New York Family Law Blog

Published on: January 3, 2022

New York recognizes the same-sex of marriage validly entered into outside of New York. Beth R. v. Donna M., 853 N.Y.S.2d 501 (2008)

by Stephen Bilkis

At the time that this case was decided, New York did not recognize same sex marriage. The law changed on June 24, 2011. Before that time, it was common for same sex couples to get married outside of New York in jurisdictions that did recognize same sex marriage. Just like with any marriage, when same sex relationships dissolved, legal questions related to child custody and child support had to be resolved. In Beth R. v. Donna M., the Supreme Court of New York was asked to determine whether New York recognizes same sex marriages validity entered into outside of New York and what the rights and obligations are of the parties regarding child custody and child support.

Background

Plaintiff Beth R. and Defendant Donna M., both residents of New York, met in 1999 and soon thereafter entered into an intimate relationship. The moved in together in 2002. In 2003, Donna became pregnant through artificial insemination.

Published on: April 20, 2020

Separation and Property Settlement Agreement Prepared by Mediator Was Not Unconscionable- Irizarry v Hayes, 2020 NY Slip Op 50217(U)

by Stephen Bilkis

In this case the Supreme Court considered whether the terms of a separation agreement prepared by a non-attorney mediator were unconscionable and as a result should be voided.

A separation agreement is a document agreed to by a husband and wife in which they agree to the conditions related to how they are going to live separately, such as property division, spousal maintenance, child custody, and child support. While a separation agreement is not always a precursor to a divorce, it can be. In fact, when filing for a divorce in New York, you must state the grounds for the action. One of the possible grounds is that the couple has been separated pursuant to a separation agreement. According to Dom. Rel. Law §170 (6), if a couple signed and notarized a separation agreement, are not living together, and have abided by the terms of the agreement, then they would have grounds for divorce.

In this case Irizarry v Hayes, the couple married in 2008 and had one child. A prenuptial agreement was drafted. Both parties were aware of its terms and agreed to them, but only the husband signed it. As a result, the prenuptial agreement was not enforceable. Several years later the couple experienced problems. After meeting with a mediator, the couple signed a separation agreement in 2016. In the agreement they acknowledged that they were encouraged to seek the advice of independent counsel, that they had the opportunity to seek independent counsel and financial advisors to review the agreement, and that by signing it they agreed to file an uncontested divorce action. The husband then filed an action for an uncontested divorce, and in her answer the wife consented to the uncontested divorce. The wife also stated in the answer that she “waives her right to any additional equitable distribution of marital property insomuch as all properties ever jointly owed, shared or enjoyed, have been distributed between the parties voluntarily prior to the commencement of the action by and through their Separation and Property Settlement Agreement.” The couple received a judgement of divorce.

Published on: April 13, 2020

Despite Child’s Wishes, Non-Custodial Father Granted Visitation- Matter of Byron M. v Sasha A., 2020 NY Slip Op 02243 (N.Y. App. Div. 2020)

by Stephen Bilkis

In this case the Appellate Division examined whether the family court considered the 14-year-old child’s wishes when granting the father visitation.

In making decisions about custody and visitation, the Family Court’s primary concern is to do what is in the best interests of the child. The determination of what is in the best interests of the child requires an examination of a number of factors. One factor is a rebuttable presumption that it is in the child’s best interest to have a relationship with both parents. In other words, unless there is convincing evidence that it would not be in the best interests of the child to have visitation with the noncustodial parent, the court will allow it. For example, if there was evidence that visitation would result in the child suffering serious emotional harm or physical harm, then the court would not order visitation.

If the child is old enough, the court will also consider the wishes of the child. In this case, the child, a 14-year old girl, was interviewed in camera. It appears that the child did not want to spend time with her father, not because she was concerned that he would harm her, but because she did not have a relationship with him. He was basically a stranger to her and she had no emotional bond with him.

