New York Family Law Blog

Published on: October 24, 2022

Family Court granted petition to vacate child support arrears settlement agreement. Michelle B. v. Thomas Y., 2022 N.Y. Slip Op. 50020 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

In a case about a child support arrears settlement agreement, the Family Court was asked to determine whether a mutual mistake of fact was sufficient grounds to vacate the settlement agreement and reinstate the full amount of the arrears.

Background

The mother and father are parents of a child born in 1992. The father was ordered to pay child support through the Support Collection Unit (“SCU”). However, he quickly accumulated an arrears. As of November 13, 2019, when the parties initially appeared before a Support Magistrate, the father had outstanding arrears of $206,055.44 for the child who was then an adult.

Published on: October 19, 2022

Should an incarcerated mother who severely abused her children be permitted visitation? Y.Y.W. v. Z.G., 2022 N.Y. Slip Op. 50071 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

In Y.Y.W. v. Z.G., the mother filed a petition seeking to modify two prior final orders, which denied her custody of her two sons and also prohibited visitation. The orders gave the father full legal and physical custody of the subject children.

Background

In 2016, Hon. Ilana Gruebel found clear and convincing evidence that the mother had severely abused, abused and neglected the older son and consequently derivatively severely abused, abused and neglected the younger son, with whom she was pregnant at the time. The older son was brought to the hospital and was found to have suffered severe injuries from abuse. There were 49 bruises on his body and puncture wounds on his face. As a result of the abuse, he suffered permanent injuries including inability to breathe on his own, inability to eat on his own, complete immobility, and loss of sight.

Published on: October 17, 2022

What is the standard for changing a custody agreement? A.L. v V.T.L. 2022 NY Slip Op 22017

by Stephen Bilkis

In A.L. v V.T.L., the Family Court, Rockland County, was asked to consider the standard for changing a custody agreement that gave one parent final decision-making authority over health-related decision for the children. Here, the issue that led to the dispute was the mother’s decision to vaccinate their younger child for COVID.

Background

The parties married on January 26, 2008. The have two children together: A.T.L. born in 2008 and M.T.L. born in 2010. The parties divorced on May 28, 2015. They signed a Stipulation of Settlement on March 27, 2015 which provide that the parties were to have joint legal custody of the children and that the parties were to jointly consult and agree with each other with respect to the children’s health. It also stated that in the event the parties are unable to agree upon a decision, the mother shall have final decision making authority, subject to the father’s right to seek court intervention.

Published on: October 12, 2022

Can parental access to a child be conditioned on COVID vaccination or COVID testing?, C.B. v. D.B., 2021 NY Slip Op 21268

by Stephen Bilkis

While vaccinations have been around for decades, none have caused as much controversy as the COVID vaccine. In C.B. v. D.B., the Supreme Court, New York County, was asked to determine whether a custodial parent require the noncustodial parent to be vaccinated or show a negative test as a condition for assess to the child.

Background

The parties were married in 2015, and their child, a daughter, was born in 2018. After intense marital discord, the mother (plaintiff) commenced this action for divorce in September of 2019. The mother, describing defendant’s history of substance abuse and untreated mental health issues, as well as the significant periods where he had not seen the child at all, sought to have the father’s access subject to supervision. The court agreed.

Published on: October 5, 2022

In determining whether a custodial parent has the right to relocate with the child depends on whether doing so would be in the best interests of the child. H.K. v R.C. 2021 NY Slip Op 21190

by Stephen Bilkis

When a court makes a decision about custody, parent access, and other aspects related to the custody and care of a child, the court’s decision must be based on what is in the best interests of the child. In H.K. v R.C., the Supreme Court, New York County, was asked to decide whether a parent’s request to relocate over the objection of the noncustodial parent was in the best interests of the child.

Background

The parties have a parenting agreement dated October 28, 2015 (the “Agreement”), which was incorporated into the Judgment of Divorce that was signed on September 19, 2016. Under its terms, the parties have joint legal custody of the child, but it is specified that the child is to “reside primarily with the Mother.” The Agreement provides father with a regular access schedule of alternate weekends, along with one weekly weekday dinner. It also entitles him to substantial holiday and vacation parenting time.

Published on: October 5, 2022

The presumption that a child born to a marriage is the legitimate child of both parents applies equally to a non-biological parent in a same-sex marriage, Wendy G-M. v. Erin G-M., 985 N.Y.S.2d 845 (N.Y. Sup. Ct. 2014)

by Stephen Bilkis

In New York there is a presumption that a child born to a marriage is the legitimate child of both parents. The issue before the Supreme Court of New York, Wendy G-M. v. Erin G-M is whether his same presumption also applies to both parties in a same-sex marriage.

