New York Family Law Blog

Published on: April 17, 2024

Court considered whether a child’s father should be awarded guardianship following the death of her mother. Nicole L. v. David M., 195 A.D.3d 1058 (N.Y. App. Div. 2021)

by Stephen Bilkis

Guardianship of a child in New York involves the legal authority granted to an individual or entity to make important decisions regarding the care, welfare, and upbringing of a child who is not their biological or adoptive child. This authority is typically granted by a court and is necessary when the child’s parents are unable or unwilling to fulfill their parental responsibilities adequately.

A guardian assumes responsibility for the child’s physical, emotional, and financial well-being, including providing food, shelter, medical care, education, and guidance. Guardianship grants the guardian the authority to make decisions on behalf of the child, such as healthcare choices, educational enrollment, and participation in extracurricular activities. The guardian is also responsible for ensuring that the child’s basic needs are met and that they receive appropriate support and supervision.

In Nicole L. v. David M., 195 A.D.3d 1058 (N.Y. App. Div. 2021), a case heard by the Family Court of Columbia County, the court evaluated competing claims for custody and guardianship of a young child following the tragic death of her mother. The case involved multiple parties, including the child’s father, maternal aunt, and the mother’s former live-in boyfriend.

Published on: April 15, 2024

Can the Family Court order stimulus payments to be included as part of child support? Josefina O. v. Francisco P., 213 A.D.3d 1158 (N.Y. App. Div. 2023)

by Stephen Bilkis

In Josefina O. v. Francisco P., 213 A.D.3d 1158 (N.Y. App. Div. 2023), a case before the Family Court of Montgomery County, the court was asked to settle a dispute that arose between separated parents regarding child support and federal stimulus payments. Stimulus payments, also known as economic impact payments or relief checks, are financial assistance provided by the government to individuals or households during times of economic hardship or crisis. These payments are intended to stimulate economic activity, support struggling individuals, and mitigate the effects of financial downturns. Stimulus payments are typically distributed through direct deposits, paper checks, or prepaid debit cards.

Background Facts

The case involves a mother and father who are separated and have five children together, born between 2007 and 2017. In August 2019, the father consented to an order of support, agreeing to pay the mother a weekly sum for child and spousal support. However, in December 2020, the mother filed a family offense petition against the father, citing harassment and assault. Subsequently, in January 2021, she initiated a divorce action.

Published on: April 10, 2024

Appellate Court considered a guardianship case related to seeking a special immigrant juvenile status. Juan R.E.M. v. Juan R.E. 2017 N.Y. Slip Op. 6977 (N.Y. App. Div. 2017)

by Stephen Bilkis

Juan R.E.M. v. Juan R.E. 2017 N.Y. Slip Op. 6977 (N.Y. App. Div. 2017) revolves around the efforts of a child to obtain special immigrant juvenile status (SIJS) in the United States. SIJS was designed to provide protection to immigrant children who have been abused, abandoned, or neglected by one or both parents. Established under the Immigration and Nationality Act (INA), SIJS aims to safeguard vulnerable minors who have faced hardships in their home countries and are unable to reunify with their parents due to these circumstances. This status offers a pathway for these children to obtain lawful permanent residency in the U.S., ensuring their safety and well-being.

The eligibility criteria for SIJS are specific and stringent, requiring applicants to meet both immigration and state court dependency standards. To qualify, the applicant must be under 21 years old and unmarried, and they must have been declared dependent on a juvenile court due to abuse, abandonment, or neglect by one or both parents. Additionally, the court must determine that it is not in the child’s best interest to be returned to their home country and that they would benefit from remaining in the United States. This dual requirement, involving both immigration and state court proceedings, underscores the complexity of the SIJS process.

One of the key features of SIJS is that it provides a pathway for undocumented immigrant children to obtain legal status in the U.S., even if they entered the country unlawfully or overstayed their visas. This is crucial as it prevents these vulnerable minors from falling through the cracks of the immigration system and facing potential deportation to unsafe environments. By granting them lawful permanent residency, SIJS allows these children to access essential rights and protections, including the ability to work legally, pursue education, and access healthcare services.

