New York Family Law Blog

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.

Published on: November 8, 2019

Grandmother Requests Visitation Rights – E.S. v. P.D., 863 N.E.2d 100 (N.Y. 2007)

by Stephen Bilkis

In this appeals court case, the court considered whether the Supreme Court properly awarded a grandmother visitation rights with her grandson pursuant to New York Domestic Relations Law § 72(1).

Under New York’s Domestic Relations Law, when a grandparent seeks visitation, the court must first determine whether the grandparent has standing to seek visitation. In order for the grandparent to have standing, either or both of the child’s parents must be deceased, or the circumstances must warrant equitable intervention of the court. If standing is established, then it is up to the grandparent to establish why visitation is in the best interests of the child.

The court will look at a number of factors in determining whether grandparent visitation is appropriate. For example, the court will consider the relationship between the grandparent and the child and will weigh heavily a close relationship.

Published on: November 8, 2019

Court Denies Petition to Set Aside an Acknowledgment of Paternity – Merritt v. Allen, 99 A.D.3d 1006 (N.Y. App. Div. 2012)

by Stephen Bilkis

In this case the court was asked to set aside an acknowledgement of paternity, direct a paternity test, and discontinue child support payments. The mother responded by filing a motion to dismiss the petition. Not surprisingly, the court denied the petitioner’s request and granted the mother’s motion to dismiss.

Typically establishing paternity is only an issue if the child is born to unmarried parents. If the parents are married when the child is born, the husband of the mother is deemed the legal father of the child. This is the case even if there is reason to suspect that another man is the biological father. If the parents are not married, there are a few ways to establish paternity. One way is to get a DNA test which will indicate whether or not a man is the biological father of the child. Another way is for both parents to sign a document called an “Acknowledgement of Paternity.” The form requires that the parents agree on the paternity of the child. There is not requirement that the parents take a DNA test to confirm paternity. Thus, if there is a question about paternity, it is a good idea to get a DNA test and to not simply sign an Acknowledgement of Paternity.

Once an Acknowledgement of Paternity is signed and filed, it is legally binding. The father will have both the legal rights and obligations of a father, including the obligation of paying child support until the child is emancipated. The father will also have the right to seek custody or visitation. This is the case regardless of whether or not the man who signs the form is actually the biological father. Once paternity is established through the Acknowledge of Paternity form and child support established, it is very difficult to reverse. New York has an interest in ensuring that children are cared for. It is in the best interest of a child to have two parents financially responsible for raising the child and to have two parents emotionally care for the child. Thus, once a man comes forward and acknowledges that he is a child’s father and starts to pay child support, the court is reluctant to reverse it.

Published on: October 8, 2019

Court Will Suspend Visitation Where It Has Been Detrimental to the Child’s Mental State – Lupo v. Rainsford, 162 A.D.3d 1032 (N.Y. App. Div. 2018)

by Stephen Bilkis

In this case a father appealed a decision of the Family Court to suspend his visitation. The original custody order followed the parents’ divorce. The father was granted visitation. The order was later modified requiring that the father’s parental access had to occur in a public place. The mother again petitioned the court to modify the custody order, further restricting the father’s access to the child. The Family Court granted the mother’s petition and suspended the father’s access altogether. The father appealed.

When the Family Court issues a final custody order, it will only change it if the circumstances have significantly changed, as a custody order is issued only after the court has carefully considered substantial testimony and evidence. Often there is testimony from medical professionals. When appropriate the child will testify and give his or her preference. The goal of Family Court is always to facilitate healthy relationships between the child and both parents, and works with both parents to make sure that they each get to spend a significant amount f time with the child. However, each case is different. Ultimately, the child court will take all of the information presented and make a custody decision based on what is in the best interests of the child. In some cases that may mean that it is necessary to modify the order so that the visitation is restricted.

