New York Family Law Blog

Published on: August 14, 2023

No due process violation found and order terminating parental rights of father upheld. Christopher D.S. v. Richard E.S., 136 A.D.3d 1285 (N.Y. App. Div. 2016)

by Stephen Bilkis

The case of Christopher D.S. v. Richard E.S. involves a father’s appeal from a decision terminating his parental rights with respect to five children. The father challenges the denial of his recusal request and asserts a violation of due process regarding diligent efforts for reunification.

In New York, terminating parental rights is governed by Social Services Law § 384–b, a statute designed to protect the welfare of children when parental relationships become untenable. The law outlines a meticulous process to safeguard the best interests of the child before such a severe measure is taken. A termination proceeding under § 384–b typically arises in cases of parental neglect, abuse, or other circumstances jeopardizing the child’s well-being.

Before initiating termination proceedings, the petitioner, often a child protective agency or the Department of Social Services, must establish grounds for termination, such as abandonment, chronic abuse, or substantial neglect. The court conducts a thorough examination, considering the child’s safety and best interests paramount.

Published on: August 9, 2023

Court refused to allow father who was convicted for child rape to have visitation with his child. Davis v. Davis, 265 AD2d 552, 553 (NY App. Div. 2d Dep’t 1999)

by Stephen Bilkis

The “best interests of the child” is a paramount legal standard used in family law to guide decisions regarding custody, visitation, support, and other matters that directly affect children. Essentially, it mandates that any decision made by the court or involved parties must prioritize what is best for the child’s overall well-being, growth, and development.

The case of Davis v. Davis, 265 AD2d 552, 553 (NY App. Div. 2d Dep’t 1999), delves into a visitation proceeding with unique circumstances, shedding light on how the court navigates the complexities to determine what is in the best interests of the child.

When it comes to visitation, the court’s focus is firmly on ensuring the child’s welfare, emotional development, and stability throughout the visitation process. This means maintaining a consistent and stable visitation schedule that helps the child feel secure. The quality of the relationship between the child and the visiting parent is a critical factor, with a positive and strong bond being seen as beneficial for the child. Safety and well-being during visitation are paramount, so the court carefully examines the environment and the visiting parent’s ability to provide a nurturing and secure space. Additionally, the court assesses the parents’ fitness and capacity to provide a stable and loving environment during visitation.

Published on: August 7, 2023

Court determined that it was not in the best interests of the child to grant visitation to incarcerated petitioner. Rodriquez v. Van Putten, 309 AD2d 807 (NY App. Div. 2d Dep’t 2003)

by Stephen Bilkis

The principle of “best interests of the child” is a fundamental legal standard used in family law to guide decisions regarding child custody, visitation, support, and other matters that impact a child’s well-being. It is a paramount consideration meant to ensure the child’s overall welfare and development take precedence over the desires or interests of the parents or other parties involved.

In essence, determining the best interests of the child involves a thorough assessment of various factors. These can include the child’s age, physical and mental health, educational needs, established routines, relationships with each parent, and any history of domestic violence or substance abuse within the family.

Judicial decisions are made with the aim of promoting stability, security, and continuity in the child’s life, ensuring they maintain meaningful and consistent relationships with both parents when possible. The court strives to create an environment that encourages the child’s growth emotionally, physically, intellectually, and morally.

Published on: March 27, 2023

Weight a teenage child’s preference should be given in a custody dispute. Newton v. McFarlane, 174 A.D.3d 67 (N.Y. App. Div. 2019)

by Stephen Bilkis

In New York custody disputes, the weight given to a teenage child’s preferences can significantly impact the court’s decision. While the child’s input is considered, it’s not the sole determinant in custody proceedings. Judges take various factors into account, including the child’s age, maturity level, and ability to articulate their wishes. Additionally, the court evaluates the child’s relationship with each parent, their living arrangements, and overall well-being. While a teenager’s desires are taken seriously, the court ultimately prioritizes the child’s best interests.

Background

In 2013, the Family Court awarded sole legal and physical custody of the parties’ child, a 17-year-old girl, to the father. This decision was affirmed by the court. In 2016, the mother initiated her third attempt at custody modification, seeking sole legal and physical custody. Despite objections from the child’s attorney, the Family Court conducted a full custody hearing without assessing if the mother had alleged a sufficient change in circumstances. Following the hearing, the Family Court concluded that the mother demonstrated changed circumstances justifying sole custody, stating it was in the child’s best interests. However, the court failed to provide a detailed explanation for its decision in the order, promising a full decision that was never issued.

Published on: December 28, 2022

Family Court dismissed case because the parties did not have a family or intimate relationship. Coleman v. McKenzie, 2022 N.Y. Slip Op. 50514 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

In New York, Family Court can only adjudicate matters that involve people in “familial” relationships. Generally, familial relationships are blood relationships, marriage relationships, and intimate relationships. Note that an intimate relationship does not have to be a sexual relationship. However, it does need to be more than a casual friendship. The purpose of a family court proceeding, pursuant to Article 8 of the Family Court Act, is to allow a petitioner the opportunity to seek help for the offending family member instead of subjecting the family member to the potential punishment that would be imposed by a criminal court. In Coleman v. McKenzie, the court was asked to decide if a relationship amounts to a “familial” relationship as contemplated by Article 8 of the Family Court Act.

