Articles Posted in Custody

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In this case the Appellate Division examined whether the family court considered the 14-year-old child’s wishes when granting the father visitation.

In making decisions about custody and visitation, the Family Court’s primary concern is to do what is in the best interests of the child. The determination of what is in the best interests of the child requires an examination of a number of factors. One factor is a rebuttable presumption that it is in the child’s best interest to have a relationship with both parents.  In other words, unless there is convincing evidence that it would not be in the best interests of the child to have visitation with the noncustodial parent, the court will allow it.  For example, if there was evidence that visitation would result in the child suffering serious emotional harm or physical harm, then the court would not order visitation.

If the child is old enough, the court will also consider the wishes of the child. In this case, the child, a 14-year old girl, was interviewed in camera.  It appears that the child did not want to spend time with her father, not because she was concerned that he would harm her, but because she did not have a relationship with him.  He was basically a stranger to her and she had no emotional bond with him.

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In this case the Appellate Division reviewed an order of the Family Court of Schenectady County dismissing a mother’s motion to seek visitation with her child. The Family Court’s decision was based on two factors:  the report of the forensic evaluator and the mother’s emotional outburst during the hearing.

In Matter of Jessica D. v Michael E., the father of a child born in 2007 was in 2008 granted full legal and physical custody based largely on the fact that the mother was struggling with drug abuse. In the same order, the mother’s visitation was suspended pending an application to reconsider such order. In 2016, the mother, who had not seen the child in several years, commenced a modification proceeding in Family Court seeking visitation with the child.  A hearing was held in 2018 during which the mother was the only witness to testify. A court-appointed forensic evaluator was admitted into evidence. After the hearing the Family Court denied the mother’s request for visitation stating that it would not be in the best interests of the child. The mother appealed.

In New York courts have determined that generally it is in the best interests of a child to have a relationship with both the mother and the father. Both parents have a right to have access to their child.  When making custody the decisions, taking many factors into consideration, courts seek to come up with an arrangement that gives both parents significant access to the child. A court will deny access if it determines that allowing access would place the child in risk of physical harm or serious emotional harm.  In the case where a parent is battling drug addiction, has no stable place to live and no job, the court will not allow visitation as that parent would not be able to provide a safe environment for the child. However, a court will consider modifying a custody arrangement if there has been a significant change of circumstances since the original custody order.

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This case involves a “best interests” hearing that stems from a motion of the father to modify the custody arrangement giving him sole legal and physical custody of his children. It had been previously established that the mother had alienated the children from their father, and as a result, the children do not wish to have a relationship with their father.

Parent alienation occurs when one parent purposefully manipulates the child into having negative feelings toward the other parent. As a result, the child develops sad, confused, and angry feelings toward the other parent, and does not want to spend time with that parent. In Matter of Eddie S. v. Sylvia S., the father argued that the mother manipulated the children to have negative feelings toward the father.  Her motivation in doing this was to satisfy her mother—the maternal grandmother of the children, on whom the mother was financially dependent. Parental alienation is frowned upon by the court. When parental alienation is proven, the Family Court often takes steps to rectify the situation by making a change in the custody arrangement.  However, because parental alienation is complex, a change in custody that allows the alienated parent to spend more time with the child is not always possible and is not always in the best interests of the child.

In this case the court found that it would not be in the best interests of the children to award the father sole legal and physical custody of the children even though parent alienation was found.  The court listed multiple reasons for its conclusion.  First, it noted that while the mother had taken actions to alienate the children from the father, the father failed to take affirmative steps early on that would have likely neutralized the mothers efforts to alienate the children.   For example, even though he had joint custody, he made little effort to enforce his parenting rights and be a part of their lives. In fact, he was unaware that the children were being homeschooled. Even when the mother took actions to interfere with visitation, the father refused to seek a contempt action against her or do anything else to asset his rights as he did not want to get her in trouble.

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In this case, the Supreme Court considered whether a parent’s actions amounted to parental alienation such that a custody modification was warranted.

It has been well-established that generally it is in the best interests of the children for them to have positive relationships with both parents.  Ideally, despite their romantic relationship ending, parents will work toward fostering a good co-parenting relationship and support each other in efforts to maintain good relationships with the children.  This does not always happen.

