New York Family Law Blog

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

Published on: September 13, 2023

Court modified custody order based on one parent being better able to handle child. Matter of Ross v. Trento, 275 A.D.2d 972 (N.Y. App. Div. 2000)

by Stephen Bilkis

There are many reasons that parents may petition the court for a modification of a custody order. In the case of Matter of Ross v. Trento, the petitioner requested a modification because the child was more well-behaved at her house than at the father’s house.

In New York, modifying a custody arrangement is guided d by the principle that such changes should only occur upon a demonstrated change in circumstances that necessitates the modification to ensure the continued best interests of the child. The court assesses whether the proposed modification serves the child’s welfare more effectively than the existing arrangement. Key considerations include factors such as the child’s age, adjustment to their current environment, and the stability of both parents’ households. The party seeking modification bears the responsibility of presenting a substantial and material change in circumstances, emphasizing the court’s commitment to maintaining stability in the child’s life while prioritizing their overall well-being. This standard reflects the judiciary’s dedication to preserving the child’s best interests in custody decisions.

Background

Published on: September 11, 2023

Matter of Rose v. Eveland, 241 A.D.2d 638 (N.Y. App. Div. 1997)

by Stephen Bilkis

In New York, a noncustodial parent’s right to visitation remains generally intact even during incarceration. The presumption is that maintaining contact with the noncustodial parent is in the child’s best interest. While incarceration alone doesn’t render visitation inappropriate, the court considers the circumstances to ensure the child’s welfare. The denial of visitation is viewed as a drastic measure, warranted only if substantial evidence indicates potential harm to the child. Courts may implement supervised visitation in appropriate settings, balancing parental rights with the child’s well-being, reinforcing the significance of maintaining meaningful connections despite parental incarceration.

In the case of Matter of Rose v. Eveland, the court addressed the complex issue of a noncustodial parent’s right to visitation while incarcerated. The father, the petitioner, sought regular visitation with his son, challenging the Family Court’s decision that deemed such visits unnecessary for the child’s well-being.

In New York, granting visitation to incarcerated parents involves a careful evaluation of the child’s best interests and the incarcerated parent’s circumstances. Generally, it is presumed to be in the child’s best interest to have visitation with their noncustodial parent, even if the parent is incarcerated. The court considers factors such as the child’s relationship with the parent, the potential impact on the child’s well-being, and the incarcerated parent’s ability to maintain a meaningful connection despite the limitations of incarceration. The denial of visitation is viewed as a drastic measure, only warranted if substantial evidence indicates it would harm the child. The court aims to balance the rights of the incarcerated parent with the child’s welfare when making visitation decisions.

Published on: September 6, 2023

Appellate Division upheld denial of visitation rights of young child with incarcerated father. Matter of Ellett v. Ellett, 265 A.D.2d 747 (N.Y. App. Div. 1999)

by Stephen Bilkis

In Matter of Ellett v. Ellett the court was ask to grant an incarcerated individual in-person visitation with his young daughters. That would require the daughters to be brought to him at Clinton Correctional Facility.

In matters of visitation rights for incarcerated individuals, New York law acknowledges the importance of maintaining parent-child relationships while considering the child’s best interests. The court may grant visitation even during incarceration, presuming it aligns with the child’s well-being. However, factors such as the child’s age, the nature of the parent’s sentence, and the potential impact of visitation on the child’s welfare play pivotal roles. While visitation denial is a drastic measure, the court weighs these elements judiciously to ensure decisions align with the unique circumstances of each case, emphasizing the paramount interest of the child involved.

Background

Published on: September 4, 2023

Father’s incarceration alone did not warrant denial of his visitation petition. Rodriquez v. Van Putten, 309 AD2d 807 (NY App. Div. 2d Dep’t 2003)

by Stephen Bilkis

Cases concerning child visitation present intricate legal landscapes. One such case, Rodriquez v. Van Putten (309 AD2d 807), sheds light on the delicate balance between a parent’s right to visitation and a child’s best interests. This Appellate Division case grapples with the implications of a father’s incarceration on visitation rights.

Taking a looking at New York’s general standard for visitation, the courts examine various factors to determine what’s in the child’s best interests are met. The child’s preferences and wishes, adjusted for their age and maturity, are taken into account. Another crucial factor is the nature of the existing relationship between the child and each parent, assessing emotional bonds and effective communication. Additionally, the overall mental, emotional, and physical well-being of each parent is evaluated to ensure they can provide a safe and nurturing environment for the child. Any history of abuse, neglect, or domestic violence is taken into serious consideration to ensure the child’s safety and well-being. Additionally, the parent’s work schedule, availability, criminal record, or any substance abuse issues are scrutinized to understand their ability to be present and responsible caregivers. Overall, New York courts aim to craft visitation schedules that prioritize the child’s growth, development, and happiness, aiming for an environment that fosters their well-being and positive future.

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