New York Family Law Blog

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.

Published on: October 3, 2024

Court vacated final order of protection after determining that the absence of respondent at hearing was not willful. Muhammadu v. Barcia, 100 A.D.3d 904 (N.Y. App. Div. 2012)

by Stephen Bilkis

In hearings regarding orders of protection, if one party does not show up and does not provide an explanation, the court will typically issue a default order against that absent party. In the case of Troy Barcia in Muhammadu v. Barcia, 100 A.D.3d 904 (N.Y. App. Div. 2012), the issue before the court centered on a default final order of protection that was issued and whether there was substantive evidence to support the order.

Background Facts

On August 8, 2011, a family offense petition was filed against Troy Barcia. The petitioner alleged multiple offenses, including attempted assault, assault in the second or third degree, aggravated harassment, harassment, menacing, sexual abuse, and forcible touching. The Family Court responded to the allegations by issuing a temporary order of protection that was to remain in effect until August 15, 2011.

Published on: October 2, 2024

Appellate Division found that injuries are not required to meet criminal definition of serious physical injury to be considered child abuse. Admin. for Children’s Servs. v. Ferida B. (In re Jonah B.), 85 N.Y.S.3d 505 (N.Y. App. Div. 2018)

by Stephen Bilkis

This case involved three related child abuse and neglect proceedings under the Family Court Act, Article 10, in Queens County, New York. The Administration for Children’s Services (ACS) filed allegations against the parents and maternal grandmother of a child named Talia. The Family Court, after a fact-finding hearing, dismissed allegations of abuse and derivative abuse. ACS and the children appealed, arguing that the court erred in not finding abuse.

Background Facts

In April 2014, ACS began two child abuse and neglect proceedings against the mother, father, maternal grandmother, and paternal grandmother. The allegations centered on the care of the child Talia, who was four months old at the time. Talia was taken to the hospital on April 7, 2014, where doctors diagnosed her with multiple injuries, including rib fractures, fractures in both legs, and a fracture in her right arm. The injuries occurred between her birth on December 5, 2013, and April 7, 2014. ACS claimed these injuries were not accidental and were inflicted while Talia was in the care of her parents and grandmothers. ACS also argued that Jonah, Talia’s sibling, was derivatively abused.

Published on: October 1, 2024

Mother found to have abused child, even though multiple caregivers were present around the time of the injuries. Admin. for Children’s Servs. v. Allison B. (In re Dall. P.), 185 A.D.3d 589 (N.Y. App. Div. 2020)

by Stephen Bilkis

When it comes to abuse of children, the courts look at not only the person who was accursed of inflicting the abuse, but also any individuals who were caring for the child around the time that the abuse occurred. Admin. for Children’s Servs. v. Allison B. (In re Dall. P.), 185 A.D.3d 589 (N.Y. App. Div. 2020) involved serious injuries to a two-year-old child and raised questions about the responsibilities and actions of caregivers. The court had to determine whether the mother could be held responsible for her child’s injuries based on the evidence presented during the fact-finding hearing.

Background Facts

The case began when the mother and her boyfriend brought the mother’s two-year-old son, Dallas P., to Jamaica Hospital on August 22, 2015. Dallas had a ruptured bowel that required emergency surgery. The Administration for Children’s Services (ACS) initiated legal proceedings under Family Court Act Article 10, alleging that the mother had abused the child. During the fact-finding hearing, the court heard from several witnesses, including medical professionals. Dr. Edmond Kessler, the treating pediatric surgeon, testified that faint bruises were observed on the child and that the only reasonable explanation for the injury was a single, high-velocity traumatic event. Dr. Kessler also indicated that the injury occurred within 6 to 24 hours before Dallas was admitted to the hospital.