Published on: April 3, 2024

Court considered whether to change the goal for placement of the child from adoption to guardianship. Rebecca B. v. Michael B. 152 A.D.3d 675 (N.Y. App. Div. 2017)

by Stephen Bilkis

In New York Family Court, a permanency hearing is a legal proceeding designed to determine the long-term plan for children who have been removed from their homes due to abuse, neglect, or other circumstances endangering their well-being. These hearings aim to establish a stable and secure environment for the children involved.

During a permanency hearing, the court reviews the progress and circumstances of the child, the child’s family, and any involved agencies since the child’s placement into foster care. It evaluates various factors, including the child’s safety, well-being, and the efforts made towards family reunification or alternative permanency goals, such as adoption or guardianship.

The hearing allows all parties, including the child’s biological parents, foster parents, legal guardians, and representatives from child welfare agencies, to present evidence, testimony, and recommendations regarding the child’s future placement and care. The court considers the child’s best interests as paramount in making its decision.

Published on: April 1, 2024

Whether a father with a history of domestic violence should be awarded custody. Scott v. Thompson 166 A.D.3d 627 (N.Y. App. Div. 2018)

by Stephen Bilkis

In Scott v. Thompson, 166 A.D.3d 627 (N.Y. App. Div. 2018), the custody dispute included allegations of domestic abuse. In child custody determinations, New York courts always prioritize the best interest of the child. When allegations of domestic violence arise, courts must evaluate their impact on the child’s well-being and safety. Courts examine whether either parent has engaged in acts of domestic violence, particularly in the presence of the child. This assessment is vital in determining the child’s best interests and the appropriate custody arrangement. The safety and welfare of the child take precedence, and any history of violence or abuse can influence the parent’s fitness to provide a nurturing and secure environment.

The frequency, severity, and nature of the domestic violence incidents are weighed, considering the potential risk they pose to the child’s physical and emotional health. Moreover, courts consider the protective measures taken by the victimized parent to safeguard themselves and the child from further harm.

By thoroughly examining the circumstances surrounding the domestic violence allegations, courts aim to ensure the child’s safety and well-being while promoting a stable and nurturing environment. Pursuant to Domestic Relations Law § 240(1)(a), in any action or proceeding concerning custody or parental access where domestic violence is alleged, “the court must consider” the effect of such domestic violence upon the best interests of the child along with all the other relevant factors. Ultimately, the goal is to protect the child from harm and promote their best interests, which may involve awarding custody to the parent who can provide a safe and stable environment free from violence and abuse.

Published on: March 27, 2024

Daphne M. v. Wanda J. (In re Caleesta S.) 200 A.D.3d 504 (N.Y. App. Div. 2021)

by Stephen Bilkis

In Daphne M. v. Wanda J. (In re Caleesta S.) 200 A.D.3d 504 (N.Y. App. Div. 2021), the court had to determine whether a nonparent should be granted guardianship of a child over a parent.

In New York, circumstances may arise where a nonparent is considered for guardianship over a child instead of a parent. This typically occurs in situations where the child’s parents are unable to provide proper care or when extraordinary circumstances warrant the appointment of a nonparent guardian. Such scenarios often involve the death or incapacity of one or both parents, leading a nonparent relative or family friend to seek guardianship to fulfill the child’s needs.

Additionally, if a parent has abandoned the child or neglected their parental responsibilities, and evidence suggests that the child’s welfare is at risk, a nonparent guardian may be appointed to ensure the child’s safety and well-being. In cases where a parent is deemed unfit due to issues like substance abuse, mental illness, or criminal behavior, the court may opt to appoint a nonparent guardian to protect the child from harm.

Published on: March 25, 2024

Court determined that it was in the best interests of the child for the father to be awarded sole custody. Olea v. Diaz 194 A.D.3d 721 (N.Y. App. Div. 2021)

by Stephen Bilkis

In determining custody arrangements in New York, several factors are considered. One important factor is the child’s established environment. This includes where the child currently lives and attends school, as well as their social connections and daily routines. Courts aim to minimize disruption to the child’s life by prioritizing continuity and stability.

