New York Family Law Blog

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.

Published on: September 26, 2022

Does the SUNY cap apply in determining parental contribution to educational expenses? Pamela T. v. Marc B., 930 N.Y.S.2d 857 (2011)

by Stephen Bilkis

In New York, as part of a divorce and child support settlement, parents can be required to contribute to their children’s educational expenses. The SUNY Cap attempts to limit the required contribution of both parents to the cost of State University of New York (SUNY) tuition. In Pamela T. v. Marc B., a high-conflict divorce with substantial assets, the parents disagreed on each parent’s contribution to college tuition of one of their children, with one parent wanting to limit it to the SUNY cap.

Background

Plaintiff Pamela T. and Defendant Marc B. divorced in 2008. They had two children. The parties had similar annual salaries, each earning just over $100,000 per year. Pamela had approximately $1,200,000 in assets. Marc had approximately $600,000 in assets. Both Pamela and Marc attended private colleges and both have law degrees. Their amended stipulation of settlement addressed child custody and child support. Pamela was awarded custody and Marc was ordered to pay child support. However, it did not address payment of the children’s college tuition and expenses.

Published on: September 21, 2022

New York Supreme Court discussed the concept of zones of final decision-making authority in point custody situations. J.R. v. M.S., 55 N.Y.S.3d 873 (2017)

by Stephen Bilkis

Child-rearing decisions are often challenging when couples divorce or otherwise end their romantic relationship. In some cases, there is so much animosity between parents that they are unable to effectively communicate with respect to the needs of the child. In J.R. v. M.S., the New York Supreme Court was asked to decide on the custody arrangement where they had a history of having trouble working together to make certain child-rearing decisions.

Background

The parties were married in 1999. There were tensions throughout their marriage and the tensions intensified after the birth of their only child in 2007. In 2013, the father revealed he had an affair and the couple separated. In January 2014, the father filed for divorce. In September 2014, the parties entered into an agreement setting forth an interim parental access schedule. For the next two years, the parties attempted to agree on a parenting plan. There were countless settlement conferences and numerous draft agreements. Ultimately, the parties were unable to reach a compromise.

Published on: September 19, 2022

Appellate Division determined that child support payments may be suspended if the custodial parent unjustifiably prevented access to the child. Usack v. Usack, 17 A.D.3d 736 (N.Y. App. Div. 2005)

by Stephen Bilkis

Generally, child support and custody are two different issues. Parental access is not based on the amount of child support is paid or whether it is paid on time or is in arrears. This means that a parent who has been ordered to pay chid support cannot stop paying child support simply because they have not had access to the child. In Usack v. Usack, the Appellate Division was asked to review this general rule in circumstances where the custodial parent intentionally prevents the non-custodial, child support paying parent access.

Background

Plaintiff James Usack and Defendant Linda Usack were married for 20 years and had three children. Linda had a good relationship with the children. After Linda had an affair with another man, James filed for divorce. James told the children about the affair, and from that point on, the children’s relationship with Linda was strained. The Supreme Court of New York granted James custody of the children and ordered Linda to pay child support a portion of the uninsured medical expenses for all three children.

Published on: September 14, 2022

A family court can grant a protection order prohibiting a minor from contacting a child, even though the minor is too young for criminal prosecution. Emily K. v. Luis J., 997 N.Y.S. 2d 510 (2014)

by Stephen Bilkis

In New York, a family court proceeding, pursuant to Article 8, allows a petitioner, the opportunity to civilly address an action that would otherwise be a crime. A family court proceeding under Article 8 is entirely different from a criminal prosecution for the same types of allegations, or even the exact same incident. However, in a criminal prosecution, the case is brought by the District.

Background

Luis J., and the petitioner’s daughter were each 13 years old when the petition was filed. They had been in an on-and-off dating relationship for several years. The two were classmates in kindergarten and had an intermittent boyfriend-girlfriend relationship from fifth to eighth grade. Initially, the relationship involved handholding, kissing, texting, and phone calls. The daughter testified that by sixth grade, Luis J. was texting or calling several times a day and has become jealous, controlling, and isolating.

Published on: September 12, 2022

The ICWA is applicable to the adoption of a Native American child even if the child’s Native American parents do not participate in tribal life. In re Baby Boy C., 805 N.Y.S.2d 313 (2005)

by Stephen Bilkis

The Indian Child Welfare Act of 1978 (ICWA) was enacted in response to practices that separated large numbers of Native American children from their families and tribe. See 25 USC § 1901 et seq. It is common for representatives from the relevant Indian tribe to intervene in child custody proceedings involving Indian children. The ICWA established certain placement preferences for Indian children who, as in the case of In re Baby Boy C., are no longer in their parents’ custody.

Background

Defendant Rita C., a Native American member of the Tohono O’odham Nation tribe (Tribe), gave birth to Baby Boy C. in March 2004. The father, Justin W., was not Native American. Rita grew up in a tribal community but eventually left it and no longer participated in its political, social, and religious affairs. Her other children were not being raised in a tribal community.

Published on: September 7, 2022

New York Supreme Court considered a divorce petition even though a divorce was already granted in another state. Weiss v. Weiss, 29 Misc. 3d 1202(A) (2010)

by Stephen Bilkis

A divorce proceeding must be initiated in the state where at least one of the parties is domiciled. Not only must one of the parties be domiciled in the state where the divorce proceeding is initiated, the person must have met the minimum residency requirements.

In Weis v. Weis, because of there was a question related to residency requirements, the New York Supreme Court was asked to grant a divorce even though the other spouse had sought and was granted a divorce in another state.

Background

Published on: September 5, 2022

Appellate Division found that a trial court cannot confirm a custody order that was determined by arbitration. Schechter v. Schechter, 63 A.D.3d 817, 881 N.Y.S.2d 151 (2009)

by Stephen Bilkis

In Schechter v. Schechter, the court considered whether a religious arbitration tribunal could determine child custody and whether the Supreme Court could then confirm the arbitration decision.

Background

David Schechter, the plaintiff and Wendy Zehava Schechter, the defendant entered into an agreement pursuant to which they agreed to arbitrate all marital issues between them before a rabbinical arbitration tribunal, the Bais Din. The Bais Din wrote a decision, awarding the parties joint custody of the couple’s 14-year-old daughter. David filed a motion to confirm the arbitration agreement before the Supreme Court, Nassau County, the appropriate trial court. Wendy consented to the trial court confirming the award with certain exceptions.

Published on: January 21, 2022

A fault-based divorce should not be granted without sufficient proof of constructive abandonment. Molinari v. Molinari, 2007 WL 1119894 (Sup. Ct. N.Y. 2007)

by Stephen Bilkis

Fault divorce is granted when one spouse proves that the other spouse did something which resulted in the failure of the marriage. Under New York Domestic Relations Law, grounds for fault-based divorce include:

Cruel and inhuman treatment. DRL §170.1
Abandonment for a continuous period of one year or more. DRL §170.2