New York Family Law Blog

Published on: July 1, 2024

Determining jurisdiction over a custody case. Montanez v. Tompkinson, 167 A.D.3d 616 (N.Y. App. Div. 2018)

by Stephen Bilkis

Jurisdiction over a custody decision is typically determined based on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) guidelines, which prioritize the child’s “home state” as the primary jurisdiction for custody matters. The “home state” is defined as the state where the child has resided with a parent or guardian for a continuous period of at least six months prior to the custody proceeding’s initiation. If the child has no “home state” or if there is a dispute regarding jurisdiction, other factors such as significant connections with the state and substantial evidence relating to the child’s care, protection, training, and personal relationships are considered.

Additionally, courts may decline jurisdiction if it is determined to be an inconvenient forum and another state is deemed more appropriate based on factors such as the child’s connections to each state, the location of evidence and witnesses, and the parties’ ability to present their case effectively. Ultimately, the overarching goal is to ensure that custody decisions are made in the jurisdiction that can best serve the child’s interests and welfare.

Background Facts

Published on: June 26, 2024

Court modified the order for supervised visitation for practical reasons. D.T. v. C.T. 215 A.D.3d 1232 (N.Y. App. Div. 2023)

by Stephen Bilkis

Background Facts

In July 2021, the Family Court of Onondaga County awarded the petitioner, the father, sole legal and primary physical custody of the children involved. Additionally, it provided the mother with supervised visitation rights, stipulating that the specifics of these visitations be mutually agreed upon by both parents. This decision was subsequently appealed by the mother, who contested several aspects of the ruling.

The mother’s appeal focused on issues relate to the process of service of the notice of appeal, the admission of certain evidence, and the terms of her visitation rights. Particularly contentious were the admission of text message screenshots between the mother and the children, and a recorded conversation, which she argued contained inadmissible hearsay. Moreover, the mother challenged the representation by the attorney for the children (AFC), claiming an improper substitution of judgment regarding the children’s wishes, which she believed conflicted with their best interests

Published on: June 24, 2024

Husband challenges Support Magistrate’s order to pay spousal support. Young v. Young, 186 A.D.3d 719 (N.Y. App. Div. 2020

by Stephen Bilkis

In Young v. Young, 186 A.D.3d 719 (N.Y. App. Div. 2020, the Appellate Division consider a case where a husband challenges having to pay his spouse support.

In New York, the Family Court determines spousal support during divorce proceedings by carefully considering various factors related to the financial circumstances of both parties. The court follows a discretionary standard outlined in the relevant statute, typically Family Court Act § 412. This statute mandates that a married person is responsible for supporting their spouse, and the court has the authority to determine a fair and reasonable amount based on the respective circumstances of each party.

Key factors considered by the court include the duration of the marriage, the financial means of both spouses, and each party’s need to maintain a suitable standard of living post-divorce. The court assesses the payor spouse’s ability to provide support while still meeting their own financial obligations. Similarly, it evaluates the payee spouse’s need for financial assistance and their capacity to become self-supporting in the future.

Published on: June 19, 2024

Challenging an acknowledgment of paternity beyond the statutory deadline. Daniel FF. v. Alicia GG., 207 A.D.3d 853 (N.Y. App. Div. 2022)

by Stephen Bilkis

In Daniel FF. v. Alicia GG., 207 A.D.3d 853 (N.Y. App. Div. 2022), a case before the Family Court of Ulster County, a petitioner sought to challenge an acknowledgment of paternity issued shortly after the birth of a child. The court’s decision centered on the doctrine of equitable estoppel.

In New York, an acknowledgment of paternity is a legal document signed by both the mother and the father of a child, voluntarily acknowledging that the man is the biological father of the child. This acknowledgment establishes legal paternity, confirming the father’s rights and responsibilities regarding the child. It is typically signed at the time of the child’s birth or soon after and is often completed at the hospital where the child is born.

Once the acknowledgment of paternity is signed and properly executed, it has the same legal effect as a court order establishing paternity. This means that the father becomes legally recognized as the child’s parent, with all associated rights and obligations, including the right to seek custody or visitation and the responsibility to provide financial support for the child.

Published on: June 19, 2024

Finding of sexual abuse by father supported by evidence; requirement of supervised visits upheld. Admin. for Children’s Servs. v. Victor P. (In re Victoria P.), 2014 N.Y. Slip Op. 7169 (N.Y. App. Div. 2014)

by Stephen Bilkis

Supervised visitation visits refer to a type of visitation where a third party, such as a social worker or designated family member, is present during the parent’s time with the child. This is done to ensure the child’s safety and well-being while maintaining a controlled environment for the parent-child interaction. The supervising party observes the visits to ensure no inappropriate behavior occurs, and the visits are typically held in a neutral location. In the case of Admin. for Children’s Servs. v. Victor P. (In re Victoria P.), 2014 N.Y. Slip Op. 7169 (N.Y. App. Div. 2014) the father, Victor P., appealed a Family Court decision requiring him to complete a sex offender treatment program and limiting his visitation rights to supervised visits with his children, based on findings of sexual abuse and derivative neglect.

Background Facts

This case stemmed from allegations of sexual abuse against Victor P., the father of Elizabeth P. During a fact-finding hearing, the court found that Victor P. had abused Elizabeth P. and derivatively neglected his other children: Victoria P., Wilma P., and Ivan G. Following these findings, the court issued a dispositional order requiring Victor P. to complete a sex offender treatment program and limited his visitation with his children to supervised visits, at the discretion of the Administration for Children’s Services (ACS).

