New York Family Law Blog

Published on: November 19, 2024

ppellate Division upheld child support and maintenance modifications due to procedural default and emancipation. Feldman v. Feldman, 185 A.D.3d 552 (N.Y. App. Div. 2020)

by Stephen Bilkis

This case centered on a post-divorce dispute involving modifications to child support and maintenance obligations. The plaintiff appealed orders and judgments that adjusted the defendant’s financial responsibilities, arguing against the decisions rendered by the Supreme Court, Kings County. The appeals revolved around procedural defaults, the emancipation of the parties’ child, and the modification of financial obligations.

Procedural default occurs when a party fails to follow legal procedures required in a case, such as appearing in court or filing necessary documents within specified deadlines. In legal matters, this failure can result in significant consequences, including the dismissal of appeals or claims. Courts view procedural default as forfeiting the right to contest certain decisions. To address a procedural default, the party must typically file a motion to vacate the default and provide a valid reason for the failure. Courts often emphasize strict adherence to procedural rules to ensure fairness and efficiency in the judicial process.

Background Facts

Published on: November 17, 2024

Appellate Division affirmed sole custody to the mother due to deteriorated co-parenting and father’s limited involvement. Connell-Charleus v. Charleus, 140 N.Y.S.3d 752 (N.Y. App. Div. 2021)

by Stephen Bilkis

In a case concerning the custody of a minor child, the Family Court of Kings County addressed a petition to modify the custody arrangement outlined in a Florida judgment of divorce. The court considered whether a change in circumstances warranted granting the mother sole legal and physical custody of the child.

The mother and father married in 2010 and had a child in 2015. Their marriage ended in 2016 when a Florida court issued a judgment of divorce. The judgment incorporated a settlement agreement and a parenting plan granting the parents joint custody of the child. The father, who lived in Toronto, was entitled to overnight parenting time from Thursday to Sunday every other week and during vacations. The mother, residing in Brooklyn, was the primary day-to-day caregiver.

The agreement also required the parents to participate in co-parenting counseling for 18 months to facilitate joint decision-making. However, their relationship, which was strained at the time of the agreement, deteriorated further. By 2017, the mother registered the Florida judgment in New York and petitioned the Family Court in Kings County to modify custody, seeking sole legal and physical custody of the child.

Published on: November 15, 2024

Court restricted a father’s social media posts to protect child’s privacy and family relationships. Walsh v. Russell, 214 A.D.3d 890 (N.Y. App. Div. 2023)

by Stephen Bilkis

This case involved a dispute between parents over custody of their child, which led to additional issues related to the father’s use of social media. The Family Court addressed concerns raised by the mother and the attorney for the child (AFC) regarding the father’s social media activity, which included sharing details about the custody proceedings and disparaging the mother and her family.

The mother sought sole legal and physical custody, while the father engaged in public commentary about the case on social media platforms. The father allegedly posted blogs and images of the child, as well as statements criticizing the mother and her family. The attorney for the child filed a motion requesting that the court prohibit the father from continuing these activities, arguing that they were not in the child’s best interests. The motion also sought an order directing the father to delete all existing content related to the case. The father did not oppose the motion or appear at the related hearing. The Family Court granted the motion and ordered the father to refrain from posting about the case or the mother’s family and to delete any existing related content. The father appealed, arguing that the restrictions were overly broad and violated his First Amendment rights.

Question Before the Court

Published on: November 13, 2024

Olga P. v. Ioannis Y. 182 A.D.3d 447 (N.Y. App. Div. 2020)

by Stephen Bilkis

Navigating the complexities of family law, especially during a marital dissolution involving custody, support, and family offenses, requires a deep understanding of legal procedures and judicial discretion. In a series of decisions spanning from late 2018 to mid-2019 by various judges and courts in New York County, a marital dispute involving these issues provides a profound illustration of the intricacies of family and supreme court interactions.

Background Facts

On November 27, 2018the Supreme Court of New York County appointed a guardian ad litem for the wife , recognizing her deteriorating mental health which compromised her capacity to engage effectively in her legal defense and proceedings. This appointment was pivotal, given the wife’s previously demonstrated difficulties in managing the discovery process, which led to the necessity of supervised discovery overseen by a Special Referee.

Published on: November 13, 2024

Calculating spousal maintenance. AW v PW 2022 NY Slip Op 51177(U)

by Stephen Bilkis

In AW v PW, 2022 NY Slip Op 51177(U) the court was tasked with determining spousal support and child support amounts pendente lite, amidst a divorce proceeding initiated by the Plaintiff in December 2020.

“Pendente lite” is a Latin term meaning “pending the litigation.” Pendente lite spousal and child support refer to temporary financial support orders issued by a court during the course of divorce or family law proceedings. When determining temporary support in New York, courts consider several factors, including each party’s income and financial resources, the marital standard of living, the needs of the children, and any exceptional expenses. They also review financial affidavits detailing both spouses’ incomes, expenses, assets, and liabilities. The goal is to maintain the status quo and prevent financial hardship for the lower-income spouse and children pending the final resolution of the divorce proceedings.

