New York Family Law Blog

Published on: February 3, 2020

Court Awards Custody to Father Who Had Been Primary Caregiver for Two Years- Dariel M. v. Aurelyn Z.G., 2020 NY Slip Op 506 (N.Y. App. Div. 2020)

by Stephen Bilkis

In this case the Appellate Division considered an appeal by the mother of an order from the Bronx County Family Court granting the father primary physical custody of their child.

When considering custody, the Family Court’s overriding consideration is what is in the best interests of the child. Ideally, both parents are equally capable of providing the care the child needs and are able to co-parent effectively despite the end to their romantic relationship. However, that is not always the case. Factors that the court will consider include: which parents has been the primary nurturer of the child, each parent’s parenting skills, the physical and mental health of each parent, whether there has been domestic violence in the home, each parent’s work schedules, the child’s relationship with other family members, the child’s preferences, and parental cooperation. No one factor is determinative and the court has a great deal of discretion in making custody decisions. The court will look at all factors and consider evidence presented by both parents to figure out the custody and visitation arrangement that is in the best interests of the child.

In Dariel M. v. Aurelyn Z.G., the parents split up and the mother left the family home, leaving the child in the family home with the father. In the two years that she had lived away from the family home, appears as if the mother was not greatly involved in the raising of the child. In making its decision, the court gave great weight to the fact that the father had been the child’s primary caregiver for the 2 years leading up to this petition for custody. This means that father took the lead in providing day-to-day care for the child including tending to the child’s emotional, physical, and educational needs. Further, the court noted that the father was better able to provide a stable environment for the child and tend to the child’s educational and medical needs. The mother, on the other hand, had not taken an active role in proving for the child’s educational needs or medical life for the past 2 years. In fact, she had allowed the child’s health insurance coverage to lapse. In addition, the mother did not have a stable job or stable housing.

Published on: January 27, 2020

Family Court Did Not Err in Dismissing Petition for Custody Modification Where Mother Failed to Produce Evidence of Changed Circumstances – Heather U. v. Janice, 2019 NY Slip Op 9338 (N.Y. App. Div. 2019)

by Stephen Bilkis

Typically, custody disputes are between the mother and father of the child. However, family relationships are often complex, resulting in custody disputes between parents and members of the extended family. In Heather U. v. Janice, the custody dispute was between the mother of the child and the child’s great-grandmother. The mother shared joint legal custody with the great-grandmother, but the great-grandmother was awarded physical custody of the child and the mother was awarded visitation. Because the mother had issues as to how the great-grandmother was caring for her child, the mother petitioned the court to modify the custody agreement.

Upon reviewing the petition of the mother in which she alleged that circumstances had changed such that a change in the custody order was appropriate, the Family Court gave both the mother and the great-grandmother two weeks to provide the court with written submissions with details about the alleged changed circumstances. Upon receipt of a written submission from the great-grandmother but none from the mother, the Family Court dismissed the mother’s petition, concluding that the mother had not established that a change in circumstances had occurred such that a modification of the prior custody order was appropriate. The mother appealed to the New York Supreme Court. The Supreme Court upheld the Family Court’s dismissal.

Under New York law, a custody order will only be modified if the circumstances have changed such that a modification would be appropriate. For example, if one of the factors that contributed to a father being awarded sole legal and physical custody was that the mother was abusing alcohol, a changed circumstance would be that the mother has been sober for an extended period. Or, if one of the factors that contributed to a mother being awarded custody was that the court determined that she had better parenting skills, a changed circumstance would be that the child was doing poorly at school and was not receiving appropriate medical care or mental health care.

Published on: January 27, 2020

A Change in the Mental Health of a Parent May Be Sufficient Grounds for a Custody Modification – Farner v. Farner, 152 A.D.3d 1212 (N.Y. App. Div. 2017)

by Stephen Bilkis

In Farner v. Farner, the Appellate Division considered whether a change in the mental health of the custodial mother was sufficient grounds for a custody modification.