Published on: April 6, 2020

Appellate Division Reversed Family Court Decision Denying Mother’s Request for Visitation Modification- Matter of Jessica D. v Michael E.2020 NY Slip Op 02133 (N.Y. App. Div. 2020)

by Stephen Bilkis

In this case the Appellate Division reviewed an order of the Family Court of Schenectady County dismissing a mother’s motion to seek visitation with her child. The Family Court’s decision was based on two factors: the report of the forensic evaluator and the mother’s emotional outburst during the hearing.

In Matter of Jessica D. v Michael E., the father of a child born in 2007 was in 2008 granted full legal and physical custody based largely on the fact that the mother was struggling with drug abuse. In the same order, the mother’s visitation was suspended pending an application to reconsider such order. In 2016, the mother, who had not seen the child in several years, commenced a modification proceeding in Family Court seeking visitation with the child. A hearing was held in 2018 during which the mother was the only witness to testify. A court-appointed forensic evaluator was admitted into evidence. After the hearing the Family Court denied the mother’s request for visitation stating that it would not be in the best interests of the child. The mother appealed.

In New York courts have determined that generally it is in the best interests of a child to have a relationship with both the mother and the father. Both parents have a right to have access to their child. When making custody the decisions, taking many factors into consideration, courts seek to come up with an arrangement that gives both parents significant access to the child. A court will deny access if it determines that allowing access would place the child in risk of physical harm or serious emotional harm. In the case where a parent is battling drug addiction, has no stable place to live and no job, the court will not allow visitation as that parent would not be able to provide a safe environment for the child. However, a court will consider modifying a custody arrangement if there has been a significant change of circumstances since the original custody order.

Published on: March 30, 2020

Change of Custody to Father Not in Children’s Best Interest Despite Alienation by Mother- Matter of Eddie S. v. Sylvia S., 2020 NY Slip Op 50296(U)

by Stephen Bilkis

This case involves a “best interests” hearing that stems from a motion of the father to modify the custody arrangement giving him sole legal and physical custody of his children. It had been previously established that the mother had alienated the children from their father, and as a result, the children do not wish to have a relationship with their father.

Parent alienation occurs when one parent purposefully manipulates the child into having negative feelings toward the other parent. As a result, the child develops sad, confused, and angry feelings toward the other parent, and does not want to spend time with that parent. In Matter of Eddie S. v. Sylvia S., the father argued that the mother manipulated the children to have negative feelings toward the father. Her motivation in doing this was to satisfy her mother—the maternal grandmother of the children, on whom the mother was financially dependent. Parental alienation is frowned upon by the court. When parental alienation is proven, the Family Court often takes steps to rectify the situation by making a change in the custody arrangement. However, because parental alienation is complex, a change in custody that allows the alienated parent to spend more time with the child is not always possible and is not always in the best interests of the child.

In this case the court found that it would not be in the best interests of the children to award the father sole legal and physical custody of the children even though parent alienation was found. The court listed multiple reasons for its conclusion. First, it noted that while the mother had taken actions to alienate the children from the father, the father failed to take affirmative steps early on that would have likely neutralized the mothers efforts to alienate the children. For example, even though he had joint custody, he made little effort to enforce his parenting rights and be a part of their lives. In fact, he was unaware that the children were being homeschooled. Even when the mother took actions to interfere with visitation, the father refused to seek a contempt action against her or do anything else to asset his rights as he did not want to get her in trouble.

Published on: February 24, 2020

Finding of Permanent Neglect Warranted Where Mother Failed to Take Diligent Steps to Strengthen Parental Relationship – In re Lamani C.H., 2020 NY Slip Op 349 (N.Y. App. Div. 2020)

by Stephen Bilkis

In a child protective proceeding, the Appellate Division considered whether the mother had taken sufficient steps to be reunified with her children.