Parental alienation occurs when one parent intentionally manipulates the child into having negative feelings toward the other parent. This is often accomplished by saying negative things to the child about the other parent or manipulating circumstances so the other parent looks bad in the child’s eyes.  For example, the noncustodial parent may need to reschedule time with the child.  Instead of simply working with the noncustodial parent to reschedule and supporting him or her in that effort, the manipulating custodial parent refuses to reschedule and tells the child that the noncustodial parent does not make visitation a priority.  If the custodial parent continues to speak negatively about the noncustodial parent, the child may start to harbor negative feels toward the noncustodial parent and as a result refuse to see the noncustodial parent.

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Cases involving international visitation have many challenges.  The parents must have the finances to pay for visitation travel. Travel logistics must be worked out. The parents or others who will accompany the child must have the legal ability to travel internationally.  Also, in some instances there are concerns related to whether the parent requesting international visitation would return the child to the United States. Here the Appellate Division considered a case in which the mother requested visitation with her child in Madrid, Spain, while the father preferred that she have access to the child in Ecuador, South America.

Each parent filed a petition with Family Court for custody of the child.  The mother then withdrew her petition because she was moving to Madrid where she had family.  Instead, she petitioned the court for visitation with the child.  The father was granted sole legal and physical custody.  The father proposed that the mother have visitation in Ecuador where the mother was born and where the maternal grandmother lived. He also stated that the child’s paternal grandmother travel with the child to and from Ecuador for the visitation.  The mother responded that she wanted visitation in Madrid. She indicated that while she would not legally be able to travel to the United States to pick up the child, she had family members who would be willng to bring the child to and from Madrid.  The father expressed concerns about the arrangements related to the child traveling to Madrid. Family Court sided with the father and awarded the mother visitation in Ecuador.  The mother appealed.

In reviewing the Family Court’s decision, the Appellate Division considered a number of factors.  First, the court considered the logistics involved in getting the child to and from Madrid for the visitation.  The court had concerns with the people who would accompany the child.  Even though they were members of the child’s family they had never met the child. In addition, the individuals who the mother said would be responsible for accompanying the child to and from Madrid were not sure if they would be able to obtain visas to travel to the United States.  On the other hand, if the visitation occurred in Ecuador, the paternal grandmother would be willing to accompany the child to and from Ecuador, and there was not a question as to whether the she would be able to travel to and from Ecuador.

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In this case the Appellate Division considered an appeal by the mother of an order from the Bronx County Family Court granting the father primary physical custody of their child.

When considering custody, the Family Court’s overriding consideration is what is in the best interests of the child.  Ideally, both parents are equally capable of providing the care the child needs and are able to co-parent effectively despite the end to their romantic relationship.  However, that is not always the case.  Factors that the court will consider include:  which parents has been the  primary nurturer of the child, each parent’s parenting skills, the physical and mental health of each parent, whether there has been domestic violence in the home, each parent’s work schedules, the child’s relationship with other family members, the child’s preferences, and parental cooperation.  No one factor is determinative and the court has a great deal of discretion in making custody decisions.  The court will look at all factors and consider evidence presented by both parents to figure out the custody and visitation arrangement that is in the best interests of the child.

In Dariel M. v. Aurelyn Z.G., the parents split up and the mother left the family home, leaving the child in the family home with the father.  In the two years that she had lived away from the family home, appears as if the mother was not greatly involved in the raising of the child.  In making its decision, the court gave great weight to the fact that the father had been the child’s primary caregiver for the 2 years leading up to this petition for custody. This means that father took the lead in providing day-to-day care for the child including tending to the child’s emotional, physical, and educational needs.  Further, the court noted that the father was better able to provide a stable environment for the child and tend to the child’s educational and medical needs.  The mother, on the other hand, had not taken an active role in proving for the child’s educational needs or medical life for the past 2 years.  In fact, she had allowed the child’s health insurance coverage to lapse.  In addition, the mother did not have a stable job or stable housing.

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Typically, custody disputes are between the mother and father of the child.  However, family relationships are often complex, resulting in custody disputes between parents and members of the extended family. In Heather U. v. Janice, the custody dispute was between the mother of the child and the child’s great-grandmother.  The mother shared joint legal custody with the great-grandmother, but the great-grandmother was awarded physical custody of the child and the mother was awarded visitation.  Because the mother had issues as to how the great-grandmother was caring for her child, the mother petitioned the court to modify the custody agreement.