Upon divorcing, the mother and father created a parenting agreement that was incorporated into their divorce decree. According to the agreement, the mother was designated the primary residential parent. She lived in Georgia. The father, who lived in New York, was awarded visitation. Sometime later, the father became concerned about the well-being of his child in the care of the mother and her live-in boyfriend and petitioned the court for a modification to the custody and visitation arrangement.

In New York, custody arrangements are meant to be stable. The court will not alter an arrangement on a whim, as it is important for the child’s living arrangements and relationship with his or her parents to be stable and consistent. However, the court does recognize that circumstances do sometimes change from when a custody agreement was established. If there is a substantial change in circumstances, upon petition, the court will consider whether a change to the custody or visitation arrangement is in the best interests of the child. One reason that the court will change a custody arrangement is if a change in the physical or mental health of a parent negatively impacts the parent’s ability to care for the child.

Published on: January 20, 2020

Custodial Interference Can Be the Basis for Suspending the Obligation to Pay Child Support – Katz v. Katz, 2008 NY Slip Op 7873 (N.Y. App. Div. 2008)

by Stephen Bilkis

In Katz v. Katz, the Appellate Division considered whether a father’s obligation to pay child support could be suspended because the mother interfered with his visitation.

The general rule is that under New York law a noncustodial parent’s access to a child and his or her obligation to pay child support are separate issues. The court can require a parent to pay child support and also deny the parent visitation. If a custodial parent refuses to allow the noncustodial parent access to the child, the noncustodial parent should petition the court for custody or visitation. If there is a custody or visitation order in place and the custodial parent does not allow the noncustodial parent access to the child as required by the order, then the custodial parent is violating a court order. The aggrieved parent should take up the matter with Family Court. The remedy is not for the noncustodial parent to simply withhold child support. If the custodial parent is willfully interfering with visitation, upon petition the court may suspend or even cancel the noncustodial parent’s obligation to pay child support.

In Katz v. Katz, upon the couple’s divorce, the mother was awarded physical custody of the couple’s children. The father was awarded visitation. The father was also ordered to pay child support in the amount of $10,000 per month. The father petitioned the court to suspend his obligation to pay child support because the mother was not permitting him to have access to the children as required by the custody order. He also requested a recoupment of the child support that he had already paid. In support of his petition the father alleged multiple incidents in which the mother interfered with his parenting time and denied him telephone contact with the children. The mother responded by filing a motion to dismiss.

Published on: January 20, 2020

In the Absence of Allegations of Misrepresentation or Fraud the Court Will Not Vacate An Acknowledgement of Paternity – M.H. v. S.S., 2017 NY Slip Op 50373(U) (N.Y. Fam. Ct. 2017)

by Stephen Bilkis

While a DNA test will show almost definitively (90-99% accuracy) whether a man is the father of a child, in New York there are other ways to establish paternity. One way is by signing an Acknowledgement of Paternity (AOP). Both parents must sign the document, it must be witnessed, and it must be filed with the Office of Vital Records/Corrections Unit. Typically, parents file the document soon after the child is born, but it can be completed any time after the birth up until the child is 21 years old. Once an Acknowledgement of Paternity is filed, the father is considered the legal father of the child and has both the legal rights and obligations of a father. This means that the father is responsible for financially supporting the child and can be required to pay child support. It also means that the father is entitled to have access to the child and can petition for custody or visitation.

In M.H. v. S.S., the mother and father of the child were living together at the child the time was born. They signed an Acknowledgement of Paternity the day after the child was born. Eight months later, the relationship ended, and the mother moved. She then filed a petition for custody. She was eventually awarded sole legal and physical custody. The father was granted visitation. Two years later, the father filed a petition to enforce visitation. In the petition he acknowledged that he was the father of the child. The mother then filed a petition against the father for child support. Interestingly, the very next month, expressing doubts as to whether he was the child’s father, the presumed father filed a petition to vacate the Acknowledgement of Paternity.