Background Facts

Published on: November 11, 2024

Appellate Division applies the Indian Child Welfare Act to a custody matter. Suffolk Cnty. Dep’t of Soc. Servs. v. Samantha Q. (In re Dupree M.)

by Stephen Bilkis

The Indian Child Welfare Act (ICWA) of 1978 is a federal law designed to protect the best interests of Native American children and preserve the stability and security of Indian tribes and families. While originally enacted to address the alarming rate of Native American children being removed from their families by nontribal agencies, the ICWA has broader implications for child custody matters, including those in New York.

In New York, the ICWA applies not only to federally recognized tribes but also to tribes recognized by the state. This recognition expands the jurisdictional reach of the ICWA, ensuring that Native American children and families in New York receive the law’s protections. The ICWA establishes minimum federal standards for the removal of Indian children from their families and placement in foster care or adoptive homes that reflect the unique values of Indian culture.

One of the key provisions of the ICWA is its jurisdictional framework, which governs where child custody proceedings involving Native American children should take place. Under the ICWA, tribes have exclusive jurisdiction over such proceedings when the child resides or is domiciled within the tribe’s reservation. However, in cases where the child is not domiciled on the reservation, the ICWA creates concurrent jurisdiction, with a presumption in favor of tribal jurisdiction.

Published on: November 11, 2024

Father incarcerated for willful failure to pay child support. Atkinson v. Atkinson, 181 A.D.3d 590 (N.Y. App. Div. 2020)

by Stephen Bilkis

Under New York law, incarceration is a possible consequence for the willful nonpayment of child support. This punitive measure is considered a last resort and is typically employed when all other enforcement methods have failed to compel compliance with support obligations. The legal framework governing this area is outlined in the Family Court Act (FCA), particularly in sections that address the enforcement of child support orders.

Section 454 of the FCA stipulates that failing to pay child support as ordered by the court constitutes prima facie evidence of willful violation. Once the custodial parent or guardian establishes that the non-custodial parent has not paid support as directed, the burden shifts to the latter to prove their inability to pay. The non-custodial parent must provide credible evidence, such as detailed financial statements or medical documentation, to demonstrate that their non-compliance was not willful but rather due to circumstances beyond their control.

If the court finds the nonpayment to be willful, section 455 of the FCA allows for various penalties, including incarceration. The decision to incarcerate hinges on the non-custodial parent’s continued defiance of the court order without just cause, reflecting the legal system’s commitment to ensuring that child support obligations are taken seriously and that children receive the financial support they are legally entitled to.

Published on: November 7, 2024

Family Court Finds Sexual Abuse and Derivative Neglect of Children. Nassau Cnty. Dep’t of Soc. Servs. v. George R. (In re Alexandria F.), 2018 N.Y. Slip Op. 7122 (N.Y. App. Div. 2018

by Stephen Bilkis

In family law cases, the welfare of children is always the priority, especially in cases involving abuse or neglect. This case involving George R. and Adalila R.-S. involves issues of abuse, derivative neglect, custody, and access. The Family Court in Nassau County made multiple findings, which were later modified by the appellate court.

Background Facts

This case involved three children: Alexandria F., Adalila R., and George W. R. George R. was the biological father of the younger two children, but not Alexandria F., who was the child of the mother and another man, John F. The children lived with the mother and George R.

Published on: November 6, 2024

Court found abuse, neglect, and derivative neglect of multiple children. Orange Cnty. Dep’t of Soc. Servs. v. Al Quran F. (In re Kristina I.), 2018 N.Y. Slip Op. 5041 (N.Y. App. Div. 2018)

by Stephen Bilkis

In Orange Cnty. Dep’t of Soc. Servs. v. Al Quran F., the Family Court, Orange County, reviewed allegations of abuse and neglect involving Al Quran F., a person legally responsible for multiple children in his household. The court examined claims of direct abuse and neglect against one child, Kristina I., and derivative abuse and neglect involving 12 other children. The court’s findings and subsequent rulings highlighted the standards under Family Court Act article 10 and the implications for parental responsibility.

Background Facts

The case began when the petitioner initiated proceedings under Family Court Act article 10. The allegations centered on Al Quran F.’s actions toward Kristina I., specifically sexual abuse, which the petitioner argued constituted both abuse and neglect. Additionally, the petitioner contended that this behavior indicated a lack of parental judgment and understanding, affecting the well-being of the other 12 children living in the same household. These children included Akilah F., Al Quran F., Izaiah F., La’Rai F., Alana I., Christopher I., Briana M., Angelica I., Olivia F., Jaiden P., Elias P. F., and Syris P. F.

Published on: November 4, 2024

Court upheld mother’s increased visitation. Hendershot v. Hendershot, 187 A.D.3d 1584 (N.Y. App. Div. 2020)

by Stephen Bilkis

In Hendershot v. Hendershot, 187 A.D.3d 1584 (N.Y. App. Div. 2020), a father appealed against a court order that increased the mother’s visitation rights with their children. Under New York law, in order for there to be a custody modification, there must be a change in circumstances.

A “change in circumstances” refers to significant alterations in the living situation, health, or welfare of a child or parent that impacts a child custody arrangement established by a previous court order. This change must be substantial enough to justify reevaluating the custody or visitation terms to ensure they continue to serve the best interests of the child. Common examples include relocation, changes in a parent’s lifestyle or health, alterations in the child’s needs or preferences, or any developments that materially affect the parent’s ability to provide a stable and supportive environment for the child.

Background Facts