April 15, 2024

Can the Family Court order stimulus payments to be included as part of child support? Josefina O. v. Francisco P., 213 A.D.3d 1158 (N.Y. App. Div. 2023)

by Stephen Bilkis

In Josefina O. v. Francisco P., 213 A.D.3d 1158 (N.Y. App. Div. 2023), a case before the Family Court of Montgomery County, the court was asked to settle a dispute that arose between separated parents regarding child support and federal stimulus payments. Stimulus payments, also known as economic impact payments or relief checks, are financial assistance provided by the government to individuals or households during times of economic hardship or crisis. These payments are intended to stimulate economic activity, support struggling individuals, and mitigate the effects of financial downturns. Stimulus payments are typically distributed through direct deposits, paper checks, or prepaid debit cards.

Background Facts

The case involves a mother and father who are separated and have five children together, born between 2007 and 2017. In August 2019, the father consented to an order of support, agreeing to pay the mother a weekly sum for child and spousal support. However, in December 2020, the mother filed a family offense petition against the father, citing harassment and assault. Subsequently, in January 2021, she initiated a divorce action.

Published on: April 10, 2024

Appellate Court considered a guardianship case related to seeking a special immigrant juvenile status. Juan R.E.M. v. Juan R.E. 2017 N.Y. Slip Op. 6977 (N.Y. App. Div. 2017)

by Stephen Bilkis

Juan R.E.M. v. Juan R.E. 2017 N.Y. Slip Op. 6977 (N.Y. App. Div. 2017) revolves around the efforts of a child to obtain special immigrant juvenile status (SIJS) in the United States. SIJS was designed to provide protection to immigrant children who have been abused, abandoned, or neglected by one or both parents. Established under the Immigration and Nationality Act (INA), SIJS aims to safeguard vulnerable minors who have faced hardships in their home countries and are unable to reunify with their parents due to these circumstances. This status offers a pathway for these children to obtain lawful permanent residency in the U.S., ensuring their safety and well-being.

The eligibility criteria for SIJS are specific and stringent, requiring applicants to meet both immigration and state court dependency standards. To qualify, the applicant must be under 21 years old and unmarried, and they must have been declared dependent on a juvenile court due to abuse, abandonment, or neglect by one or both parents. Additionally, the court must determine that it is not in the child’s best interest to be returned to their home country and that they would benefit from remaining in the United States. This dual requirement, involving both immigration and state court proceedings, underscores the complexity of the SIJS process.

One of the key features of SIJS is that it provides a pathway for undocumented immigrant children to obtain legal status in the U.S., even if they entered the country unlawfully or overstayed their visas. This is crucial as it prevents these vulnerable minors from falling through the cracks of the immigration system and facing potential deportation to unsafe environments. By granting them lawful permanent residency, SIJS allows these children to access essential rights and protections, including the ability to work legally, pursue education, and access healthcare services.

Published on: April 8, 2024

Rights of the biological father of a child that was adopted. Jeffrey M. v. Ann B. 2020 N.Y. Slip Op. 20209 (N.Y. Fam. Ct. 2020)

by Stephen Bilkis

In Jeffrey M. v. Ann B., 2020 N.Y. Slip Op. 20209 (N.Y. Fam. Ct. 2020), a case before the Family Court, Respondents Randall B. and Ann B. sought the dismissal of a Visitation Petition filed by Petitioner Jeffrey M. The court’s decision shed light on the complex dynamics of adoption and visitation rights.

In New York, once an adoption is finalized, the biological parents typically relinquish their parental rights over the child. This includes the right to custody, visitation, and decision-making concerning the child’s welfare. However, under certain circumstances, biological parents may retain limited rights, particularly if outlined in a post-placement contact agreement. These agreements may allow for ongoing communication, exchange of photos, and even supervised visitation, depending on the terms agreed upon by all parties involved.

Nevertheless, such agreements are not legally binding in New York unless they are incorporated into the adoption order. Additionally, biological parents may have the option to challenge the adoption on grounds such as fraud, duress, or coercion, although there are limitations and procedural hurdles to overcome, particularly if there has been a significant passage of time since the adoption was finalized.

Published on: April 3, 2024

Court considered whether to change the goal for placement of the child from adoption to guardianship. Rebecca B. v. Michael B. 152 A.D.3d 675 (N.Y. App. Div. 2017)

by Stephen Bilkis

In New York Family Court, a permanency hearing is a legal proceeding designed to determine the long-term plan for children who have been removed from their homes due to abuse, neglect, or other circumstances endangering their well-being. These hearings aim to establish a stable and secure environment for the children involved.

During a permanency hearing, the court reviews the progress and circumstances of the child, the child’s family, and any involved agencies since the child’s placement into foster care. It evaluates various factors, including the child’s safety, well-being, and the efforts made towards family reunification or alternative permanency goals, such as adoption or guardianship.

The hearing allows all parties, including the child’s biological parents, foster parents, legal guardians, and representatives from child welfare agencies, to present evidence, testimony, and recommendations regarding the child’s future placement and care. The court considers the child’s best interests as paramount in making its decision.

Published on: April 1, 2024

Whether a father with a history of domestic violence should be awarded custody. Scott v. Thompson 166 A.D.3d 627 (N.Y. App. Div. 2018)

by Stephen Bilkis

In Scott v. Thompson, 166 A.D.3d 627 (N.Y. App. Div. 2018), the custody dispute included allegations of domestic abuse. In child custody determinations, New York courts always prioritize the best interest of the child. When allegations of domestic violence arise, courts must evaluate their impact on the child’s well-being and safety. Courts examine whether either parent has engaged in acts of domestic violence, particularly in the presence of the child. This assessment is vital in determining the child’s best interests and the appropriate custody arrangement. The safety and welfare of the child take precedence, and any history of violence or abuse can influence the parent’s fitness to provide a nurturing and secure environment.

The frequency, severity, and nature of the domestic violence incidents are weighed, considering the potential risk they pose to the child’s physical and emotional health. Moreover, courts consider the protective measures taken by the victimized parent to safeguard themselves and the child from further harm.

By thoroughly examining the circumstances surrounding the domestic violence allegations, courts aim to ensure the child’s safety and well-being while promoting a stable and nurturing environment. Pursuant to Domestic Relations Law § 240(1)(a), in any action or proceeding concerning custody or parental access where domestic violence is alleged, “the court must consider” the effect of such domestic violence upon the best interests of the child along with all the other relevant factors. Ultimately, the goal is to protect the child from harm and promote their best interests, which may involve awarding custody to the parent who can provide a safe and stable environment free from violence and abuse.

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.