New York Family Law Blog

Published on: November 28, 2022

Agencies must make reasonable efforts to reunify parents with their children. In re Jose F., 70 Misc. 3d 1211, 136 N.Y.S.3d 875 (N.Y. Cnty. Ct. 2020)

by Stephen Bilkis

When parents have intellectual or cognitive delays and mental health problems, parenting can be even more challenging than it generally is. It is not unusual for agency involvement and for the children to be removed. However, the goal is still for biological parents to have a role in the lives of their children as long as it is in the best interests of the children. Specific accommodations must be made in order to give the biological parents the opportunity to successfully parent their children. In the case of In re Jose F., the Family Court, Kings County was asked to decide on a permanency plan for two children whose parents had cognitive deficiencies.

Background

Jose, who was 6 weeks, was brought to the hospital. He was significantly underweight and malnourished. Because of the condition of the child and the parents were both mentally delayed the hospital was concerned for the well-being of the child. In fact, they were concerned that the child would die if his parents continued to care for him as they were not aware as to how to care for a child. In addition, the mother was alleged to have bipolar disorder and was not taking her medication. Jose was removed from their care. A second child was born a year later. By that time the parents had made sufficient progress that such that they were permitted to have limited unsupervised time during their agency visits with Jose. Still, a new petition for neglect was filed. Both children were remanded to ACS and both remain in foster care. A permanency hearing was scheduled pursuant to article 10-A of the Family Court Act.

Published on: November 23, 2022

Is establishing paternity in the best interests of a child who had been living with a foster family? Wilson D. v. Anne B., 2021 N.Y. Slip Op. 51144 (N.Y. Fam. Ct. 2021)

by Stephen Bilkis

The long-standing policy in New York has been that parents have the right to have a relationship with their children and that it is generally in the best interests of the child for the courts to give parents and children the opportunity to foster a positive relationship. However, there are circumstances where the court finds that it would be in the best interests of the child to not have a relationship with a parent. In Wilson D. v. Anne B., the court was asked to decide if it would be in the best interests of the child to establish paternity where a child had been living in foster care and a bond had developed between the child and the foster parents.

Background

While incarcerated, the putative father of the child filed a petition for custody. Because paternity had not been established, the court held his petition in abeyance pending the court of a paternity test. Meanwhile the child has been placed in foster care and the foster parents developed a close bond with the child.

Published on: November 21, 2022

Court was asked to intervene when the mother and grandmother limited father’s access to child. Marvin F. v. Jaran H., 73 Misc. 3d 1222, 155 N.Y.S.3d 305 (N.Y. Cnty. Ct. 2021)

by Stephen Bilkis

In this case, the court was asked to intervene when the child’s maternal grandmother appeared to influence the amount of parental access the mother gave the father.

Background

The mother and father were not married when they had a child together. The father was very involved in the child’s life during the first few months of the child’s life. He would see the child three or four times a week in the morning prior to going to work, in the evenings and on the weekends. The mother showed that she was committed to helping ensure that the father was involved and understood how to care for the child. Things changed when the mother’s mother moved in with her to help care of the child. The grandmother became the child’s paid babysitter. The father’s access to the child became increasing limited.

Published on: November 16, 2022

Grandmother seeks guardianship over her two grandsons. Matter of Chariss C. v Jose G. 2021 NY Slip Op 50757(U)

by Stephen Bilkis

Custody cases are not always between parents. A substantial number of cases heard by Family Court in New York involve other relatives, including grandparents. In the Matter of Chariss C. v Jose G., the court was asked to decide whether to grant the petitioning grandmother guardianship over her two grandchildren or grant the children’s mother sole custody and guardianship.

Background

While residing at the petitioner grandmother’s house, the mother, Respondent Courtney C. gave birth to two Children. The children were born in 2010 and 2013. The father, Respondent Jose G., was rarely involved in the lives of the children and did not support them. The grandmother and her husband primarily financially provided for the children and provided for their educational needs as well as food and housing.

Published on: November 14, 2022

Court ordered paternity test over the objections of the presumed legal father. Joseph S. v. Crystal B., 73 Misc. 3d 1201, 152 N.Y.S.3d 288 (N.Y. Cnty. Ct. 2021)

by Stephen Bilkis

In New York there is a marital presumption of paternity. This means that if a child is born to a married couple, there is a presumption that the husband is the father of the child. The husband is the legal father of the child, even if he is not the biological father of the child. The presumed father can prevent another person from establishing paternity. However, under certain circumstances the court will find that it would be in the best interests of the child for a paternity to be administered so that they will know who their biological father is. In Joseph S. v. Crystal B., the court had to decide whether to allow a paternity test over the objections of the presumed father.

Background

In January 2017, Jocelyn, born in 2007, and her seven siblings were remanded to the care and custody of the Administration for Children’s Services (ACS) in a neglect and abuse proceeding. They were placed in kinship foster care due to allegations of inadequate guardianship and lack of food, clothing and shelter. Their kinship foster parents were the adult children of the respondent.