Background

On December 30, 2021, the petitioner filed a petition in Family Court requesting a final Order of Protection against respondent. In response, the respondent argued that the court should dismiss the petition because the Family Court lacked subject matter jurisdiction over this matter because a familial connection did not exist between the petitioner and the respondent. CPLR § 3211 (a)(2). The petitioner responded that that the petitioner and the respondent are “like family,” and therefore have a relationship that satisfies the requirements of Article 8 of the Family Court Act.

Published on: December 26, 2022

Because of a mother’s pattern of false accusations against the father, the court modified the custody order. Aquitani v. Aquitani (In re a Custody Proceeding Under Article 6 of the Family Court Act), 2022 N.Y. Slip Op. 50730 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

In New York, courts will only modify a custody order if there has been a change in circumstances. Examples, a change in circumstances include one parent abusing the child or substance abuse. In Aquitani v. Aquitani, there is a history of the mother accusing the father of abuse. Those accusations as well as the father alleging that the mother had a substance abuse problems are the basis of the father’s request to modify the custody order.

In addition to hearing testimony from the parents, the court ordering a Lincoln hearing during which the judge heard testimony from the child regarding his custody and visitation preferences.

Background

Published on: December 19, 2022

Court denied mother’s request to relocate out-of-state with child. Dunn v Harris 2022 NY Slip Op 50641(U)

by Stephen Bilkis

Whenever parents wants to relocate with the children, there is likely going to be objections from the other parent. Custody orders routinely include provisions that prevent one parent from permanently leaving the jurisdiction with the children without the consent of the other parent. In making a decision whether to permit a parent to relocate with the child, the court will consider what is in the best interests of the child.

In Dunn v Harris 2022 NY Slip Op 50641(U), the mother wished to relocate from New York to Denver, Colorado for a new job. The father objected. The mother responded by seeking legal custody and permission to relocate to Denver, Colorado.

Background

Published on: December 14, 2022

Court awarded sole custody to mother because she was better able to provide for the needs of the child. a Child Custody Proceeding Under Article 6 of Family Court Act v. TD, 2019 N.Y. Slip Op. 52151 (N.Y. Fam. Ct. 2019)

by Stephen Bilkis

When it comes to child custody, the preference of the court is to award the parents joint custody because that is what is generally in the best interests of the child. In this case, each parent sought sole legal and physical custody. The court had to figure out if joint custody was feasible and in the best interest of the child or if awarding one of the parents sole custody was appropriate.

Background

Petitioner father and respondent mother are the parents of a 2-year old child, born on June 21, 2017. The couple was never married. Paternity was established on November 22, 2017. The couple had an agreed upon parenting schedule, but did not follow it. Thereafter, Petitioner sought sole legal and physical custody of the child, asserting that his work schedule was more flexible. In the alternative, petitioner requests one day of parenting time a week. In response, the mother also filed a petition seeking sole legal and physical custody of the child.

Published on: December 12, 2022

Court refused father’s request for a temporary modification to custody order. K.A. v. N.Q. (In re a Proceeding Under Article 6 of Family Court Act), 2022 N.Y. Slip Op. 50187 (N.Y. Fam. Ct. 2022)

by Stephen Bilkis

When a court issues a custody order, it is designed to be permanent. Typically, courts consider a substantial amount of evidence from both parents before making a decision on custody. The goal of the court is to do what is in the best interests of the child. Generally, that would be joint custody and relatively equal parenting time. Before issuing the order, the court would consider each parent’s financial situation, each parent’s living environment, who has been the primary caregiver, the parents’ ability to communicate with other, and the each parent’s interest in supporting the other parent’s relationship with the child. Thus, the court will only change a custody order if there has been a change in circumstances.

Generally, when a parent petitions the court about modifying a custody agreement, the parent requests a permanent change to the order because of a change in circumstances. However, there are instances in which the parent requests a temporary change in a custody. In K.A. v. N.Q. the father asked the court to temporary give him sole custody and physical custody until the mother received help for her anger issues.

Background

Published on: December 7, 2022

Where parents disagreed on vaccination issue, the Family Court gave the mother final decision-making authority. L.N. v. V.V., 2019 N.Y. Slip Op. 52174 (N.Y. Fam. Ct. 2019)

by Stephen Bilkis

When parents are awarded joint custody and joint decision-making, it is because that is in the best interests of the child. When issuing such an order, the court has also determined that the parents get along well enough to make parenting decisions jointly, despite disagreeing on some issues. When parents don’t agree and are unable to compromise, the parents often seek a custody modification from the court.

Even in cases where parents are otherwise able to make joint decisions, the issue of vaccinations has been an area of disagreement between parents, leading to litigation. In L.N. v. V.V., the court was asked to give one parent final decision-making authority since the parties were at an impasse on the issue of vaccinations.

Background