Custody

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 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: February 19, 2024

Determining the proper jurisdiction in a divorce and child custody dispute where parties have ties t New York and the United Kingdom. William L. v. Therese L. 66 Misc. 3d 1228 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

The doctrine of forum non conveniens, a Latin term meaning “forum not convenient,” allows a court to decline jurisdiction over a case if another forum would be more appropriate for the resolution of the dispute. In New York, this doctrine applies to various legal matters, including divorce and child custody disputes, when issues of jurisdiction and forum selection arise.

In divorce and child custody cases, forum non conveniens may come into play when one party argues that another jurisdiction would be more suitable for resolving the dispute. Factors considered by the court include the parties’ residences, the child’s welfare, the location of evidence, financial circumstances, and court familiarity with the case.

For example, if a couple has ties to both New York and another country, and the child primarily resides outside New York, a court may find that the other jurisdiction is more appropriate for adjudicating custody matters. Similarly, if evidence and witnesses are predominantly located in another jurisdiction, it may be more convenient for the case to be heard there.

Published on: February 14, 2024

Where a couple adopted children, the court determined that they would share legal custody. N.K. v. S.R., 2023 N.Y. Slip Op. 23344 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

In custody cases, regardless of the parents’ sexual orientation or the children’s adoption status, the paramount concern remains the well-being and best interests of the children involved. While this particular case involves a same-sex couple and adopted children, the fundamental principles guiding the court’s decision-making process are universal. The court must carefully consider various factors, including the children’s emotional and physical health, their relationship with each parent, stability, and the ability of each parent to provide a nurturing and supportive environment. Ultimately, the goal is to ensure that the children are placed in a living arrangement that promotes their overall welfare and development.

Background Facts

S.R. and N.K. married in 2007. The children, SC1 and SC2, are S.R.’s cousin’s biological children, placed in their care as kinship foster parents. They began fostering SC1 in 2009 and SC2 in 2010 in Binghamton, New York.

Published on: January 29, 2024

Appellate Division upholds custody to the mother, orders hearing for visitation by incarcerated father. Bell v. Mays, 127 A.D.3d 1179 (N.Y. App. Div. 2015)

by Stephen Bilkis

In New York child custody cases, including those involving an incarcerated parent, the paramount consideration is the best interests of the child. The court considers factors such as the child’s safety, well-being, and overall welfare in determining custody arrangements, aiming to make decisions in the child’s best interests.

Background Facts

In 2002 the Family Court issued an order granting custody to the mother. An incident in December 2002 involved domestic violence, leading to criminal charges and a lengthy prison sentence for the father. The children, unfortunate witnesses to this event, experienced a severed paternal relationship.

Published on: December 4, 2023

Court considered whether a custody modification was warranted. A.S. v. L.C., 2023 N.Y. Slip Op. 50042 (N.Y. Fam. Ct. 2023)

by Stephen Bilkis

A Lincoln hearing, named after a court case, is a process where the judge interviews a child privately to understand their preferences regarding custody or visitation. The purpose is to consider the child’s viewpoint without parental influence when making decisions about their welfare. The hearing allows the judge to gather information directly from the child to help determine what arrangement would be in their best interests. It ensures the child’s voice is heard in court proceedings involving custody and visitation disputes.

In A.S. v. L.C., 2023 N.Y. Slip Op. 50042 (N.Y. Fam. Ct. 2023), a contentious child custody case, testimony elicited during a Lincoln hearing was used to help the court determine the custody arrangement. The initial custody arrangement granted the mother primary custody of the child, with the father having visitation rights.

Background facts

Published on: November 13, 2023

Court decided that limitation visitation for incarcerated parent was reasonable. Smith v. Smith, 92 A.D.3d 791 (2012)

by Stephen Bilkis

What happens to parental rights when a parent is incarcerated in New York state. Generally, parents retain their parental rights, including the right to visitation. However, the caveat, is that every decision that a New York court makes with respects to children is guided by what is deemed to be in the best interests of the child. In New York, the principle of “best interests of the child” serves as a foundational guideline for courts in determining custody and visitation arrangements.

