New York Family Law Blog

Published on: October 20, 2024

Presumption that husband is the father of a child of marriage is difficult to rebut. L.A.S. v. P.M.M.S., 2023 N.Y. Slip Op. 50845 (N.Y. Sup. Ct. 2023)

by Stephen Bilkis

In matters of family law, the presumption that a child born during a marriage is the biological child of the married couple has long been a central issue in paternity disputes. This presumption can be rebutted, but it requires clear and convincing evidence. In a recent case before the Queens County Supreme Court, the court examined the plaintiff’s attempt to challenge the presumption of legitimacy and request a DNA test to determine paternity.

Background Facts

The case involved a married couple, the plaintiff and the defendant, who had a child together in 2019. In 2022, three years after the child was born, the plaintiff filed a verified complaint seeking custody of the child. The complaint did not initially raise any issue regarding the child’s paternity, nor did it contain any request for a paternity test. Instead, the plaintiff acknowledged the child as being born of the marriage.

Published on: October 20, 2024

Order of protection deemed reasonably necessary based on appellant’s family offenses. Monos v. Monos, 123 A.D.3d 931 (N.Y. App. Div. 2014)

by Stephen Bilkis

In family law, an order of protection can serve as a legal tool to prevent harm and ensure the safety of individuals involved in domestic disputes. These disputes often arise out of family offenses, which are specific criminal acts that occur between people who share a family or household relationship. A family offense includes actions such as assault, harassment, stalking, menacing, and other harmful behaviors that place a victim at risk of physical or emotional harm. In the case of Monos v. Monos, 123 A.D.3d 931 (N.Y. App. Div. 2014), the Appellate Division considered an appeal from an order of protection issued by the Family Court in Queens County.

Background Facts

The case involved a petitioner who sought an order of protection against the appellant in Family Court. The petitioner alleged that the appellant committed several family offenses, including criminal mischief, reckless endangerment, and attempted assault. Specifically, the petitioner claimed that the appellant had threatened her with a fork during an altercation. Based on this conduct, the petitioner requested the court to issue an order of protection, directing the appellant to stay away from her for a specified period.

Published on: October 17, 2024

New York court modified maintenance and equitable distribution from a foreign divorce judgment. Sufia v. Khalique, 189 A.D.3d 1499 (N.Y. App. Div. 2020)

by Stephen Bilkis

When a divorce occurs in another country, New York courts can address unresolved issues such as property division, child support, and spousal maintenance. Foreign divorce judgments are generally recognized under New York law if they comply with due process and do not violate public policy. However, New York courts can independently adjudicate ancillary matters not addressed in the foreign judgment. Parties may file actions in New York to resolve these issues, following domestic legal standards such as equitable distribution and child support guidelines.

Sufia v. Khalique, 189 A.D.3d 1499 (N.Y. App. Div. 2020) involved a matrimonial action concerning the equitable distribution of marital property, child support, and maintenance following a divorce granted in Bangladesh. The judgment, rendered by the Supreme Court, Queens County, addressed these issues after a nonjury trial. The defendant appealed the judgment, challenging its provisions.

Background Facts

Published on: October 15, 2024

Court adjusted asset distribution by rejecting a $550,000 dissipation claim for a car wash purchase. Kirshner v. Kirshner, 2024 N.Y. Slip Op. 3475 (N.Y. App. Div. 2024)

by Stephen Bilkis

Dissipation of marital assets refers to the wasteful, reckless, or intentional use of marital funds for purposes unrelated to the marriage, often occurring during or shortly before divorce proceedings. Examples include excessive spending, gambling, or transferring assets to conceal them. In New York, the spouse alleging dissipation must prove it by showing that the other spouse’s actions diminished marital property unjustifiably. Courts evaluate the intent and circumstances, distinguishing between poor financial outcomes and reckless behavior. Dissipation claims can significantly affect equitable distribution, as courts may compensate the wronged spouse by adjusting the division of remaining marital assets.

Background Facts

The couple, married in 2001, had three children and signed a prenuptial agreement before marriage. During the marriage, the defendant used marital funds to purchase a car wash. The plaintiff later argued that this investment was a wasteful dissipation of marital assets, claiming it was a poor financial decision and made without proper justification. The defendant contended the car wash was intended to generate income for the family and provide a workplace for the plaintiff after his release from prison.

Published on: October 10, 2024

Court finds that cohabitation is enough to terminate spousal maintenance payments. Sanseri v. Sanseri, 2015 N.Y. Slip Op. 25128 (N.Y. Sup. Ct. 2015)

by Stephen Bilkis

In Sanseri v. Sanseri, 2015 N.Y. Slip Op. 25128 (N.Y. Sup. Ct. 2015), the Supreme Court, Monroe County, addressed the termination of spousal maintenance payments, specifically revisiting the standards for terminating maintenance in the absence of remarriage. The issue arose under Section 248 of the Domestic Relations Law (DRL), a provision that outlines when maintenance payments can be modified or terminated. The court had to determine whether a former spouse cohabitating with another person, but not remarried, could be grounds for terminating maintenance.

Background Facts

In this case, the husband and wife were in the process of a divorce, with maintenance payments ordered at the outset due to a significant disparity in their incomes. While the divorce proceedings continued, the husband filed a motion to terminate the maintenance payments. He argued that his wife, though not remarried, had entered into a relationship with another man and had engaged in behaviors that were akin to a marriage.