Published on: November 9, 2022

Parent who attended to the educational, medical, and emotional needs of the child awarded sole custody. Katie S. v. Christopher K., 2021 N.Y. Slip Op. 51145 (N.Y. Fam. Ct. 2021)

by Stephen Bilkis

When a New York court issues a custody order that is not deemed a temporary custody order, the order is considered final. The court wants children to have stability. The court, however, will modify a custody order if the situation warrants. For example, if a child is over 12 years old and wants to live with the other parent, that might warrant a modification. If a parent becomes abusive or develops a substance abuse issue, the court would view that as a reason to modify the custody arrangement. Another grounds for modifying custody would be one parent interfering with the other parent’s access to the child. There must be a change in circumstances such that modifying the custody order would be in the best interests of the child.

In Katie S. v. Christopher K., the New York Family Court was asked to determine whether there were changed circumstances such that a change in custody was warranted.

Background

Published on: November 7, 2022

Court determined that it was in the best interests of the children to remain in New York and not move with their father to Massachusetts. Matter of Daniel W v Lauren S 2021 NY Slip Op 51146(U)

by Stephen Bilkis

Generally, custody orders prohibit a parent from relocating with the children without the consent of the other parent, even if the parent is the custodial parent. When a parent wants to relocate with the children, the stage is often set for a custody battle. In determining this issue, as always, the court will do what is in the best interests of the child.

In Matter of Daniel W v Lauren S the court was asked to determine whether to allow the father to relocate with the children to their hometown despite opposition from the mother. As a result, each party sought sole custody of the children and primary physical residency.

Background

Published on: November 2, 2022

Court denied a parent’s request that the AFC be removed. Proceeding Under Article 6 of the Family Court Act D.D. v. R.M., 2021 N.Y. Slip Op. 50796 (N.Y. Fam. Ct. 2021)

by Stephen Bilkis

In New York, the purpose of the Attorneys for Children Program (AFC) is to provide representation to minors in court proceedings such as proceedings related to custody and visitation. The AFC is not to show bias for or against any parent. They are to advocate for the child and make decisions based on what is in the child’s best interests. In Proceeding Under Article 6 of the Family Court Act D.D. v. R.M., the court was asked to decide if there should be a custody modification giving sole custody of the children to the father due to the mother violating the custody order. During the proceeding the mother accused the AFC of being inappropriately aligned with the father and filed a motion to have the AFC removed.

Background

The father is entitled to weekly parenting time every Tuesday and Thursday from 2:45 PM to 6:30 PM, and every other Friday to Sunday from 6AM to 6PM, and that he has not seen or Face-Timed with the Children since March 16, 2021. He alleges that although he has arrived at the mother’s home to pick up the Children for all his Court-ordered parenting time, the mother has refused to bring the Children out of the house, and she claims that the Children are afraid of the father and that they do not want to see the father.

Published on: October 31, 2022

Court denied custody modification due to lack of changed circumstances. S.J. v. K.A., 2021 N.Y. Slip Op. 50215 (N.Y. Fam. Ct. 2021)

by Stephen Bilkis

In New York, the court will not change a custody order unless there has been changed circumstances. In other words, the court does want parents to file petitions to modify custody every few months. Not only would this be a burden on the courts, ever changing custody arrangements would lead to instability in the children’s lives. Of course, if there was a finding of child abuse, the court would order a modification to the custody order. In addition, if the custodial parent intentionally makes it difficult for the noncustodial parent to take advantage of their parenting time, the court would consider a modification to the custody order.

Examples of changed circumstances include the child is over 12 years old and requests a change; one parent has abandoned or neglected the child, a parent is incarcerated, or one of the parents suffered from substance abuse.

In S.J. v. K.A, the court was asked to determine whether there were changed circumstances such that a modification of the custody order was warranted.

Published on: October 26, 2022

Court modified custody order from father having full custody to mother having full custody. S.N. v. J.A., 2021 N.Y. Slip Op. 50304 (N.Y. Fam. Ct. 2021)

by Stephen Bilkis

In New York, a child custody order can only be changed under specific conditions, including if there has been changed circumstances such that it would be in the best interests of the child that the court modify the child custody order. In this case, the Family Court was asked to consider whether a modification of the custody was appropriate given the circumstances.

Background

The mother and father were parents a child. A March 2017 order granted the father sole custody of the child. The mother now seeks a modification of the order granting her sole custody. The child was born on May 16, 2014. Following the mother’s admission that the child suffered an unexplained injury while in her care, on December 4, 2014, the Suffolk County Family Court issued an order placing the child with the sister of the purported father and permitting the mother supervised visitation. After it was determined that the purported father was not the child’s father, the child was placed with the mother’s aunt and uncle. On March 10, 2016, a final order of protection was issued against the mother on behalf of the child for two years. When paternity was established, the child’s father filed for full custody and it was granted on March 3, 2017. The mother was granted supervised visits with her mother doing the supervising.