Once an Acknowledgement of Paternity has been filed, it is difficult to overturn. The petitioner seeking to vacate an Acknowledgement of Paternity must allege that he signed it based on fraud, misrepresentation, or other misconduct.

Published on: January 13, 2020

In Two Paternity Cases The Court Applied The Doctrine of Equitable Estoppel – Seth P. v. Margaret D., 2011 N.Y. Slip Op. 9648 (N.Y. App. Div. 2011)

by Stephen Bilkis

In paternity cases in New York, there is a doctrine referred to as “equitable estoppel.” Typically, the doctrine is applied in instances where a man has held himself out to be a child’s father and later seeks to deny paternity or to disprove paternity through DNA testing. In such cases, it has been established that it is not in the best interests of the child to disturb the father-child relationship that the putative father has established or to disturb the financial support that the putative father has provided. Thus, the father is stopped from denying paternity.

In the case of Seth P. v. Margaret D., it is the father who petitioned the court to stop the mother from denying that he is the father of her twins. The mother of the children was married to another man at the time that she had a sexual relationship with the petitioner. For the first 8-9 years of the children’s lives, the mother allowed the petitioner visitation. She treated him as if he was the father of the children and allowed him to develop a relationship with the children. In 2008 the mother changed her behavior and stopped allowing the petitioner access to the children. In other words, she stopped treated him as if he was the father of the children. It is unclear as to why the mother’s behavior changed. As a result of the mother denying the petitioner access to the children, the putative father petitioned the court to establish paternity. Using the doctrine of equitable estoppel, the court adjudicated that the petitioner was the children’s legal father.

This case is notable because the court adjudicated the petitioner to be the father of the children even though the mother was married to another man at the time the children were born. Typically, if a mother is married when her child is born, her husband is deemed the father of the child, regardless of whether he was the biological father of the child. However, because for several years the mother effectively acknowledged that the petitioner was the father of the children by allowing him to establish a parent-child relationship with each of the children, the presumption was essentially rebutted by the actions of the mother and the petitioner.

Published on: January 13, 2020

Court Orders Supervised Visitation Where Unsupervised Visitation Would Be Detrimental To The Child- Spencer v. Killoran, 2017 NY Slip Op 991 (N.Y. App. Div. 2017)

by Stephen Bilkis

In this case the Family Court was asked to determine whether to modify a visitation order to give the mother unsupervised visitation with her children.

In New York, visitation with a child is typically unsupervised. This means that the non-custodial parent is generally permitted time alone with the child and is free to do whatever he or she chooses to do with the child as long as it is not in violation of the custody order. If, however, the court determines that it is not safe for the child to spend time alone with the parent, then the court will order supervised visitation. Family Court will order supervised visitation when it determines that the child may be in danger if alone with the parent. For example, if the parent is struggling with alcohol or drug addiction, the court would likely require supervised visitation. If the parent has physically abused the child, the court may not want the parent to be alone with the child. Also, supervised visitation may be required if there is a concern that the parent may abduct the child.

In Spencer v. Killoran the mother did not have custody of her children. When the children were 6 years old, the court awarded custody to the cousins of the mother because of the mother’s abuse of alcohol. Three years later, the mother requested access to her children in the form of visitation. Not entirely convinced that the mother had stopped abusing alcohol, the court entered an order allowing the mother unsupervised scheduled visitation with her children with the stipulation that she was monitored daily for alcohol use for a period of 6 months. On two dates during the 6-month period, the mother tested positive for alcohol use. The cousins petitioned the court to modify the visitation schedule to require the mother to have only supervised visits. The court so ordered. However, the court did not set a supervised visitation schedule, and instead directed that the visitation would be as the mother and cousins agreed. The mother appeals, arguing that the court erred in modifying the previous visitation order.