Another factor is parental fitness. This involves assessing each parent’s ability to care for the child’s overall well-being. Factors such as parenting skills, mental and physical health, and the ability to provide a safe and nurturing environment are taken into account. Courts also consider the past behavior and performance of each parent in fulfilling their parental responsibilities.

The child’s expressed preferences also play a role in custody determinations. While the child’s desires are considered, they are not determinative. Instead, courts weigh the child’s preferences against other factors, such as their age, maturity, and the reasons behind their preferences. Older children may have more weight given to their preferences, especially if they are able to articulate reasoned opinions.

Published on: March 20, 2024

Court determined that the ICPC does not apply to out-of-state, noncustodial parents seeking custody of their children. D.L. v. S.B. 2022 N.Y. Slip Op. 5940 (N.Y. 2022)

by Stephen Bilkis

D.L. v. S.B. 2022 N.Y. Slip Op. 5940 (N.Y. 2022) concerns the interpretation of the Interstate Compact on the Placement of Children (ICPC) regarding out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies. The key question revolves around whether the ICPC applies to such situations.

The ICPC is an agreement among U.S. states, the District of Columbia, and the U.S. Virgin Islands. It establishes procedures and requirements for the interstate placement of children who are in need of foster care or adoption services. The primary goal of the ICPC is to ensure that when a child is placed across state lines, they are provided with suitable care and protection, and that all relevant parties involved in the placement process comply with the necessary legal and administrative standards.

Background Facts

Published on: March 13, 2024

Established paternity is not necessary seeking special immigrant juvenile status. In re Mardin M.-I. 2020 N.Y. Slip Op. 5754 (N.Y. App. Div. 2020)

by Stephen Bilkis

In re Mardin M.-I. 2020 N.Y. Slip Op. 5754 (N.Y. App. Div. 2020) is a guardianship case that is also related to seeking Special Immigrant Juvenile Status (SIJS). SIJS provides a pathway to lawful permanent residency, allowing children to live and work legally in the country. This status offers stability and security, granting access to various social services, educational opportunities, and employment prospects that would otherwise be unavailable to undocumented minors.

Moreover, SIJS shields children from deportation proceedings, offering them protection from removal to potentially dangerous or unstable situations in their home countries. It recognizes the vulnerabilities of immigrant children who may have experienced abuse, neglect, or abandonment, and provides a legal mechanism for them to remain in the U.S. under the care of a guardian.

Additionally, SIJS empowers children to reunite with family members or caregivers who can provide them with a safe and supportive environment. By enabling children to petition for SIJS, they are afforded the opportunity to establish permanent ties with responsible adults who can advocate for their well-being and best interests.

Published on: March 13, 2024

In a guardianship case, the court considered whether there was justification for waiving service of process upon the father. In re TN 2020 N.Y. Slip Op. 50548 (N.Y. Fam. Ct. 2020)

by Stephen Bilkis

In In re TN 2020 N.Y. Slip Op. 50548 (N.Y. Fam. Ct. 2020), a case about the guardianship of a minor child, significant constitutional rights were at stake. The petitioner, acting on behalf of the maternal aunt seeking guardianship of the child, filed a motion to waive service of process upon the child’s father. This motion raised critical questions regarding due process and a parent’s fundamental right to the care and custody of their child.

In a guardianship proceeding in New York, the requirement of service of process is a critical component of safeguarding the due process rights of all involved parties, particularly the parents. When initiating a guardianship petition, the petitioner must ensure that proper notice is served upon all interested parties, including the parents of the child in question.

Service of process involves delivering a copy of the petition and relevant legal documents to the respondent or respondents, typically by personal delivery. This step ensures that parents, who are typically considered interested parties in guardianship proceedings, are informed of the legal action being taken and are given an opportunity to participate in the proceedings.