In New York , if there is evidence that a parent has abused or neglected his (or her) child, the Administration for Children’s Services (ACS) has the authority to remove the child. Even though there was a finding of neglect, the ultimate goal is always to reunify the child with his or her parent or parents. Typically this does not happen quickly. Instead, there is a process that can take many months, involving a of steps.

There are instances when reunification is not possible or is not in the best interests of the child. In such cases, the parents will permanently lose their parental rights and the children will be eligible for adoption. One way for a parent to permanently lose his (or her) parental rights is abandonment. If a parent has lost communication with the child for at least six months, then the ACS can file a petition to terminate parental rights. In instances where the child has been removed due to allegations of neglect and the parent did not follow through with steps to address the issues that led to the removal for more than one year after your children entered foster care, then the ACS can file a petition to terminate parental rights. Another reason that a parent may permanently lose parental rights is due to mental illness, mental retardation, or severe and repeated abuse.

Published on: February 24, 2020

Petitioners who Cannot Demonstrate a Sufficient Nexus To the Child Do Not Have Standing to Petition the Court for Guardianship – In re A.W.J., 2019 NY Slip Op 29328 (N.Y. Fam. Ct. 2019)

by Stephen Bilkis

A guardian of a minor is a person appointed by the court to make decisions for a child in the event that the parents are unwilling, unavailable or unfit to care for the child. While the court will typically appoint a family member or a close friend to be the guardian, according to Surrogate Court Procedure Act §1703, anyone can seek to become a guardian by petitioning Family Court. The court will then hold a hearing to determine whether the petitioner is suitable and whether the appointment would be in the best interests of the child. In the case of In re A.W.J, the Bronx County Family Court considered whether a petitioner who was a non-parent, a non-relative, and a non-caregiver had standing to petition for guardianship of a child.

The petitioner was a friend of the child who had spent some time with the child and had cared for the child a “handful” of times over the years. The court denied her petition for guardianship concluding that there was not a sufficient nexus between the her and the child for the petitioner to have standing to petition the court to become the child’s guardian.

The courts have found that in order for a person to have a sufficient nexus that is required for standing, the petitioner must have a blood, marital, caretaking, or social relationship with the child. Otherwise the person is basically a stranger. The court distinguished between people who have a friendship relationships with children versus those who have caregiving relationships. If the relationship is one of friendship, while the court would find it commendable that the person would want to become the guardian of the child, the court would likely find that the person would not have standing to seek guardianship. An example of a “friendship” relationship would be a family friend who socialized with the parents regularly and, as a result, was frequently around the children so that the children have some familiarity with that person. While this person would not be considered a stranger in the literal sense, the person would not have a close enough nexus with the child to have standing to become the child’s guardian. Citing Matter of Roland F. v. Brezenoff, 108 Misc 2d 133 (1981), the court noted that it is not enough for the person to have taken care of the child “from time to time,” or to have merely known the child for a number of years.

Published on: February 17, 2020

Grandmother Who Established Loving Relationship with Grandchild Has Standing to Bring Petition for Visitation- Of v. S.F., 61 Misc.3d 959 (N.Y. Cty. Ct. 2018)

by Stephen Bilkis

In a case that pits a grandparent against parents, the Kings County Family Court considered whether the grandmother had standing to request visitation with her grandchild. Contrary to what many believe, under New York law, grandparents do not automatically have the right to have access to their grandchildren. In fact, there are rules related to when grandparents even have the legal right to petition the court to request visitation.

Grandparents who seek to request visitation must have standing. Legal standing means that a person seeking redress in court has sufficient connection to and harm from the action challenged. Grandparents do not automatically have standing the way parents do. Under New York law grandparents have standing to seek visitation only under two conditions. The first condition is that either or both of the child’s parents must be deceased. The second condition is that circumstances must warrant equitable intervention of the court. If standing is established the court must then determine if allowing visitation is in the best interests of the child. This case only addresses the issue of standing.