In New York, this standard considers various factors, including the child’s physical and emotional health, the stability of each parent’s living environment, and the ability of parents to meet the child’s needs. Ultimately, the court aims to make decisions that promote the child’s

When applied to incarcerated parents, the “best interests of the child” standard takes into account a range of factors unique to the circumstances of parental incarceration. Courts typically consider the length of the sentence, the nature of the offense, the potential impact on the child’s emotional well-being, and the practical challenges associated with maintaining a relationship. While parental incarceration alone does not automatically preclude visitation, the court assesses whether such visitation might be detrimental to the child and may impose conditions such as supervised visitation or limitations based on logistical constraints. The overarching goal remains to strike a balance between maintaining the child’s connection with the incarcerated parent and ensuring their overall welfare and stability.

Published on: November 6, 2023

Appellate Court reversed Family Court custody modification decision due to failure to interview children. Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113 (N.Y. App. Div. 1990)

by Stephen Bilkis

Visitation disputes arising from divorce cases often cast a shadow on the lives of children caught in the crossfire. The case of Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113 (N.Y. App. Div. 1990), provides a poignant example of the complexities and challenges inherent in such legal battles.

Background

The Koppenhoefer case centers on Hans and Alicia, children of divorced parents entangled in visitation disputes since 1977. The divorce judgment, including a separation agreement, awarded custody to the mother while granting the father liberal visitation rights. Problems arose due to the lack of structure in visitation, prompting ongoing complaints from both parents. In 1982, Family Court modified the visitation terms, setting specific hours for weekends and midweek visits. Alimony was terminated, and child support increased to $105 per week.

Published on: October 2, 2023

Family Court refused to modify custody where father failed to present evidence to support the change.Matter of Madden v. Cavanaugh, 307 AD2d 266 (N.Y. App. Div., 2003)

by Stephen Bilkis

Child custody battles can be emotionally and legally challenging. In this Matter of Madden v. Cavanaugh, 307 AD2d 266 (N.Y. App. Div., 2003), the issue before the Family Court order in Westchester County was related to a custody modification.

Modifying child custody arrangements is a significant legal step and requires adherence to specific guidelines to ensure the best interests of the child involved. In New York, as in many jurisdictions, courts prioritize the welfare of the child above all else. If a parent wishes to modify an existing custody order, they typically need to demonstrate a substantial change in circumstances since the initial order was established. This could involve changes in the child’s living situation, a parent’s employment, health conditions, or other factors impacting the child’s well-being.

The requesting parent must provide compelling evidence supporting the modification and show how it aligns with the child’s best interests, focusing on their physical, emotional, and educational needs. Courts emphasize maintaining stability and consistency in a child’s life, so any proposed modification should enhance the child’s life rather than disrupt it. Additionally, the modification should encourage the child to maintain a strong relationship with both parents, assuming both parents are fit and suitable caregivers. In some cases, the court may appoint a Guardian Ad Litem or an attorney for the child to represent the child’s interests during the modification proceedings. Understanding these criteria is essential when seeking a modification of child custody arrangements. Consulting with a knowledgeable New York family law attorney can provide valuable insights and legal expertise, increasing the likelihood of a successful custody modification based on the child’s best interests.

Published on: September 27, 2023

Court determined that father’s parental alienation actions required a modification in the custody order. Grabowski v. Smith, 123 N.Y.S.3d 313 (N.Y. App. Div. 2020)

by Stephen Bilkis

The case of Grabowski v. Smith revolves around a custody and visitation dispute between petitioner mother Jacquelyn M. Grabowski and respondent father Jay Craig Smith, Jr. The Attorney for the Child (AFC), Kimberly M. Seager, also plays a pivotal role in the legal proceedings.

In custody or visitation proceedings, an AFC serves as the legal representative for the child involved. Unlike attorneys representing parents, the AFC’s sole allegiance is to the child’s best interests. This involves conducting an independent assessment of the child’s circumstances, preferences, and overall well-being. The AFC becomes the child’s voice in court, expressing their wishes, concerns, and advocating for outcomes aligned with their welfare. This representation is especially vital when the child’s interests may not coincide with those of the parents. The AFC’s responsibilities encompass legal counsel, courtroom representation, and ensuring the child’s views are considered in decisions. Ethical considerations guide the AFC, who must prioritize the child’s welfare, even if their preferences differ from what the AFC believes is in their best interests. Through these responsibilities, the AFC plays a pivotal role in safeguarding the child’s rights and ensuring their well-being remains paramount throughout the legal proceedings.

Background