Published on: June 12, 2024

Parents sued school district over sexual abuse of disabled daughter by bus attendant. K.A. v. Wappingers Cent. Sch. Dist., 2017 N.Y. Slip Op. 4824 (N.Y. App. Div. 2017)

by Stephen Bilkis

In K.A. v. Wappingers Central School District, the plaintiffs sought to recover damages for personal injuries sustained by K.A., a developmentally disabled young woman, while under the supervision of the defendant school district. The court addressed whether the plaintiffs’ late filing of a notice of claim barred their ability to proceed with the lawsuit.

A Notice of Claim is a legal document required in New York for suing a public entity, such as a school district or municipality. It notifies the entity of the claimant’s intention to file a lawsuit and outlines the basis for the claim. Under General Municipal Law § 50-e, a Notice of Claim must typically be filed within 90 days of the alleged incident. This requirement allows the public entity to investigate the circumstances and assess liability. Failing to file a timely Notice of Claim may result in dismissal of the lawsuit (Education Law § 3813[2]). Courts may allow late filing under specific conditions (General Municipal Law § 50-e[5]).

Background Facts

Published on: June 12, 2024

Interference with grandparent visitation rights. Shimunov v. Davydov 179 A.D.3d 812 (N.Y. App. Div. 2020)

by Stephen Bilkis

Interference with visitation rights in New York is a serious matter that can occur in various family dynamics, not limited to disputes between parents. While it often arises in the context of parental visitation arrangements, where one parent obstructs the other’s court-ordered visitation with their child, it can also extend to situations involving other family members or guardians who have been granted visitation rights by the court.

In cases of parental interference, one parent may intentionally obstruct or prevent the other parent from spending court-ordered time with their child. This interference can take various forms, including refusing to comply with the visitation schedule, making it difficult for the other parent to communicate with the child, or even hiding the child to avoid visitation altogether. Such actions can have detrimental effects on the parent-child relationship and the well-being of the child.

However, interference with visitation rights is not exclusive to parents. In instances where grandparents, stepparents, or other relatives have been granted court-ordered visitation rights, interference may occur when one party attempts to impede or undermine those visitation arrangements. This interference could involve denying access to the child during scheduled visitation times, manipulating the child’s feelings towards the visiting relative, or otherwise obstructing the court-ordered visitation process.

Published on: June 10, 2024

Mother challenges court awarding father sole custody. Allison v. Seeley-Sick, 199 A.D.3d 1490 (N.Y. App. Div. 2021)

by Stephen Bilkis

Allison v. Seeley-Sick, 199 A.D.3d 1490 (N.Y. App. Div. 2021) is an appeal from a an order issues in a Family Court Act article 6 proceeding. A Family Court Act Article 6 proceeding refers to cases handled under Article 6 of the New York Family Court Act, which covers matters related to the custody, guardianship, and visitation of children.

These proceedings determine who will be legally responsible for a child’s care, who will make major decisions about the child’s life, and how visitation with a non-custodial parent will be handled. Article 6 provides the legal framework for addressing these issues, focusing on the best interests of the child as the primary consideration in any decision made by the court. This includes evaluating factors such as the stability of each parent, their ability to care for the child, the child’s wishes (depending on their age and maturity), and any history of abuse or neglect. These proceedings are necessary for establishing a legal arrangement that supports the child’s welfare and the rights of both parents.

In Allison v. Seeley-Sick, the order, dated August 2019, encompassed various modifications sought by the petitioner father, ultimately granting him sole custody of the children with supervised visitation for the mother. The ensuing legal debate revolved around the mother’s challenge to this decision, alleging, among other things, an abuse of discretion and failure to establish a change in circumstances justifying the modification.

Published on: June 7, 2024

Appellate Division considered whether the length and terms of an order of proctection were appropriate. Dayonna W. v. Jhon S. 201 A.D.3d 539 (N.Y. App. Div. 2022)

by Stephen Bilkis

In Dayonna W. v. Jhon S. 201 A.D.3d 539 (N.Y. App. Div. 2022), an order of protection was issued against the respondent, directing him to stay away from the petitioner until June 10, 2023. The order stemmed from a fact-finding determination that the respondent committed the family offenses of second-degree harassment and third-degree assault.

In Family Court, the determination of the length and terms of an order of protection is based on several factors, primarily focused on ensuring the safety and well-being of the petitioner. The court considers the specific circumstances of each case, including the nature and severity of the alleged offenses, the relationship between the parties involved, and any history of violence or harassment.

One consideration is the extent of the perceived threat to the petitioner’s safety. If the court finds that there is a substantial risk of harm to the petitioner, it may issue a longer-term order of protection to provide extended protection. Conversely, if the risk is deemed less severe or temporary, the court may opt for a shorter-term order.

Published on: June 6, 2024

Court upheld findings of sexual abuse, neglect, and protective measures imposed. Admin. for Children’s Servs. v. Andrew S. (In re Cashmere T.), 77 N.Y.S.3d 477 (N.Y. App. Div. 2018)

by Stephen Bilkis

Child protective proceedings aim to safeguard the welfare of children and hold individuals accountable when their behavior endangers a child’s safety. In In re Andrew S., the Family Court addressed allegations of sexual abuse and neglect. The case involved complex legal questions about evidence, credibility, and the protective measures necessary to ensure the safety of children in the household.

Background Facts

The Administration for Children’s Services (ACS) initiated proceedings under Family Court Act Article 10 against Andrew S., alleging that he sexually abused one child, Cashmere T., and derivatively neglected three others: Kashane R. S., Keyona R., and Kashawn A.S. Following these allegations, the Family Court conducted a fact-finding hearing to evaluate the claims.