In Of v. S.F. both parents of the child are alive and the child resides with them. If the grandmother has standing, it must be based on equitable circumstances. The grandmother had a close relationship with the child for several years and was involved in rearing him. She babysat the child, visited him, played with him, and attended school events for grandparents. However, the parents took issue with how the grandmother treated them in front of the child. They described her as rude, angry, abusive, and confrontational. The parents took steps to encourage the grandmother to change her behavior by talking to her, sending her emails, creating rules, and going to therapy. However, when the grandmother’s behavior did not significantly change, in December 2015 the parents barred the grandmother from further contact with the child unless she complied with their conditions, including participating in therapy. The grandmother did not comply.

Published on: February 17, 2020

Court Did Not Err in Deciding to Seek Adoption Placement for Children of Mother Struggling With Substance Abuse – In re Nevaeh L., 2019 NY Slip Op 8329 (N.Y. App. Div. 2019)

by Stephen Bilkis

In this case the Appellate Division considered whether the lower court properly concluded that the permanency goal in a child protective proceeding was to be placement for adoption instead of reunification with the mother.

When a child is removed from the care of his (or her) parents due to findings of neglect, the goal is for the agency to find a permanent solution for the child so that the child can move forward in a stable, healthy environment. Ideally that would mean that the child is reunified with one or both of his parents. The agency would create a service plan for the parent that would offer resources to help the parent address issues that led to the finding of neglect and removal of the child. For example, if, as in Nevaeh, the parent was addicted to alcohol or drugs, the agency would offer the parent resources such as treatment options and counseling. The plan would also provide programs that would help the parent with parenting skills. Typically, the agency would also work with the parent to set up a visitation schedule so that the parent had regular contact with the child.

The progress that the parent makes with the service plan would determine what the agency recommends as the permanency goal for the child. A parent who does not actively participate in the program or who does not show progress is less likely to be reunified with his child. Instead, the agency may conclude that working toward reunification with the parent is not in the best interests of the child. The agency would then consider another permanency goal such as placement with a relative or adoption. While the parent is given a significant amount of time to work on making improvements in order to regain custody of the child, at some point the agency must make a final decision as to whether reunification is possible.

Published on: February 10, 2020

When Considering A Child Support Modification the Court Will Consider Factors Other than Voluntary Job Loss – Vetrano v. Vetrano, 2019 NY Slip Op 8415 (N.Y. App. Div. 2019)

by Stephen Bilkis

In this case, upon divorce, the mother was awarded sole custody of the couple’s child and the father was ordered to pay child support. After losing his job, the father requested a reduction in child support payments. His request was denied by the Support Magistrate.

In New York the court will consider modification in child support if at least 3 years have passed since the original order, if income of either parent has changed by at least 15%, or if there has been some other change of circumstances. Family Court Act § 451(3)(b). One reason that a parent’s income would decrease is a loss of job. There have been instances in which parents have actually quit their jobs or intentionally contributed to the loss of their jobs in order to get out of paying child support. That will not work in New York. The obligation to pay child support and a child support order will not be modified if a parent job loss was due to his or her own actions. Furthermore, even if the job loss was involuntary, the parent is required to diligently seek another job. If not, then the court will not consider a modification of the child support order and in will be imputed.

In Vetrano v. Vetrano, the father petitioned the court for a downward modification, alleging that he was wrongfully terminated from his job and that he was not able to find comparable employment. As a result, his income decreased more than 15% from the date of the original child support order, which was more than three years ago. In addition, the father alleged that the mother’s income had increased by more than 15%. On its face, the father’s petition presented a prima facie case of changed circumstances such that a downward modification in child support was warranted. However, the Support Magistrate dismissed the father’s petition concluding that the father had not shown that the loss of his job was not his own fault and that he had been diligently searching for a new job. When the Family Court denied the father’s objections to the Support Magistrate’s decision, the father appealed to the Supreme Court.