Upon reviewing the petition of the mother in which she alleged that circumstances had changed such that a change in the custody order was appropriate, the Family Court gave both the mother and the great-grandmother two weeks to provide the court with written submissions with details about the alleged changed circumstances.  Upon receipt of a written submission from the great-grandmother but none from the mother, the Family Court dismissed the mother’s petition, concluding that the mother had not established that a change in circumstances had occurred such that a modification of the prior custody order was appropriate.  The mother appealed to the New York Supreme Court.  The Supreme Court upheld the Family Court’s dismissal.

Under New York law, a custody order will only be modified if the circumstances have changed such that a modification would be appropriate.  For example, if one of the factors that contributed to a father being awarded sole legal and physical custody was that the mother was abusing alcohol, a changed circumstance would be that the mother has been sober for an extended period.  Or, if one of the factors that contributed to a mother being awarded custody was that the court determined that she had better parenting skills, a changed circumstance would be that the child was doing poorly at school and was not receiving appropriate medical care or mental health care.

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In Farner v. Farner, the Appellate Division considered whether a change in the mental health of the custodial mother was sufficient grounds for a custody modification.

Upon divorcing, the mother and father created a parenting agreement that was incorporated into their divorce decree.  According to the agreement, the mother was designated the primary residential parent.  She lived in Georgia. The father, who lived in New York, was awarded visitation.  Sometime later, the father became concerned about the well-being of his child in the care of the mother and her live-in boyfriend and petitioned the court for a modification to the custody and visitation arrangement.

In New York, custody arrangements are meant to be stable. The court will not alter an arrangement on a whim, as it is important for the child’s living arrangements and relationship with his or her parents to be stable and consistent.  However, the court does recognize that circumstances do sometimes change from when a custody agreement was established.  If there is a substantial change in circumstances, upon petition, the court will consider whether a change to the custody or visitation arrangement is in the best interests of the child.  One reason that the court will change a custody arrangement is if a change in the physical or mental health of a parent negatively impacts the parent’s ability to care for the child.

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In this case the Family Court was asked to determine whether to modify a visitation order to give the mother unsupervised visitation with her children.

In New York, visitation with a child is typically unsupervised.  This means that the non-custodial parent is generally permitted time alone with the child and is free to do whatever he or she chooses to do with the child as long as it is not in violation of the custody order. If, however, the court determines that it is not safe for the child to spend time alone with the parent, then the court will order supervised visitation.  Family Court will order supervised visitation when it determines that the child may be in danger if alone with the parent.  For example, if the parent is struggling with alcohol or drug addiction, the court would likely require supervised visitation.  If the parent has physically abused the child, the court may not want the parent to be alone with the child.  Also, supervised visitation may be required if there is a concern that the parent may abduct the child.

In Spencer v. Killoran the mother did not have custody of her children.  When the children were 6 years old, the court awarded custody to the cousins of the mother because of the mother’s abuse of alcohol. Three years later, the mother requested access to her children in the form of visitation.  Not entirely convinced that the mother had stopped abusing alcohol, the court entered an order allowing the mother unsupervised scheduled visitation with her children with the stipulation that she was monitored daily for alcohol use for a period of 6 months.  On two dates during the 6-month period, the mother tested positive for alcohol use.  The cousins petitioned the court to modify the visitation schedule to require the mother to have only supervised visits.  The court so ordered.  However, the court did not set a supervised visitation schedule, and instead directed that the visitation would be as the mother and cousins agreed. The mother appeals, arguing that the court erred in modifying the previous visitation order.

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In this case the father, who had full custody of the child, appealed a family Court decision that modified a custody agreement to give full custody to the mother.  In New York, custody decisions are meant to be final. Of course, that does not mean that Family Court will not ever modify custody arrangements. Modifications are permitted, but only in relatively extraordinary circumstances.

Whenever a court makes a custody determination, the foremost consideration is what is in the best interests of the child.  In making an initial determination the court typically reviews a great deal of evidence submitted by both parents.  Some of the factors that the Family Court will consider include who was the primary nurturer of the child, the parenting skills of each of the parents, the physical and mental health of each of the parents, work schedules, family relationships, and, particularly if the child is older, the child’s preference.

Once the court has considered these factors and has made a custody determination, it will not change its decision unless one parent alleges that there is a change in circumstances such that a change is warranted.  For example, if one parent submits evidences that the other parent’s physical or mental health has declined such that he or she is no longer able to properly care for the child or provide a safe environment for the child, the court would want to make an further inquiry into the situation to see if a custody change is warranted.

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