Circumstances that would warrant a change to a custody order include a change in the lifestyle of the household, such as a new job that requires the parent to be absent often. Substance abuse or violence in the household would require a modification as it is not in the best interests of the child to be in a dangerous environment. If a parent experiences physical or mental health problems such that he or she would have difficulties caring for the child or such that the child would be in danger, the court would consider modifying the custody order. Of course, the court will consider the preference of the child, particularly when the child gets older.

Published on: October 8, 2019

Right of Biological Mother to Seek Custody of Children She Surrendered – Beverly L. v. James H. (In re Custody/Visitation Proceeding), 2016 NY Slip Op 26243 (N.Y. Fam. Ct. 2016)

by Stephen Bilkis

The issue before the court is whether a parent who adopted out her children had the right to seek custody of them upon learning that the children were being sexually abused by the adoptive father.

The petitioner voluntarily surrendered her parental rights to her three children, 2 daughters and a son. As part of the post-surrender agreement, the mother retained the right to visit with the children, and she did so regularly. The three children were subsequently adopted. A few years after the adoption, Biological Mother found out that the children were not living in a safe environment. One of her daughters was being sexually abused by Adoptive Father. The other daughter was being sexually abused by an unrelated person. The son was being bullied in the adoptive home. In response, Biological Mother sought custody of the children. Adoptive Father admitted that he sexually abused one of the daughters and was in jail. Adoptive Mother filed a motion opposing Biological Mother’s petition, arguing that she had no standing to file for custody. Adoptive Mother also stated that she wanted to keep the children and that she was divorcing the adoptive father. In addition, the attorney representing the children opposed Biological Mother’s petition for custody.

The question before the court is whether a biological mother who previously surrendered her children has standing to bring an Article 6 custody petition against the children’s adoptive parents in a case where the adoptive father has admitted to sexually abusing one of the children.

Published on: September 9, 2019

Grandmother Brings Motion for Visitation to New York Courts

by Stephen Bilkis

D.E. v S.F. & T.E.

The motion to dismiss for lack of standing filed by the defendants, and dismissal of visitation rights filed by the plaintiff are denied. The plaintiff’s cross motion is granted in part and denied in part.

In February of 2018, the petitioner who lives in Nassau County filed a Visitation Petition in Nassau Family Court seeking visitation rights of her grandson. The matter was transferred to Kings Family Court in March of 2018, because the child lives in Brooklyn with his parents.

Published on: June 25, 2019

Mother Appeals Judgment Denying Full Legal Custody

by Stephen Bilkis

Matter of T v C

Decision

Pursuant to the Family Court Act, Article 6, a mother appeals from a Family Court order dated 1/10/18. The order granted the father’s petition for sole physical and legal custody, and awarded the other partial access, but denied her sole custody.

Published on: May 17, 2019

Couple Get into Custody Dispute Due International Travel, New York Appellate Court Affirms Supreme Court Decision

by Stephen Bilkis

C vs C

This case was filed for divorce and ancillary relief. The defendant appeals a prior judgment dated March 24, 2014. In that decision, the order denied the defendant’s cross-motion which was to use one-third of the child’s time spent in Israel visiting with the paternal grandmother. The prior decision also denied without prejudice the portion of the cross-motion which ordered visitation with the paternal grandmother when she was in the U.S.

This court affirms.

Published on: April 24, 2019

Party Seeks Credit of Child Support for Education Expenses

by Stephen Bilkis

KG v G

NY Slip Op 04278

Pursuant to Section 50011 of the Rules, this case was affirmed with costs. Much like the appellate opinion and in consideration of a substantial downward departure from support set out in the Child Support Standards Act, this court can’t say the Supreme Court was in error. Before incorporating the party’s agreement into a judgement, it addressed the provision in question in the framework of a larger agreement and each of the party’s respective finances in a way that secured adequate child support for each child, as the parties originally intended (Domestic Relations Law 240 (1-b[h]). Judges Difiore, Fahey, Rivera, Wilson and Feinman concur. Judge Stien offered his dissent and Judge Garcia agrees.