Published on: January 6, 2020

Grandparent Visitation Terminated Due To Change In Circumstances – Matter of Wilson v. McGlinchey, 2 N.Y.3d 375 (N.Y. 2004)

by Stephen Bilkis

Grandparents often feel that they have an absolute right to see their grandchildren, even if the parents of the children do not want the grandparents involved. While children often benefit from having relationships with their grandparents and other extended family members, grandparents do not automatically have a legal right to do. Only parents have a legal right to custody of their children. A parent’s access to their children will only be limited or denied if it is shown to be in the best interests of the children. Grandparents do not have a similar right.

In Matter of Wilson v. McGlinchey, the New York Court of Appeals considered whether the visitation rights of grandparents should have been terminated. The mother of the child had been estranged from her parents, the grandparents of the child, well before the child was born. When the child was 4 months old, the grandparents petitioned Family Court for visitation. The child’s parents were vehemently against it. However, the parties eventually reached a visitation agreement such that the grandparents were permitted 8 hours per month with the child. The agreement was incorporated into a Family Court order.

Several months after the order was established, the parents filed a petition with Family Court to terminate visitation between their daughter and the grandparents. The parents alleged that circumstances had changed such that visitation with the grandparents was no longer in the best interests of the child. The parents noted that the visitations did not go well, that she had difficulties getting the grandparents to leave after visitation, and that the visitations upset the child. The Family Court denied the parents’ petition to discontinue the grandparent visitation, and the parents appealed.

Published on: December 8, 2019

Court Decides Whether to Grant Father Unsupervised Parental Access- Gonzalez v. Santiago, 167 A.D.3d 885 (N.Y. App. Div. 2018)

by Stephen Bilkis

In this case the Family Court was asked to determine whether to grant a father unsupervised visitation with his child because he lost his job and could not to afford the fees associated with supervised visitation.

The parents of the child were never married. Their relationship ended when the child was 6 months old, and the mother accused the father of domestic violence and received an order of protection. Both parents petitioned for custody. The Family Court awarded the mother custody and the father 4 hours of weekly unsupervised visitation. A few months later the mother petitioned the court for a modification to the custody order, alleging that the father had harmed the child. The court changed the father’s access to 4 hours per week of professionally supervised visitation. The order required that the father pay the expense associated with the supervised visitation.

A few months later the father petitioned the court for another modification of the custody order, asking that his access be changed back to unsupervised as he had lost his job and was not able to afford to pay the fees associated with the supervised visitation. In denying the father’s petition the Family Court noted that according to the father’s own testimony, even before he lost his job he had difficulty paying the supervised visitation expenses. Thus, when he lost his job, there was not a true change in circumstances as required for the court to consider modifying a custody arrangement. The father appealed.

Published on: December 8, 2019

Visitation Interference May Result in Suspension of Child Support Obligation – Vasquez v. Powell, 111 A.D.3d 754 (N.Y. App. Div. 2013)

by Stephen Bilkis

In this case the Family Court considered whether interference with visitation was a reason to stop paying child support and whether it would cancel child support arrears. The father was awarded custody of the child and the mother visitation. The mother was also required to pay child support to the father. She complained that the father was not complying with the visitation schedule. She argued that she should not have to pay child support if she was not getting access to the child as outlined in the custody order.

The court takes interference with visitation very seriously. When the court issues a custody order, both parents must follow it. This means that the custodial parent must deliver the child to the non-custodial parent at the time and place agreed upon. Willful failure to do so is illegal. If this happens occasionally, the court will likely only chastise the parent and warn him or her to comply with the order. If it happens repeatedly, the court will view it as willful and take steps to ensure that the order is followed. One remedy may be suspending the obligation of the non-custodial parent to pay child support.

In Vasquez, the mother filed a petition to hold the father in civil contempt for violating an order of visitation. As part of the relief sought, the mother requested that her obligation to pay child support be suspended. She also requested that the court cancel her child support arrears. While the court noted that it has the discretion to suspend child support payments for violations of an order of visitation, it also made it clear that the court would not have the authority to cancel arrearages. It further noted that in this case there was no evidence that the father actively interfered with the mother’s visitation. The evidence showed that at times the child did not want to take advantage of the scheduled visitation, and the father did not force the child.