Background

Plaintiff Wendy G-M. and her spouse, Defendant Erin G-M. were married. They were legally married in Connecticut before New York enacted the Marriage Equality Act. Wendy and Erin agreed to have a child together and agreed that the birth mother would undergo artificial insemination. Wendy and Erin also agreed that both the birth mother and the spouse would be the mothers of any child born from the procedure. A child was born to Wendy, who was the birth mother, and the birth certificate listed both Wendy and Erin as the parents. Soon afterward, however, Wendy and Erin separated. Wendy filed for divorce in December 2013, less than then three months after the birth of the child. Wendy would not permit Erin to visit with the child. Erin then filed a request with the Supreme Court of New York for access to the child, maintenance, and attorney fees. In opposition, Wendy argued that Erin was not a legal mother of the child.

Published on: October 3, 2022

What impact should domestic violence have on a custody determination? Wissink v. Wissink, 749 N.Y.S.2d 550 (App. Div. 2002)

by Stephen Bilkis

In Wissink v. Wissink, there was conclusive evidence that the father physically abused the mother. However, there was also conclusive evidence that the father never physically abused the daughter and that the daughter wanted to live with him. The issue that the Appellate Division considered was the impact of a finding of abuse should have on a determination of custody?

Background

Defendant David Wissink and Plaintiff Jane Wissink were married and have a teenage daughter named Andrea, born on June 21, 1986. She is the biological child of the Jane and David. Jane also has a daughter, Karin, by a prior marriage. The parties have had a turbulent relationship marked by numerous episodes of physical violence, police intervention, and Family Court orders of protection. It is clear that David frequently battered Jane. However, he never directly mistreated Andrea, and Andrea favored him over her mother.

Published on: September 28, 2022

In a maintenance determination, what amount of earnings is necessary to enable the recipient to become self-supporting? Lorenz v. Lorenz, 881 N.Y.S.2d 208 (N.Y. App. Div. 2009)

by Stephen Bilkis

In divorce cases, the primary purpose of awarding one party to pay another party maintenance is to provide the receiving party temporary financial support to give them time to become self-sufficient. During the support period, the receiving party is expected to finish school or complete other training so that they would have the skills necessary to get a job and support themselves. In Lorenz v. Lorenz, Supreme Court of New York, Appellate Division, was asked to the amount of time and amount of money is necessary to help enable the receiving party to become self-sufficient.

Background

Defendant William Lorenz and Plaintiff Pamela Lorenz were married for 33 years. Pamela filed a petition for divorce. Both parties were 54 years of age. At the time of the divorce, Williams’s income was over $100,000, and Pamela’s income was $20,000. William was in good health, but Pamela had back problems that affected her work as a hairdresser. The Supreme Court of New York, taking into account the couple’s standard of living prior to divorce, awarded Pamela $500 per week in maintenance from William until such time as Pamela can draw full Social Security benefits, apparently when she becomes 66. William appealed.

Published on: September 26, 2022

A custody agreement providing for a specific religious upbringing will be enforced only if it is in the best interests of the child. Weisberger v. Weisberger, 60 N.Y.S.3d 265 (2017)

by Stephen Bilkis

In Weisberger, the Supreme Court was asked to enforce a religious upbringing clause in the parties’ separation agreement that required to the mother to practice full religious observance in accordance with the Hasidic practices or be relegated to supervised therapeutic visitation.

Background

Plaintiff Naftali Weisberger and Defendant Chava Weisberger married in 2002 and divorced I 2009. They had 3 children. In a stipulation of settlement dated November 3, 2008, the parties agreed to joint legal custody of the children with the mother having primary residential custody. They agreed that the father’s visitation with the children would consist of a two-hour period once per week after school; overnight visitation every other Friday after school until Saturday evening for the observance of the Sabbath; for two consecutive weeks every summer; and an alternating schedule for holidays. The stipulation also contained a religious upbringing clause that the children would be raised Hasidic and that Naftali would choose the children’s school. It further provided that Naftali would pay child support. However, Naftali never paid child support and did not fully exercise his visitation rights.

Published on: September 26, 2022

In a tri-custody case, the Supreme Court, Suffolk County, considered whether a de facto third parent establish legal custody rights. Dawn M. v. Michael M., 47 N.Y.S.3d 898 (2017)

by Stephen Bilkis

With the increasing number of people involved in polyamorous relationships, it is not surprising for the issue of child custody to develop where there are three individuals are in the household raising the child. In Dawn M. v. Michael M., a husband (biological father), his wife, and another woman (biological mother)—decided to conceive and raise a child and the three parties lived together as a family for the first eighteen months of the child’s life. Some time after the husband wife divorced, the ex-wife, who was not the child’s biological mother, became concerned about her legal rights with respect to child custody.

Background

Plaintiff Dawn M. and Defendant Michael M. married in 1994. They tried unsuccessfully to have a child. Dawn became close friends with Audria, and in 2004 Audria moved in with the couple. The three began having three-way sexual relations. As time went on, Audria, Dawn, and Michael began to consider themselves a “family” and decided to have a child together. In 2007 the child was born. Dawn and Audria shared maternal responsibilities. The child called both Dawn and Audria “mommy” and considered both women as his mother.