Published on: October 7, 2024

Family Court, Kings County considered whether it had jurisdiction over a visitation case. R.L.BXXXXX v. C.D.GXXX (In re Custody of R.L.BXXXXX), 2019 N.Y. Slip Op. 29090 (N.Y. Fam. Ct. 2019)

by Stephen Bilkis

A Final Order of Visitation (FOV) in New York is a legal document issued by the court that establishes the specific rights of a non-custodial parent or other party to have visitation with a child. This order outlines the schedule, duration, and conditions under which visitation will occur, aiming to ensure that the child maintains a meaningful relationship with the non-custodial parent while considering the child’s best interests.

The FOV may include details such as the days, times, and locations for visitation, as well as provisions for holidays, vacations, and special occasions. It may also address transportation arrangements and communication between the parties during visitation periods.

Once issued, the FOV is legally binding, and both parties are expected to comply with its terms. Failure to adhere to the FOV can result in legal consequences, including enforcement actions or modifications of the visitation arrangements by the court.

Published on: October 5, 2024

While wife may not have car, court found no evidence of cruel and inhuman treatment in marriage. D.A. v. B.E., 2005 N.Y. Slip Op. 50281 (N.Y. Sup. Ct. 2005)

by Stephen Bilkis

In D.A. v. B.E., 2005 N.Y. Slip Op. 50281 (N.Y. Sup. Ct. 2005), the D.A. sought a divorce from his wife, B.E.A., under Domestic Relations Law Section 170(1) based on claims of cruel and inhuman treatment. The couple had been married since 2001, and D.A. argued that his wife’s lack of care for his deteriorating health endangered his well-being. The court had to decide whether the evidence provided was enough to grant the divorce on these grounds.

Background Facts

D.A. and B.E.A. were married on June 21, 2001, though they had lived together for several years prior to that date. At the time of the marriage, D.A. was already suffering from asbestosis. Over time, his health worsened. By 2003, he had been diagnosed with emphysema, and later that year, he underwent surgery for lung cancer, which required the removal of one of his lungs. His medical condition left him in chronic pain, requiring continuous pain management, including Percocet and, eventually, morphine.

Published on: October 5, 2024

Grandparents denied custody where foster parents sought to adopt. Carter v. Admin. for Children’s Servs., 176 A.D.3d 696 (N.Y. App. Div. 2019)

by Stephen Bilkis

When parents lose custody of their children, the goal of the Administration for Children’s Services (ACS) is always to permanently place the children in stable family environment. While reunification with bio parents is the best case scenario, adoption is also a positive outcome. Carter v. Admin. for Children’s Servs., 176 A.D.3d 696 (N.Y. App. Div. 2019) involves a custody dispute concerning a child removed from his mother’s care after her arrest. The maternal grandparents, residing in Maine, sought custody of the child, but their petition was dismissed after the mother surrendered her parental rights. The child was then placed for adoption with a foster family.

Background Facts

In January 2016, ACS removed a seven-month-old child from his mother’s care following her arrest for prostitution and child endangerment. After the removal, the child was placed in a nonkinship foster family. The mother faced a neglect proceeding in Family Court, which resulted in a finding of neglect against her. The finding was entered without her admission of neglect but with her consent.

Published on: October 5, 2024

Court terminated the father’s parental rights, citing mental illness and permanent neglect. In re William L., 2021 N.Y. Slip Op. 3838 (N.Y. App. Div. 2021)

by Stephen Bilkis

This case involved the termination of a father’s parental rights to his three children, William, Hailey, and Amanda, under Social Services Law § 384-b. The Family Court found that the father was unable to care for the children due to mental illness and had permanently neglected them. The court transferred custody and guardianship of two of the children to the Commissioner of Social Services and the foster mother for adoption. The father appealed the decision, and the Appellate Division affirmed the Family Court’s findings and orders.

Background Facts

The father had three children: William, born in 2004; Hailey, born in 2005; and Amanda, born in 2011. In 2009, William and Hailey were removed from their parents’ care and placed with their paternal grandmother due to concerns about their safety. Amanda, born later, was placed with the grandmother in 2012. During this time, the grandmother allowed the father to have unsupervised contact with the children in violation of existing orders of protection. This led to the removal of all three children from the grandmother’s custody in 2012, and they were placed with a foster mother.

Published on: October 4, 2024

Separation agreement is enforceable only if it involved full financial disclosure. S.M.S. Kabir v. Kabir, 85 A.D.3d 1127 (N.Y. App. Div. 2011)

by Stephen Bilkis

In New York, separation are agreements are enforceable, but only if certain conditions are met. One of those conditions is that both parties must make full financial disclosures, including all of their assets. The case of S.M.S. Kabir v. Kabir, 85 A.D.3d 1127 (N.Y. App. Div. 2011) involves a dispute over the validity of a separation agreement between a husband and wife. The wife sought to set aside the agreement, claiming that it was not fairly negotiated and that key financial information had been withheld by the husband.

Background Facts

The parties were married and later entered into a separation agreement on July 11, 2007. The wife later claimed that the agreement was unfair because the husband had allegedly concealed several assets during the negotiation. She stated that she did not discover these concealed assets until 2009, two years after the separation agreement had been signed.