New York Family Law Blog

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.

Published on: February 10, 2020

Supreme Court of Monroe County Reviewed a Case Involving Parental Alienation – J.F. v. D.F., 2018 NY Slip Op 51829(U) (N.Y. Sup. Ct. 2018)

by Stephen Bilkis

In this case, the Supreme Court considered whether a parent’s actions amounted to parental alienation such that a custody modification was warranted.

It has been well-established that generally it is in the best interests of the children for them to have positive relationships with both parents. Ideally, despite their romantic relationship ending, parents will work toward fostering a good co-parenting relationship and support each other in efforts to maintain good relationships with the children. This does not always happen.

Parental alienation occurs when one parent intentionally manipulates the child into having negative feelings toward the other parent. This is often accomplished by saying negative things to the child about the other parent or manipulating circumstances so the other parent looks bad in the child’s eyes. For example, the noncustodial parent may need to reschedule time with the child. Instead of simply working with the noncustodial parent to reschedule and supporting him or her in that effort, the manipulating custodial parent refuses to reschedule and tells the child that the noncustodial parent does not make visitation a priority. If the custodial parent continues to speak negatively about the noncustodial parent, the child may start to harbor negative feels toward the noncustodial parent and as a result refuse to see the noncustodial parent.

Published on: February 3, 2020

Appellate Division Considered a Case Involving International Visitation- Fernandez v. Pulla, 2019 NY Slip Op 7068 (N.Y. App. Div. 2019)

by Stephen Bilkis

Cases involving international visitation have many challenges. The parents must have the finances to pay for visitation travel. Travel logistics must be worked out. The parents or others who will accompany the child must have the legal ability to travel internationally. Also, in some instances there are concerns related to whether the parent requesting international visitation would return the child to the United States. Here the Appellate Division considered a case in which the mother requested visitation with her child in Madrid, Spain, while the father preferred that she have access to the child in Ecuador, South America.

Each parent filed a petition with Family Court for custody of the child. The mother then withdrew her petition because she was moving to Madrid where she had family. Instead, she petitioned the court for visitation with the child. The father was granted sole legal and physical custody. The father proposed that the mother have visitation in Ecuador where the mother was born and where the maternal grandmother lived. He also stated that the child’s paternal grandmother travel with the child to and from Ecuador for the visitation. The mother responded that she wanted visitation in Madrid. She indicated that while she would not legally be able to travel to the United States to pick up the child, she had family members who would be willng to bring the child to and from Madrid. The father expressed concerns about the arrangements related to the child traveling to Madrid. Family Court sided with the father and awarded the mother visitation in Ecuador. The mother appealed.

In reviewing the Family Court’s decision, the Appellate Division considered a number of factors. First, the court considered the logistics involved in getting the child to and from Madrid for the visitation. The court had concerns with the people who would accompany the child. Even though they were members of the child’s family they had never met the child. In addition, the individuals who the mother said would be responsible for accompanying the child to and from Madrid were not sure if they would be able to obtain visas to travel to the United States. On the other hand, if the visitation occurred in Ecuador, the paternal grandmother would be willing to accompany the child to and from Ecuador, and there was not a question as to whether the she would be able to travel to and from Ecuador.

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.